'Fisk' is the civil-practice lawyer you've been looking for

If you're looking to fill that Netflix queue as the writers' strike drags on, check out the Australian sitcom, Fisk.

When I put together a church message on ethics recently, I was looking to fill out a line about civil practice attorneys and coming up short. I wanted to make the point that when someone says "personal injury lawyer," we are quick to think of iconic unethical characters, and it's harder to conjure up the ethical ones. I didn't at first realize how much harder.

I ran the thought experiment on myself first. Even for me, a torts prof, it's hard, first, to filter out criminal lawyers. When I work the problem chronologically, the first character lawyer I remember adoring in my youth is Star Trek's Samuel T. Cogley (Elisha Cook), who defended Captain Kirk in a court-martial: criminal. The first civil selection that comes to mind is Boston Legal's Alan Shore (James Spader). But even he first appeared on The Practice, a criminal-law show.

Solidly on the civil side, unethical characters do come to mind quickly. For the message, I settled on My Cousin Vinny's Vinny Gambini (Joe Pesci), who was a civil-practice attorney out of his depth in a criminal-law storyline, and, to cross generations, Breaking Bad and Better Call Saul's Jimmy McGill/Saul Goodman (Bob Odenkirk). 

Then the ethical characters....  There are plenty in criminal, both prosecution and defense. Jack McCoy (Sam Waterston) is most often cited as admired when I survey 1L students. Ben Matlock (Andy Griffith) and Atticus Finch are classics.

Civil? Alas, so few people remember Alan Shore. I briefly considered Victor Sifuentes (Jimmy Smits). But on close inspection, nobody on L.A. Law holds up well as memorable and consistently ethically. There was Ally McBeal (Calista Flockhart), but she had a lot of balls (and dancing babies) in the air besides law practice. I interrogated the staff of The West Wing; none of the leads was a lawyer. I'm fond of Madam Secretary's Mike B. (Kevin Rahm), but he was as often as not a devil's advocate to test Elizabeth McCord's righteousness. Erin Brockvich? Real-life hero, but, to be technical, paralegal and consultant, not lawyer. Maybe Ralph Nader, though then it gets political.

John Calvin (1509-1564)
Public domain via Wikimedia Commons

For the church message, I settled on the real-life John Calvin, the 16th-century French theologian. He trained as a lawyer before he got caught up in the Reformation. It's a reach, I know.  But the bench is not deep, and Calvin was a stalwart for his faith.

So I come back around to Fisk, the title character of which is lawyer Helen Tudor-Fisk, created and played by comedian Kitty Flanagan. Tudor-Fisk was a high-powered corporate lawyer in Sydney until a bitter divorce and a workplace meltdown prompted her to upend her career and move to Melbourne. There she struggled to find a bed and a job, landing as a temporary fill-in for a suspended trusts-and-estates lawyer at a scrappy two-partner shop.

Fisk is not about law or legal ethics. The show, and its comedy, derive from Flanagan's delightfully dry-witted character as she navigates the ups and downs of her shattered life. The law practice is setting and background. But then—I don't think it's a big spoiler to say—her quiet diligence in her new job suddenly and gratifyingly comes to the fore in the finale of the six-episode season 1.

When I finished Fisk s1 last week, my own biases were laid bare. I had tried to think of what an ethical civil-practice attorney looks like. I pictured a renowned, tough-as-nails civil litigator, a silver-haired Matlock analog, dazzling jurors in the courtroom in "ripped from the headlines" cases.

Forget all that. Helen is the real deal.

I fell for Fisk.

Season 1 of Fisk is streaming now on Netflix. Season 2 ran on Australian Broadcasting last year; to my knowledge, it has not yet been licensed to stream in America.

UPDATE Oct. 22, 2023: Fisk s2 is now available to purchase in America from services including Amazon Prime.

Wide-ranging social commentary in Peele's 'Wendell & Wild' pillories privatization, school-to-prison pipeline

Released by Netflix in October 2022, Wendell & Wild is a delightful stop-motion horror animation and none-too-subtle commentary on the school-to-prison pipeline.

Jordan Peele and Henry Selick co-produced and co-authored Wendell & Wild, which is based on an unpublished book by Selick and Clay McLeod Chapman. Comedic genius Peele was fresh off Nope (2022), which I thought was much better than the confused Get Out (2017), though the newer film won zero Academy nods to the earlier's screenplay win and three noms in 2018. Selick is a Hollywood legend, but doesn't perennially produce new work for our pleasure. He co-masterminded The Nightmare Before Christmas (1993) and James and the Giant Peach (1996) in the animation vein, and he did the visual effects for a favorite film of mine, the quirky and underrated Life Aquatic with Steve Zissou (2004).

Wendell & Wild follows teenager Kat (Lyric Ross, Déjà on This Is Us) as she battles demonic forces, including an eponymous demon pair (voiced by Peele and comedy partner Keegan-Michael Key), intent on evil works, including construction of a prison, in the down-on-its-luck earthly town of Rust Bank. Critics harshed on the film for jamming too much social commentary into one vehicle, and, admittedly, Wendell & Wild fires head-spinningly at innumerable targets.

To me, that's the fun of it. Race, education, employment, the institutional church, and the criminal justice system only outline the low-hanging fruit. Through subtleties such as plot device, semantics, and imagery, the film digs deep into nuances, even the socioeconomic layers of natural hair.

Whatever your pet peeve of social dysfunction, you can find it in Wendell & Wild, which is why I first saw the film as a commentary on transparency and accountability in urban development. The demons and their mortal allies are in the privatization-of-state-services game. They plan to build a prison that will do nothing in the way of rehabilitation alongside schools that will do little in the way of education, as building each institution to serve its purpose would be bad business for the other.

What I was inclined to see as a problem in freedom-of-information law, informed as I was by a former student's recent publication on private-prison abuse in Arizona for The Journal of Civil Information, to be fair, is just one angle on the broader problem of the school-to-prison pipeline. In this vein, I shared a scene from Wendell & Wild with my law students.

It happened that Jose Vazquez, communications director for the ACLU of Alabama, keyed in on the same scene and posted it to Twitter (embed below). In the scene, mean-girl ringleader Siobhan (Tamara Smart) starts to put together the evil plot of her parents, urban development power couple Lane and Irmgard Klaxon (David Harewood and Maxine Peake), owners and directors of Klax Corp. How sweet is that multiplicitous naming?

This clip is a spoiler but I really hope it can be used in classrooms and just generally shared because we all need to learn how prisons ruins people's lives, families, and entire towns! We can all imagine better futures and this film does a great job illustrating that. pic.twitter.com/Y2TS31lkAd

— jose bouquet (@josebouquets) October 29, 2022

Wendell & Wild is worth the watch. As Vazquez wrote of the above clip on Twitter, "I really hope it can be used in classrooms."

Qatar World Cup opens Sunday; meanwhile, Netflix series stokes embers of FIFA corruption scandal

I visited CONMEBOL HQ in Asunción, Paraguay, in October.
The South American angle on the FIFA corruption scandal
was engagingly fictionalized in El Presidente in 2020.
(Photo by RJ Peltz-Steele CC BY-NC-SA 4.0.)

The sport world is abuzz over the Netflix documentary series, FIFA Uncovered, dropped November 9, just weeks before the FIFA World Cup opener in Qatar.

Many in Qatar are crying foul by filmmaker Miles Coleman for dredging up the ugliness of the FIFA corruption scandal, the focus of this docuseries, right now. But in an interview with renowned MENA scholar James Dorsey, Coleman, who created This Is Football for Amazon Prime in 2019, said he had no motive other than historical documentation. The timing of the release, Coleman said, is to bring football fans up to speed on the facts, so they can have informed conversations around the Qatar World Cup.

FIFA was rocked by scandal in 2015 when investigators led by the U.S. Department of Justice (DOJ) arrested top officials in Zurich and issued an avalanche of indictments. It was revealed then that corruption practically poisoned every part of world football governance, especially the bidding process for the world's top sporting event and its 2010 award to Russia for 2018 and Qatar for 2022.

Qatar narrowly edged out a bid from the United States in 2010, and disgraced FIFA President Sepp Blatter and his allies accused the United States of spite. Purportedly relieved of corrupt process, FIFA in 2018 awarded the 2026 World Cup to the joint bid of the United States, Canada, and Mexico.

When issues remain controverted, the docuseries presents all voices, Coleman told Dorsey. Indeed, the interviews are what makes the series worthwhile. Most of the story has been told already and well; I read and reviewed a number of books on the subject in the first pandemic summer. The docuseries, though, includes interviews with just about every key player, including Blatter himself, as well as Qatar bid chief H.E. Hassan Al Thawadi; "Qatar whistleblower" Phaedra Al-Majid, featured recently on Norwegian television; and Mary Lynn Blanks, romantic partner of corrupted American football official Chuck Blazer, who died in 2017.

Among the revelations, or at least confirmed suspicions, arising from the docuseries interviews is the fact, borne out by evidence besides his own testimony, that Blatter favored the United States rather than Qatar to host the 2022 World Cup. For all Blatter's failings, he was outmaneuvered by the colossal corruption machine that he helped to create. African Football Confederation President Issa Hayatou, a rival of Blatter's within FIFA, was key to securing the Qatari win. Hayatou was joined in his efforts by Jack Warner, president of the North, Central America and Caribbean Association, whose defection infuriated Blazer.

On Wednesday next week, November 23, at Jagiellonian University in Kraków, Poland, I will lead a discussion, "Law, Development, and the World Cup."  The program, in English, begins at 3 p.m. local time at Pałac Larischa 203, Bracka 12.

The World Cup opens Sunday night in Doha, Nov. 20, at 1100 US EST/1600 GMT, when Qatar hosts Ecuador in Group A. The United States MNT plays its Group B opener against Wales on Monday, Nov. 21, at 1400 US EST/1900 GMT. Poland plays its Group C opener against Mexico on Tuesday, Nov. 22, at 1100 US EST/1600 GMT/1700 CET.

Hat tip to Alessandro Balbo Forero, an alum of my Comparative Law class who wrote his final paper on football and Brexit, for alerting me to the drop of FIFA Uncovered. He's an Arsenal supporter, but nobody's perfect.

Here is the trailer for FIFA Uncovered:

And here is the Dorsey interview of Coleman:

With Keaton as Ken Feinberg for 9/11 20th, 'Worth' challenges tort norms with study of victim comp

Worth, a dramatization of Kenneth Feinberg's special mastership of the September 11 Victim Compensation Fund, dropped on Netflix today in select markets.

I frame my 1L Torts class with exploration of tort alternatives, and I periodically infuse our study with comparative law.  Typically, I begin Torts I in August with a study of the New Zealand accident compensation system.

I ask the class whether Americans might similarly embrace social compensation.  Notwithstanding their personal predilections, students readily identify objections based in deterrence dynamics, the American ethos of personal responsibility, and our cultural priority of "day in court" entitlement.

In the spring semester, I round out Torts II with a return to tort alternatives in America's exceptions to the rule, easing our study from worker compensation to compensation funds, such as 9/11 and BP.  Students are then challenged to consider: if Americans find the notion of New Zealand-style social compensation system so repellent, why do we embrace it when the stakes are especially high?

For two years now, I have used the German-made Playing God (2017), a documentary about Brockton, Mass.-native Feinberg, as a springboard for class discussion of the necessary parameters of social compensation systems, including valuations.  Previously, I used recorded lectures by Feinberg.  A good, recent, and more-concise-than-usual item is his talk at Chicago Ideas Week on the theme of his 2005 book, What is Life Worth?—the original title of the movie, Worth, according to IMDb.

Even if a torts professor does not wish to cover alternative compensation systems, these are useful audiovisual catalysts for discussion of the valuation of life and loss, as part of the study of damages.  Other worthy tools, in the podcast vein, include "Worth" on Radiolab (2014) and Feinberg's appearance on Freakonomics Radio (2018).

Starring Michael Keaton as Feinberg, Worth is necessarily a Hollywood conflation of events and issues, focusing on 9/11 upon its upcoming 20th anniversary.  Still, plenty of effort is exerted to remain faithful to history.  Feinberg is pictured enduring the heat of an angry and frustrated assembly of families, after which he has informative if discordant exchanges with individuals.  There are also discrete scenes of victim testimonies that might seem interruptive of flow in an ordinary drama, but can't help but captivate in the haunting context of 9/11.

These interactions and the orbiting characters who emerge in the story are clearly modeled on, or amalgams of, real events and persons, many of whom were recorded in videos from the time, and clips of which can be seen in Playing God.  Exemplifying his skills as a character actor, refined in landmark roles from Beetlejuice to Birdman to Ray Kroc, Keaton offers a compelling portrayal of Feinberg as the peculiar human protagonist whose likeness has become inextricable from American mass compensation systems, for better and for worse.

Worth is a superb ride and offers endless starting points for serious academic discourse on the subject of compensation models, not to mention the role of the legal profession and the complex sociology of death.  The film is a welcome addition to the audiovisual arsenal for classroom teaching to stimulate deep thinking on the wisdom of tort law.

Netflix's 'The Chair' satirizes academic politics with troubling truths of contemporary campus culture

Netflix's The Chair is an enjoyable six-episode sit com on the absurdity of academic politics in American higher education today.  The show was created and written by Amanda Peet and stars Sandra Oh (Grey's Anatomy, Killing Eve) as the perpetually embattled chair of the English department at a small elite college.

In one storyline, reminiscent of Scott Johnston's Campusland (2019), well meaning professor Bill Dobson (Jay Duplass) is pilloried for a mock Nazi salute, turned into a social media meme, in a class lesson on fascism and absurdism.

Comedic parody derives its beauty, of course, from its grain of truth.  Dobson's predicament is precisely one reason I have resisted routine video lecture capture.  Humor has pedagogical value, but one remark out of context is a brewing tempest in a teapot.  The risk might be worthwhile if teachers could have confidence in academic freedom.  But they can't and don't.

As depicted in the show, university administrators obsessed with appearances and virtue signaling to the near exclusion of educational mission and pedagogical merit relish any opportunity to sacrifice an iconoclastic academic to the maw of groupthink.  No shackles of investigation or professional integrity can be permitted to slow the rush to condemnation.

Jay Duplass (Peabody Awards photo CC BY 2.0) 

Fictional Professor Dobson defends himself to the dean: "I’m tenured.  You can’t constrain my actions in my own classroom or my speech on this campus unless I’m in violation of the faculty code of conduct.  Which I’m not."

But there's the rub: arguably, he is.  An administrator at my university has enforced against faculty the university system's "Principles of Employee Conduct." The vague principles require faculty to "accord respect" to all persons and "to accept full responsibility for their actions."

If those terms were read in accordance with others—"foster forthright expression of opinion and tolerance for the views of others"—then no problem.  But if administrators are willing to read dissent, whistle-blowing, and classroom provocation as disrespect, which they are, faculty have no real recourse.  As I wrote more than a decade ago, and others periodically observe, tenure protection grounded in procedural due process is an empty promise in practice, and courts routinely abstain from recognition of any substantive academic freedom.

Faced with dismissal proceedings, Dobson reluctantly resorts to a lawyer in the final episode of the first season.  No spoilers.

The Chair is enjoyable mostly for the comedy.  But it delivers as well periodic gems of thought-provoking truth, besides the sad state of academic freedom: the need for critical reexamination of historical subject matter and diversification of faculty perspectives, without sacrificing academic integrity; the fate of classical studies in the age of impatience; university budget cuts to unremunerative liberal arts; the personal and professional challenges of growing old amid fast-paced social evolution; and what can or should be done today to remedy past social and economic injustices of race and gender.

When the father of our protagonist Ji-Yoon Kim criticizes her work-life imbalance, an aggravated Kim retorts, "What promotion means you don't have to work as much?!"

A story for our times.

Also among the outstanding cast are Nana Mensah (Queen of Glory, King of Staten Island) and the ageless Holland Taylor.  Sophie Gilbert at The Atlantic liked it too.  HT @ Prof. Irene Scharf.

Netflix's 'Enola Holmes' tangles with family copyright

Brown (image by Gage Skidmore 2017 CC BY-SA 2.0)

I quite enjoyed the film Enola Holmes, released on Netflix in 2020, a welcome respite from #QuarantineLife.  Stranger Things sensation Millie Bobby Brown was delightful as the lesser known teen sister of the super-sleuth Sherlock, played with rich arrogance by Henry Cavill.  I did not know then that the movie was based on a YA book series, by fantasy writer Nancy Springer, dating to 2006. 

The Arthur Conan Doyle estate seemed content to let Springer go about the quiet business of spin-off fan fiction, but got its hackles up when Netflix got into the game.  The copyright picture behind Sherlock Holmes is complicated: one might say, a puzzle to be solved.  Some of the works have fallen into the public domain and some have not, and the matter is further complicated by a U.S. copyright regime that protects copyright a full generation longer than British law.

The Doyle estate sued Springer and Netflix in federal court in New Mexico in June for copyright and trademark infringement.  The estate's U.S. licensing representative lives in Santa Fe, an attorney explained to the Las Cruces Sun News.  The case, Conan Doyle Estate Ltd. v. Springer (D.N.M.), was dismissed in December upon stipulation, suggesting the parties reached a settlement.

Claims of copyright in fictional characters are always dicey, because they press the limits of the doctrinal dichotomy in copyright law that only fixed representations, and not ideas, may be protected by copyright.  A character has one foot fixed in a tangible medium of expression, as the law requires, and, at the same time, has one foot in the wind of idea.  In the instant case, the plaintiff advanced one remarkable theory to bolster its position.

The plaintiff suggested that Arthur Conan Doyle in fact authored two distinct versions of the Sherlock Holmes character, and that the fictional Holmes universe created by Springer and Netflix employed specifically the latter incarnation—which, suitably for the plaintiff's case, remains copyrighted.  The complaint explained that before WWI, Holmes was famously "aloof and unemotional," quoting Watson from "The Adventure of the Greek Interpreter" on Holmes's "deficien[cy] in human sympathy," "aversion to women," and "disinclination to form new friendships."  Then:

All of this changed. After the stories that are now in the public domain, and before the Copyrighted Stories, the Great War happened. In World War I Conan Doyle lost his eldest son, Arthur Alleyne Kingsley. Four months later he lost his brother, Brigadier-general Innes Doyle. When Conan Doyle came back to Holmes in the Copyrighted Stories between 1923 and 1927, it was no longer enough that the Holmes character was the most brilliant rational and analytical mind. Holmes needed to be human. The character needed to develop human connection and empathy.

Conan Doyle made the surprising artistic decision to have his most famous character—known around the world as a brain without a heart—develop into a character with a heart. Holmes became warmer. He became capable of friendship. He could express emotion. He began to respect women.

Thus, the complaint posits, Enola Holmes, the story of Sherlock's sister, a figure long marginalized but now primed for redemption, is derivative specifically of post-WWI Sherlock Holmes—©.

Despite the dismissal, you still can enjoy untangling the skein of intellectual property claims in Conan Doyle Estate v. Springer with Alice Chaplin, writing on February 4 for A&L Goodbody's Ireland IP and Technology Law Blog.  Then solve a mystery with Enola Holmes on Netflix.

Multi-ethnic kid crew fights bloodsucking gentrification

Are you in need of a Stranger Things fix? Season 4 resumed filming a couple of weeks ago.

In the meantime, Netflix's Vampires vs. the Bronx offers delightful diversion.

There have been black vampires and black horror films, but not so much vampire films with human protagonists of color.  Or many colors.  Enter Vampires vs. the Bronx, a welcome addition in the open vein of comedy-horror.

In Vampires, a quartet of talented youthful stars (Jaden Michael, Gerald Jones III, Gregory Diaz IV, and Coco Jones) are residents of a Bronx neighborhood resisting a clandestine vampire invasion.  The characters casually comprise kids of African-American, Haitian, Puerto Rican, and Dominican descent.  Their cultures are not conflated as we get glimpses of their home lives.

The film collects stars and boasts a few subtle send-ups to classic comedy and horror.  An opening cameo by Zoe Saldana is especially apt, as her heritage includes all of Dominican, Haitian, and Puerto Rican roots.  Cliff "Method Man" Smith plays the local priest, who doles out the Eucharist with a steely glare to his troublesome young congregants.  Bronx-native, Dominican-American comedian, Joel "The Kid Mero" Martinez drives the narrative as beloved bodega owner-operator Tony.   

Saturday Night Live actor-comedian Chris Redd and another Bronx-native, Dominican-American comedian, Vladimir Caamaño, get a few of the film's top comic lines as observers of the action in the tradition of Statler and Waldorf, or Jay and Silent Bob. Director Oz Rodriguez also directs Saturday Night Live and is a native of the Dominican Republic.

Vampires vs. The Bronx is built not so subtly on a storyline of urban gentrification.  The Scandinavian-blonde vampire brood seeks to seize local businesses and convert the likes of Tony's bodega to high-end retail and craft coffee.  The vampires are aided by their human familiar, Frank Polidori (Shea Wigham), who brings Italian-mob-style tough tactics to persuade property owners to sell.  Acquiring a building has the spooky side effect of allowing the vampires to enter without asking permission.  

The theme carries through as vampire leader Vivian (Sarah Gadon) stops by the bodega to peruse Tony's growing inventory of new-age super-foods and settles on a purchase of hummus.  If you can't have a sense of humor about cultural stereotypes, this isn't the film for you.

At the same time, don't expect pedantic messaging on race and gentrification to run too deep.  PG-13 Vampires vs. The Bronx means mainly to make fun.  At that, it succeeds.

Here is the trailer.

Texas indictment surfaces problem of elected prosecutors; First Amendment protects Netflix film

Actor, model, and District Attorney Lucas Babin
(Steve Stewart CC BY 4.0)

A Tyler County, Texas, grand jury has indicted Netflix for lewd depiction of TV girls in the French film, Cuties (2020).  Sadly, the indictment says more about Texas and American criminal justice dysfunction than about Netflix or contemporary media.  

The film plainly is protected by the First Amendment, rendering the indictment more political stunt than serious legal maneuver.  I wasn't going to watch Cuties, but now I feel like I should, so score one for Netflix, nil for District Attorney Lucas Babin.  Or, I should acknowledge, this might be good campaign fodder for an elected D.A. in East Texas, so it's win-win, minus transaction costs.  

Using the criminal justice system as a means to political ends is a deeply disturbing phenomenon; John Oliver featured the issue in 2018 commentary on Last Week.

Besides being an attorney, Babin is himself, or was, an actor and a model.  His father is dentist and U.S. Rep. Brian Babin (R-Tex.).

The September 23 indictment (image from Reason) relies on Texas Penal Code § 43.262, Possession or Promotion of Lewd Visual Material Depicting Child.  The statute reads:

(b) A person commits an offense if the person knowingly possesses, accesses with intent to view, or promotes visual material that:

     (1) depicts the lewd exhibition of the genitals or pubic area of an unclothed, partially clothed, or clothed child who is younger than 18 years of age at the time the visual material was created;

     (2) appeals to the prurient interest in sex;  and

     (3) has no serious literary, artistic, political, or scientific value.

The latter conjunctive element (3), lacking in serious value, is a typical savings provision meant to bring the law into conformity with the First Amendment, which certainly protects the film.

Promotional image of Cuties French release

Cuties, or Mignonnes in the French original, is a 96-minute drama about a Senegalese-French girl coming of age in contemporary Paris.  She struggles to reconcile her conservative Muslim upbringing with the popular culture of her schoolyard peers in the social-media era.

A Sundance 2020 award winner in dramatic world cinema, the film was written and directed by Parisian born Maïmouna Doucouré, herself of Senegalese heritage.  In a September 15 op-ed in The Washington Post (now behind pay wall), Doucouré wrote:

This film is my own story. All my life, I have juggled two cultures: Senegalese and French. As a result, people often ask me about the oppression of women in more traditional societies. And I always ask: But isn't the objectification of women's bodies in Western Europe and the United States another kind of oppression? When girls feel so judged at such a young age, how much freedom will they ever truly have in life?

The sexualization of the girls in the film is already familiar in the life experience of an 11- or 12-year-old, Doucouré further wrote. Still, a counselor was on set, and French child protection authorities signed off on the film.

Some of the flap over Cuties, and probably precipitating the Texas indictment, was Netflix's initial promotion of the film with an image of the child stars in sexually suggestive outfits and pose (see Bustle).  Netflix apologized publicly and to Doucouré and withdrew the portrayal.

Here is the trailer for Cuties.

The case is State v. Netflix, Inc., No. 13,731 (filed Tex. Dist. Ct. Tyler County Sept. 23, 2020).