Irony Meter Cleanup On Aisle Four!

Rarely do I come across a piece of legal history I know nothing about that is so steeped in irony it almost hurts.

I recently saw, for the first time, The Ox-Bow Incident. I’d heard about it before and it was on one of the high-numbered pay cable channels we get and figured it was worth checking out. Released in 1943 (and based on the novel of the same name published in 1940), it’s the story of a mob in a small western town that forms to track down and lynch a trio of cattle rustlers who apparently murdered a local rancher. Of course they didn’t – the whole thing is a taught psychological study of mob justice and how inflamed passions can lead to horrible outcomes. In this case, the three men and hanged and only later does the mob learn they were innocent.

OxBow

The movie struck me as the kind that law profs like to write about (there’s a thriving trade in analyzing how lawyers are portrayed in media), so I went looking for any scholarly discussion of The Ox-Bow Incident. I found a couple of interesting articles, one of which had an astounding tidbit in it that I had to follow up on.*

As I said, the movie came out in 1943. The author of the article expressed amazement that such a movie got made in the middle of World War II, given that it took aim at the traditional Western narrative of rugged frontier exceptionalism. Whatever else it is, The Ox-Box Incident is an unflattering portrait of the American West. It could never have been made during the First World War when, he writes:

[when even a patriotic epic celebrating the American Revolution became a target for federal seizure and prosecution on the chance that the film might excite anti-British sentiments.

What the holy hell? I followed the footnote and saw the same of the film was The Spirit of ‘76 and off to Wikipedia I went.

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Released in 1917, just after the United States entered World War I, it was, as you’d expect, about the American Revolution. It’s the tale of Catherine, a woman of mixed heritage (French father and Native American mother) who, somehow, becomes the “morganatic wife” (I had to look it up) of King George III. Honked off at George and by the treatment of the American colonists, she returns to become a hero of the American Revolution.

Pretty stirring stuff, right? I mean, hugely melodramatic, but still, it makes you want to stand up and waive a flag, doesn’t it? So what was the problem?

The problem was that, at the time the movie was released, we had just begun to fight in the war with the British as our allies. Allies who apparently weren’t up for depictions of

[quote]multiple atrocities committed by the British side during the war, including soldiers bayoneting babies and raping unarmed women, the Wyoming massacre, and the Cherry Valley massacre.[/quote]

So when the film premiered in Chicago the head of the local film censorship board – whose name was, I shit you not, Metallus Lucullus Cicero Funkhouser – confiscated it and forced edits. It showed in Chicago in edited form, but after the cuts were restored for a showing Los Angeles the producer, Robert Goldstein, was arrested, tried, convicted, and sentenced under the Espionage Act. He served three years of a ten-year sentence before he got a commutation from Woodrow Wilson.

There you have it – a movie about the “spirit of 1776,” which presumably has more than a little to do with love of liberty and fighting tyranny – was suppressed by the nation it celebrates, to the point that the person who made it went to prison for years. They used to say that irony died after 9/11, but I’m surprised there was enough of it left after that explosion of ironic particles for that to matter.

ObiWonIrony

Fun fact – if you’re wondering why the First Amendment didn’t protect Goldstein from going to prison, consider two things. First, the Supreme Court, in general, was bad on the First Amendment around the time of the First World War. Second, at the time the Supreme Court had held that the First Amendment didn’t cover movies. They were “a business, pure and simple, originated and conducted for profit” not “part of the press of the country, or as organs of public opinion.” The case was overruled in 1952, but that was much too late for Goldstein.

Not quite so fun fact – according to the Wikipedia entry, it’s unclear what became of Goldstein after his prison term. He returned to Europe and it was thought he died in the Holocaust, but there’s some evidence he might have gotten out in 1938. Nobody’s really sure.

* Not online – Harry F. Tepker, Jr., The Ox-Bow Incident, 22 Okla. City U. L. Rev. 1209 (1997)

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Genesis – Ten of the Best?

Prog magazine recently asked their readers to help them identify the cream of the crop of Genesis tunes. Being that Genesis is one of my favorite bands I threw in my two cents, voting for the ten “best” (actually my favorites) tracks. I thought I’d provide some explanation of my choices, as well as point out one honorable mention that I couldn’t vote for in the poll.

As I suspected, this was pretty tough. I didn’t put any particular limitations on my choices (only one song from any album, etc.), but I did try and cover as much of the band’s history as I could. Here they are, arranged chronologically . . .

“The Musical Box” from Nursery Cryme (1971)

A great, weird, story song with a thunderous climax. It’s a great example of what the band was in between Anthony Philips leaving and Steve Hackett joining, as there’s lengthy bits where Tony Banks is filling in the lead guitar slot with a Hohner pianet run through a cranked up fuzz box.

“Watcher of the Skies” from Foxtrot (1972)

Two words – Mellotron intro. Yes, the tricky rhythm that takes over for that (courtesy of Phil Collins) is great, too, but there’s nothing quite like that huge, ominous opening – possible because Banks accidentally got the Mellotron to playback two tapes at once.

“Can-Utility and the Coastliners” from Foxtrot (1972)

All that’s great about classic Genesis in an easily digestible package. Mythical lyrics? Check (the story of King Canute and the waves). Multiple solos? Check (including Mellotron, not normally a solo instrument). Symphonic grandeur? You bet. If I need to play one song to someone to show them what Genesis was like in its prog heyday, this would be it.

“Firth of Fifth” from Selling England By the Pound (1973)

The song that launched a thousand prog bands. This is the template for symphonic prog going forward – classically inspired piano intro, more mythical lyrics, widdly synth solo followed by soaring guitar solo. And a flute solo! Never better than the original.

“In the Cage” from The Lamb Lies Down On Broadway (1974)

It’s hard to take one track from The Lamb . . . because they work so well together, moving from one song to another. This is the best choice to pull out and let stand on its own, I think. Another great solo from Banks. Gabriel’s vocals are particularly good, too.

“Los Endos” from A Trick of the Tail (1976)

Must have been a lot of pressure to get this right, since calling it “The End” means it’s your concert closer for years to come. Of course, they did. I particularly like the call backs from earlier in the album (from “Dance on a Volcano”) and from before (the “there’s an angel standing in the sun . . .” subdued lyrics from “Supper’s Ready”).

“Blood on the Rooftops” from Wind & Wuthering (1976)

I didn’t really get into this track until I heard Steve Hackett playing it in recent years, but it’s really grown on me. Hackett’s nylon-string guitar work sits well with Banks’ Mellotron sweeps and Collins’ vocals/lyrics have a deep melancholy to them that really stands out. Fits the grey album cover perfectly.

“Cinema Show” from Seconds Out (1977)

The studio version of this track is great, but this live version (with Bill Bruford on drums) is epic. It’s one of those prog mini-epics that hit my sweet spot (see also, “Starless” by King Crimson and “Squarer for Maud” by National Health, among others), with the delicate vocal first section giving way to a fabulous (and notably three piece) instrumental section.

“Me & Sarah Jane” from Abacab (1981)

Another weird story song, this time about a guy who makes up a girlfriend (and then mourns her departure). Proof that the band could still do interesting musical things in a shorter, more outwardly pop kind of vein.

“Domino” from Invisible Touch (1986)

While the band climbed the pop charts they kept making lengthy, weird deep cuts that really came off well live. This works as kind of a later-day “Cinema Show,” with the song-based first section and driving second section. “We’re all the next in line,” as they say.

Honorable mention

“Behind the Lines > Duchess > Guide Vocal” from Duke (1980)

The Prog poll listed each track separately, which means I couldn’t vote for this hunk that leads off Duke. The band originally toyed with the idea of a lengthy Duke suite, but wound up breaking things up over the album (they did it all together live, though). I love how these three tunes work together, so I’ll add them to my list.

Am I right? Am I wrong? Does it matter? It’s all great!

Draws Suck

For the longest time being and American soccer fan meant, among other things, getting stick from fans of other American sports about what shit soccer is because games can end in draws. Scoreless draws, no less! Sure, the occasional NFL game winds up tied, but nobody likes it, and in every other major sport teams play until there’s a winner. They even changed the rules for college football to provide for endless overtime if needed.

My answer to this has always been about how goals are precious in soccer and, sometimes, a draw is a just result. More than that, a team that battles back to “grab a point” with a late goal is just as exciting as a team scoring a late winner. Sure, there are boring draws in soccer, but there are boring games in every sport.

What I have noticed in soccer, though, is the tendency to treat draws as better results than they are. It makes me grind my teeth every time I hear a manager or player talk about “playing for a draw,” especially in a road game. It’s one thing, for example, to look at a US World Cup qualifier in Costa Rica and say a draw as a good result all things considered; it’s completely different to start the game playing for a single point.

I’ve been thinking about draws in the wake of the final weekend of the English Premier League, which saw Manchester City defend their title over a charging Liverpool. Here’s how the final table shaped up (via the BBC):

EPL Table

I’ve included the top four there just to show how far out in front Man City and Liverpool were. For comparison’s sake, Liverpool’s 97 points would have won the title any other season this century, except for last season (Man City had 100!). It was a two horse race for many months, but Man City was always a nose ahead, for one simple reason – draws.

Much has been made of the fact that Liverpool lost only one game this season and how odd it is for them to come second to Man City, who lost four. How does something like that happen? Well, for one thing, the two teams played twice during the season, with Man City winning once and the other winding up in a draw. That certainly helped Man City’s hopes.

More than that, it’s that Liverpool drew too many games. Sure, Man City lost four, but they only drew twice, whereas Liverpool drew seven times. As a result, Man City won more games than Liverpool, which seems as good a basis as any for determining a champion.

The language of soccer is filled with talk about a team “getting a result” when they draw. And, sure, they get a point for the standings, which is better than nothing. But one point is closer to none than the three points you get for a win,* so it perhaps makes more sense for teams to privilege victories over “results.” I’m reminded of the stat-based theory that NFL teams should go for it more on fourth down. The benefits of pushing for a win (or a first down) are so much higher than what you risk in terms of losing.

Bottom line – the best way of winning a championship in just about any sport is to win as many games as you can. There can be good draws – Liverpool’s late point against Everton was better than nothing – but most of them aren’t. Draws suck. Playing for a draw is bad strategy in the long run. The sooner the soccer world realizes that the better.

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* Fun fact. Before the 1980s standings were based on two points for a win, one point for a draw. Even using that standard, the result is the same – Man City wins the title by a point, 68-67.

Reassessing Sportsmanship

So this is probably the weirdest goal you’ll see in (nearly) top-flight soccer this year (video* via).

You’re seeing that right – one team basically gets out of the way while the other walks the ball into the net, tying the game at 1-1. What the hell was going on? Sportsmanship, or so it’s being sold. I’m more than a bit confused.

But first some background, both personal and contextual.

You know how sometimes you see publishing or distribution deals that give the US rights to one company and another firm gets the rights for “rest of the world”? I’m kind of that way with soccer loyalties. Here in the US my team is DC United. I’ve followed them since MLS started in 1997, from early domination to later doldrums and everything in between. For the rest of the world, so to speak, my team is Leeds United.

Scarves1Crop

They’re currently toiling in the second tier in England (which is called the Championship and is right above the third-tier league called . . . League One – yes, it’s confusing). Leeds was peaking when I started following soccer closely in the 1990s and something about them attracted me. They’ve since overspent and plummeted down the ranks in England, going so far as the aforementioned League One before settling into a fairly consistent pattern of disappointment in the Championship.

Which brings us to this season. With a new manager, the enigmatic Marcelo Biesla, Leeds has been in the thick of the promotion race from the jump. The top two teams in the Championship automatically move up to the Premier League the next season, while the next four (third to sixth places) go into a playoff to determine the third promoted team. Leeds has been solidly within the six for most of the season, and had some hopes of snagging one of the top two spots, but some recent bad performances basically ruled that out.

So it was that they hosted Aston Villa on Sunday. Villa is also among the six, so the game still had some bite to it. Which is how this happened.

Essentially, with a Villa player down apparently injured around midfield, the Leeds players kept playing. For years the “sporting” thing to do was for one team to play the ball out so the injured player could be treated, but more recently it’s been made clear that it’s the referee’s job to stop play. As we tell kids at the lowest level of little league anything – you play to the whistle. Villa took offense and a brouhaha erupted (complete with a pretty bad dive by Leeds forward Patrick Bamford).

So, Bielsa had his team lay down so Villa could score the equalizer. What made it more farcical was that Leeds defender Pontus Jansson either didn’t get the memo or disagreed with the boss, making an attempt to tackle the ball away. The game ended 1-1, keeping Villa in position for the playoff while finally extinguishing any remote chance (it was very very remote) of scraping back into the top two and earning automatic promotion.

Bielsa’s gotten his fair share of praise for this as an example of good sportsmanship. Although Alexi Lalas lays the blame at the clumsy feet of the players:

Naturally, others suggest that there was nothing really to lose, since Leeds had no real chance of getting second place anyway, or that Bielsa is still trying to rebuild his image after a “spying” scandal earlier in the season. Regardless, the end result is the same – the team essentially forfeited a win and sacrificed two points in the standings to affirm an unwritten rule that maybe shouldn’t be honored anymore.

This all reminds me of something I wrote about earlier this year in the wake of the Rams/Saints fiasco before the Super Bowl – in 1999 Arsenal manager Arsene Wenger demanded that his team replay a FA Cup match against a lower division team after Arsenal had scored a goal in a moment of confusion following a similar incident – the other team played the ball out to allow an injured player to get treatment, then an Arsenal substitute pounced on the ensuing throw in. I’ve always viewed that as a great example of sportsmanship where Wenger really put something on the line – had Arsenal lost the replay they would have been out of the tournament.

But, truth be told, I’d don’t care about Arsenal’s success. Leeds, on the other hand, I care about, so I’m having to rethink my ideas on sportsmanship in these situations. I mean, given the point of the season where it occurred it didn’t matter a whole lot, so in such situations there good reason to be magnanimous. Plus, the laws of the game (soccer has laws, not rules, you understand) could be clearer, as it says that the ball is out of play only when it’s actually crossed a boundary or “play has been stopped by the referee.” But, obviously if a team kicks the ball out intentionally that’s still out of play, so where does that get you?

On the other hand, unspoken rules – “gentleman’s agreements” – are supremely flimsy. I’m generally of the opinion that a right without a remedy, without a means of enforcement, is no right at all and that same’s true for an unwritten rule in sports. Leeds’ players did nothing wrong by playing on when the ref didn’t stop the game. That’s his job, not theirs. It’s the same thing as a player correcting a ref’s bad call – it’s the ref’s job to get things right, not the player’s to atone for his sins. In other words, it’s above and beyond the call to play the game with complete honesty. And, honestly, does anybody believe that if the same situation happened in the playoff final, with promotion at stake, that Bielsa would have done the same thing?

I don’t think so. I hope he wouldn’t. There’s a world of difference between cheating and taking advantage of an opponent’s expectations. All may be fair in love and war, but as the old saying goes, soccer is more important than that!

* Apologies for the lack of embedded video. Couldn’t figure out how to get Deadspin’s player to work on the blog.

Why We’ll Never Win the War

Unless you’ve been living under a rock recently – or perhaps on jury duty – you’re no doubt aware that infamous drug lord Joaquin Guzman (aka El Chapo) was convicted of charges in a New York federal court that will likely leave him in prison for the rest of his life. The US Attorney had a big press conference afterward in which he hinted that maybe this time, they’ll finally make some headway in the War on (Other People’s) Drugs.

That is, of course, horseshit. I’ve long said that the War is really a war on the human desire to escape our shitty world and no amount of law enforcement is really going to change that. Writing at The New Yorker, Patrick Radden Keefe sums this up more succinctly than I’ve ever seen before:

But there is a deeper sense in which the rhetoric we use when we talk about the border and the war on drugs is misguided and always has been. The real engine for the cross-border trade in marijuana, cocaine, methamphetamine, heroin, and fentanyl is not the clever salesmanship of Mexican crooks—it’s the rampant demand of American addicts and recreational users. This is a point that seldom impinges on our national dialogue about the border with Mexico: the drug trade is dynamic. What makes it unstoppable is not weak border protections or wily Mexicans but the insatiable American appetite for drugs. Where there is money and demand, trade will flourish, borders be damned. Years ago, I interviewed a former D.E.A. official who told me about a high-tech fence that was put up along the border in Arizona. ‘They erect this fence,’ he said, ‘only to go out there a few days later and discover that these guys have a catapult, and they’re flinging hundred-pound bales of marijuana over to the other side.’

Under, over, through: as long as there is an American demand for drugs, drugs will find their way into America.

I’m in the middle of a book about another long, pointless, costly war – World War I. One recurring theme of A World Undone: The Story of the Great War, 1914-1918 is that once the Western Front settled down into a stalemate, generals kept throwing offensives at the other side in spite of all the evidence that the only result was to get lots of men killed. It’s as if no one was capable of backing away and saying, “this isn’t working, we need to try something different.” The War on (Other People’s) Drugs is the same. It’s failed and it’s been failing for decades. When are we going to realize that one more offensive, one more big prosecution, isn’t going to change anything.

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Where the Magic Happens

Sometimes it’s interesting to see where creative types do their work, to get a feel for the environment that leads to their creativity. In the spirit of creative transparency, and the fact that it’s a new year and all, I thought I’d share mine.

This is where I work:

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Ha! That’s actually where I work, but it’s not really what I’m on about (my office is on the back side, anyway). Here’s where I get my creative juices flowing:

Studio2

If you’re thinking “that’s a lot of musical equipment for a writer’s room” you’re not wrong. It just so happens that the PC on the right is what I use both to do most of my writing and where I weave bits of music together to make a final product (like this).

Here’s another, more atmospheric pic, with everything turned on:

Studio3

For the gear curious out there – on the left there’s a Korg M50 (bottom, with a Kaosilator on the far end) and a Roland Gaia (top), then in the middle there’s a Nord Rack 2X and Alesis Micron, which controls the Nord (bottom), and a Novation Bass Station II and Moog Minitaur with Behringer controller (top). Everything runs into the Zoom R16 mixer/recorder in between.

The words, by contrast, go straight from my brain to the PC, via the keyboard, although I occasionally knock out some words in other locales. Who knew you could write so much on your phone?

I suppose that’s the real lesson – where does the magic happen? Everywhere.

Should Sean McVay Pull a Wenger?

Unless you were in a coma last weekend you’ve probably heard about the end of the NFC Championship game, where the Rams wound up beating the Saints on a field goal in overtime. It only got that far, largely, because of a horrible blown call by the officials near the end of the game:

Had pass interference been called on the Rams, the Saints likely could have just run out the clock or, at worst, pushed their lead to six with an easy field goal and left the Rams with little time to score a needed touchdown. Instead, the Rams tied it up, then won.

Many people are pissed about this, for good reason. This isn’t a “bad call” in the usual sense, where there’s some grey area as to whether the refs made the right call or not. The penalty in this instance was clear and unambiguous. Is there anything to be done about it? As Michael McCann over at Sports Illustrated explains, probably not. The only NFL recourse is for the commissioner to step in under authority to deal with “emergencies” and “extraordinarily unfair acts.” However, that rule explicitly exempts refereeing decisions from its scope, so there’s little hope for any kind of do over or make up. Nor are there likely to be options outside the NFL (ludicrous lawsuits like this don’t help).

However, as McCann points out, there have been examples in other sports of do overs. Those are clearly covered by the rules. One important one he didn’t mention, however, comes from the “other” football, the one they play in the rest of the world and is a little more wide ranging.

It’s February 1999 during the fifth round of the FA Cup, England’s all-comer knockout soccer competition. Arsenal, defending champions of not just the Cup but the Premier League, are playing Sheffield United, then in the First Division (now Championship). Tied 1-1 late, Sheffield’s goalkeeper kicks the ball out of play so an injured player can get treatment. A show of sportsmanship, the proper response to which is for Arsenal to then throw the ball back to the keeper when play restarts. Arsenal’s Ray Parlour tries to do just that, but recent singing Nwankwo Kanu (just on as a sub, if I remember correctly) sprints onto the ball. He passes it to a surprised Marc Overmars, who puts it into the net past a really surprised Sheffield keeper. Arsenal wins 2-1.

What happened next is what’s really relevant now. As The Guardian said way back then:

A Frenchman taught the English an extraordinary lesson in sporting etiquette last night. Arsène Wenger, the Arsenal football manager, graciously offered to stage a rematch after his side won an FA Cup-tie on a controversial winning goal.

In an unprecedented move, the Football Association gratefully accepted Wenger’s offer to make Arsenal replay their fifth-round match with Sheffield United, scrubbing out the London club’s 2-1 victory yesterday in the interests of fairness.

* * *

After offering a replay, Wenger said: ‘The second goal is a controversial goal and we feel that it is not right. We have the feeling that we didn’t win the game like we want to win our games.’

So the two teams played again, with Arsenal winning (again) by a score of 2-1 (again).

Now, there are vast differences between the Arsenal situation and the Rams. For one thing, replays are baked into the FA Cup. Outside of the last couple rounds, if a game ends tied the two teams play again in a week or so. Had Arsenal not scored that controversial second goal, the fixture would have gone to replay, anyway. There’s no similar method in the NFL, which only has two weeks between the conference championship games and the Super Bowl. For another, goals in soccer are precious things in the way points in American football just aren’t, so a questionable goal is a bigger deal than a single blown call.

But, finally, the Rams didn’t break any unwritten rule of sportsmanship. They played the game and let the refs enforce the rules, which is how the game is supposed to work. Teams work the officials the entire game trying to gain advantageous calls. Bad calls – close ones or just blown ones – are part of the game in a way that the Arsenal goal isn’t supposed to be.

So, no, I don’t really expect Rams coach Sean McVay to say, “hey let’s do this again,” even just the last 1:49 that remained (as McCann explains, that would raise a lot of interesting procedural questions). But wouldn’t it be cool if he did? Wouldn’t it be cool if in a land torn apart by tribalism and “us versus them” one team said “we don’t want to win the wrong way?”

On the Heartbreak of Mediocrity

I think I’ve mentioned before that I have an anti-hype reflex. If I hear too effusive praise about a book or movie or album my natural skeptic comes out. Nothing can be that good. But we all have our blind spots and mine when it comes to hype is my alma mater’s football program. I tend to get a little irrational.

Every year before WVU sets foot on the field it seems like this year is going to be the big one. Sure, some teams get more hype than others, but they all get some of it. It helps that we usually have a schedule that’s weak up front, so we run up a few wins before we play anybody good. This year that was particularly true, with the hype machine going into overdrive with senior QB Will Grier starting the season as a legit Heisman candidate.

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And yet, it’s all still hype. Here we are at the end of the regular season with a good, but hardly great, 8-3 record and a realization that we beat all of one team with a winning record. The familiarity of all this made me dig into the numbers a bit and has led me to a sobering, but fairly obvious, conclusion – WVU is only a mediocre football program.

In 2011 WVU jumped to the Big XII from the remnants of the Big East conference, which subsequently rebirthed itself as the American Athletic Conference (“AAC”). So we’ve had seven seasons to see how WVU stacks up in one of the “power 5” conferences, where aspirations of national championships live. In those seasons (all with the same head coach, mind) we’ve gone 51-37 overall, 33-30 in conference. Not horrible, but not great either, particularly when you consider that seven of those non-conference wins were against FCS programs. Digging further, in that time we’ve only won one bowl game (out of five), and our record against teams ranked in the AP top 25 at the end of the season is just 4-19. Against the two big prestige programs in our conference, Texas and Oklahoma, we’re 4-10. All four of those wins came against Texas, by the way, who have been down for several seasons. In those seasons we’ve finished in third place in the conference twice (including this year), with other finishes between fifth and eighth place. Our average conference finish is 5.28.

This is the very definition of mediocre. We generally finish in the middle of a power 5 conference and rarely beat “big” programs. Oh sure, we get a few big wins here and there (hello Texas this season), but those are outliers. Or, as we call them in sports, upsets. They’re games where we play better than we really are, punch above our weight. It’s what mediocrities sometimes do.

That we’ve become a mediocrity is even clearer if you look at what WVU football was doing before the Big XII. In our last seven years in the Big East we were 70-20 (64-20 without the FBS teams), with a 37-12 conference record. We won the conference three times and never finished lower than third, for an average finish of 1.71. Along the way we produced a 10-7 record against top 25 teams and won five of seven bowl games – including beating Oklahoma in the 2008 Fiesta Bowl. That’s right, the Big East Mountaineers did something the Big XII ones have never done.

Now, the Big East by that point wasn’t the biggest of conferences (schools like Miami, Virginia Tech, and Syracuse had already left or were on the way out) and the AAC, which rose from its ashes, isn’t one of the Power 5 conferences for football, but maybe that’s the point? Some fans thought we were a big fish in a small pond in the Big East (and would be in the AAC), but it looks like a conference like that is about the right-sized pond for us. Would I love to see WVU win the Big XII and make it into the “playoff?” Sure, but how likely is that to ever happen? We had our best shot in years to make that kind of noise in 2018 and we couldn’t pull it off. Is it really better to struggle to finish mid-pack in a Power 5 conference than compete for a title regularly in a smaller conference? Given the geographical weirdness of us being in the Big XII, I’m not so sure.

All of which makes me think of the film Amadeus.

In spite of the movie’s title being his name, the center of Amadeus really isn’t Mozart. Rather, it’s his lesser contemporary (and rival, of some sort), Salieri, who has to toil in the genius’ shadow. At the end of the film, as Salieri is being wheeled to breakfast, he says to the priest who’s been interviewing him:

Goodbye, Father. I’ll speak for you. I speak for all mediocrities in the world. I am their champion. I am their patron saint.

Then, to the assembled loons:

Mediocrities everywhere, now and to come: I absolve you all! Amen! Amen! Amen!

I guess what I’m saying is that after all these years, we maybe need to reconcile ourselves to our fate as mediocrities. Maybe WVU should change its mascot to the Fightin’ Salieris!

Other Great Lawyer Movies

Several years ago, the American Bar Association Journal put together a list of the “best lawyer movies.” They’ve recently updated it, to their credit (there’s nothing quite so sad as an out of date “best of” list), and it’s full of great movies – Primal Fear, A Few Good Men, To Kill a Mockingbird, etc.. I come not to scorn that list, but to supplement it, with five of my favorite overlooked lawyer movies.

A word on what “lawyer movie” means (to me, at least). It’s a movie where a lawyer is a main, if not the main, character and where the practice of law is important to the plot. It doesn’t have to revolve around a courtroom (although that helps) and, taking a cue from the ABA’s inclusion of A Man for All Seasons, isn’t limited to American lawyers. So, with that said, off we go.

Breaker Morant (1980)

Breaker

Breaker Morant gets bonus points for not only being a great lawyer movie, but a great war movie, too. Set during the Boer War of 1899-1902, it’s the story of three Australian soldiers (although the titular Breaker is of English extraction) put on trial for murder of enemy prisoners and a German missionary. They’re attorney, another Australian, has only every handled land conveyancing before. It is, ironically, a real kangaroo court, with the soldiers being scarified more for the sake of international PR than justice.

That’s because, the movie asks, what is justice in a war where there are no rules? It’s from the Boers that we get the word “commando.” By the time the movie is set they’re fighting a rearguard irregular action that eschewed pitched battles, uniforms and the like. The by-the-book military law ways of dealing with prisoners didn’t really fit with that kind of war. But is the British Empire more interested in enforcing the rule of law or using the Australians as scapegoats? The irony is the murder of the German missionary, of which we knew they are completely guilty, is the one count on which they’re acquitted.

It also contains what might be my favorite last line in all of cinema:

 

 

A Soldier’s Story (1984)

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Another one that doubles as a great war movie as well as lawyer movie. Only this time the war is World War II and it’s nowhere near the events of the film itself. Based on a Pulitzer Prize winning play, it’s the story of an African-American army officer sent to a Mississippi base to investigate the death of an African-American drill sergeant.

Through the investigation we learn about the sergeant’s unit, a group of African-Americans desperate to do their part to defeat Hitler, but who have been reduced to a semi-barnstorming baseball team (they might get to play the Yankees). There’s an exploration of racism (the fact that the investigating officer is black is just too much for some folks) and abuse of power that spirals into a genuinely satisfying twist. Plus, there’s a hell of a cast, led by Harold Rollins and Adolph Caesar, but also including Robert Townsend, David Allen Grier, and a young Denzel Washington.

The People vs. Larry Flynt (1996)

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You don’t want to quit me, I’m your dream client: I’m the most fun, I’m rich, and I’m always in trouble.

Every lawyer has difficult clients, something that the movies aren’t always good at putting up on screen (to see a great portrayal of what it’s like to work with a fraud client watch Shattered Glass). Sadly, most of our difficult clients aren’t as fun or rich as Larry Flynt, though some of them are in trouble even more often than “always.”

The People . . . (directed by the late great Milos Foreman) is a bio-pick, but it spends a lot of time in court, culminating with the most realistic depiction of a Supreme Court argument I’ve ever seen on screen. It’s the culmination of Flynt’s fight against (the late and decidedly not great) Jerry Falwell, who sued Flynt and Hustler over a parody ad that implied Falwell had sex with his mother. For that alone, it makes the list.

The Sweet Hereafter (1997)

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Every other movie on my list (and many on the ABA list) has great courtroom scenes. The Sweet Hereafter never gets anywhere near a courtroom, yet it still provides one of the best portraits of what it means to be a lawyer I’ve ever seen.

Mitchell Stephens (played by Ian Holm) is a big city lawyer with a drug-addicted daughter trying to build a case in a small, isolated Canadian town. A school bus has crashed through the ice, killing many of the town’s children and leaving deep scars on just about everyone. Stephens trudges from home to home, trying to sign up plaintiffs for a suit against the bus manufacturer and the school district. Thus, Stephens is literally an ambulance chaser, yet it’s clear he does believe in the righteousness of what he’s doing. He’s not just chasing a payday (though there is that). The melancholy of it all, being absorbed by the traumas of others, comes through in every scene with him. No other movie I’ve seen gets that aspect of what it means to be a lawyer.

Naturally, it all falls apart at the end (thanks to a surviving child, played by Sarah Polley, who’s gone on to direct some great films), which makes it the rare lawyer movie where the lawyer loses. Again, that’s a hard truth for most lawyers (most of my fellow criminal defense lawyers, at least).

Intolerable Cruelty (2003)

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One of the reasons I like to talk about “favorites” instead of “best” is that movies (and all art) strikes different people in different ways and sometimes you love something even if it isn’t a critical darling. I don’t think anybody would call Intolerable Cruelty one of the Cohen Brothers’ best movies, but it is undoubtedly one of my favorites.

That’s largely down to the fact that for the first year of my legal life I was a divorce lawyer. Working for legal aid as the domestic violence specialist I split my time between working with abuse victims to get protective orders and getting them out of marriages. The people I was working with didn’t have enough property (and, thankfully, not many had kids) to fight about most time, much less enough to worry about something like the famous prenup that bears the name of Myles Massey (played with all his old-school movie star charm by George Clooney), but the beats and rhythms of what divorces cases are like are the same regardless of what’s involved. Maybe it’s millions of dollars; maybe it’s the commemorative Smurf glasses from Arby’s. I recognized that on the screen.

Plus, there’s an easy screwball feel to the whole thing (Catherine Zeta-Jones, as the woman who cooks up the scheme to bring Massey to heal, is great, too), with just enough bizarre touches (Massey’s wheezing senior partner, the Baron, etc.), that it’s just fun. Which is something you shouldn’t be able to say about a movie with a divorce lawyer as the main character!

Still Not Sold on VAR

The World Cup has come and gone (congrats Les Bleus!) and, along with it, the most high profile deployment to date of Video Assisted Refereeing or VAR. Regular readers know I’m not a huge fan of VAR (not quite the militant my wife has become, however), but if it’s here to stay it’s at least worth making it the best product it can be. So how did it do on its debut on the global stage?

If I’m being honest – not bad. It seemed to work fairly efficiently and corrected a good number of “wrong” calls. Not all of them, of course, which goes to one of my primary complaints with any form of review in sports – a promise of perfect that can never be realized. And it didn’t take that long. According to SoccerAmerica, 455 incidents were reviewed in 64 games, with only 20 resulting in game stoppages (of an average 80 seconds). And it managed to avoid my nightmare scenario – where team A is fouled while attacking in team B’s box but there’s no call, allowing team B to counter attack and the next stoppage is after team B scores. How does that all get sorted out? It will happen eventually. But, more often than not, the World Cup version of VAR was a good thing.

The other versions still need a lot of work.

Every week, for some reason, MLS puts together a “you be the ref” video with a controversial calls (or non-calls) involving a penalty kick, offside call, and red card.

Invariably they tend to show referees making bad decisions and, in some cases, VAR does very little to help. Witness a recent outburst by Real Salt Lake coach Mike Petke, which attracted support from others around the league (before all the tweets disappeared, for some reason).

A lot of this comes down to something that video review in all sports (that I’m aware of, at least) have imported from the world of my day job – standards of review.

When a court of appeals reviews a lower court decision, it doesn’t just hoover up the record and spit out an opinion. The court reviews discrete issues, each with its own rules for reviewing it. Generally speaking, if the issue is purely one of law – say, what a statute means – it’s reviewed de novo, with no deference to the lower court’s decision. On the flip side, a purely factual issue is reviewed for clear error – meaning it’s not just enough for the lower court to have been wrong, but it must be really really wrong for the higher court to do anything about it. Lots of issues fall in the middle and get reviewed for abuse of discretion, which is also pretty deferential to the lower court’s decision.

There are reasons for these in courts of law. Primarily, the thought goes that lower courts that actually sit and watch witnesses testify and such have a better chance of getting the facts right than higher courts working from a cold record. There’s some evidence that isn’t true, but it’s the accepted basis of the system right now.

VAR (and reply in American football) has adopted, basically, the clear error standard, in spite of the reasons for doing so not applying. If anything, the replay booth is in better shape than the ref watching the game live to make correct decisions. Why hamstring things so that only “really really wrong” decisions are corrected? During the World Cup commentators mentioned that the replay officials (or perhaps just the ref making the review – why do they get to judge their own work?) couldn’t even look at replays in slow motion. What’s the point of that? If we’re going to stop the game to get things right, let’s get things right!

That, largely, is what’s keeping me from more fully embracing VAR. On the one hand, it goes too far in messing with the flow of the game. On the other hand, it doesn’t go far enough, since it limits the value of the replays. The powers that be need to work that contradiction out, sooner rather than later.

Or, at the very least, MLS needs to adopt the system FIFA used for the World Cup. It’s eons better than what they do now. If we have to have VAR – and I fear we must – let’s at least make it the best it can be.