I like to win stuff

And if you like to win stuff too (especially cool old school games) then this is for you. It's a NES prize pack. I know that everyone wants the new and best systems (Wii U) but for me the old school games have bigger replay value. I only use my Wii anymore to play games like Dr. Mario ported from the older systems.

Some People Are More Equal Than Others

Today David Brooks said something dumb. The link there goes to Charlie Pierce's takedown of the article because you don't want to read the actual article. It's pretty much the normal Brooksian ravings about how the rich deserve our gratitude because they are our betters. But it is interesting only because it pretty much captures the way that these people really think.

Why Ladies Love 50 Shades

I am uniquely qualified to talk about 50 Shades of Grey, the best-selling book series based off a Twilight Fanfiction where light BDSM replaces the vampire stuff. Before law school I worked about about a year supplementing my income by writing porn. Erotic stories. Ghost blogging for porn stars.

This work also meant a lot of reading different stories (sometimes I was paid to re-write them, or to add additional scenes to a book). I didn't always do well at this because I can't write passive female characters. In some ways this made writing gay porn easier than the straight stuff because it eliminated the weird baggage people bring to female sexuality.

In female erotica, and 50 Shades, the protagonists are almost always inexperienced virgins. The scene where they lose their virginity is always identical. The guy makes them come with hands or mouth, then penetration happens. There is pain and bleeding, but only for a moment (in that moment the guy will always suggest that he will stop because he is such a nice guy) and then she'll magically get into it and come at the same time as him. It is ALWAYS THE SAME. It is a ritual that happens again and again. So often that the books that don't have it almost seem subversive. Stories with non-virgins in the starring roles, or virgins who don't have their maidenhead, are the minority.

It's all part of the culture that festishizes female virginity as well as denouncing female sexuality. Young teens are shown media figures (Miley, Britney, Lindsay) who are shown in sexually provocative poses and outfits but are also haled as role models because they are virgins. Even if it isn't actually true, the young women can still claim virginity. When they get older, however, the claim no longer can be believed and suddenly they are unlikeable sluts. Does Miley really dress or act differently than she did when she was on Hannah Montana? No, but now the behavior is bad. It was okay when she was doing it because people told her to. It's bad when she starts doing it because she wants it.

Women aren't supposed to WANT sex. And Anastasia in 50 Shades spends pages and pages of the book feeling bad about the fact that she likes kinky (well, the vanilla version of kinky) sex. She talks about her conflicted feelings about sex and ultimately gives in over and over again to the pleasure. Of course, if Ana just openly enjoyed it (or was the one who tried to introduce her male lover to her kink) it would turn off many female readers. Books featuring sexually aware protagonists don't resonate with female readers. Read some of the reviews on Amazon and they focus on not liking the sluts.  Women live in a society that tells them that they must walk a balance between being sexually available to men (or risk being labeled frigid or ugly) while also needing to be the moral gatekeepers of sex. Ana walks this balance by spending most of the book talking about the conflict. Seriously. There is more navel gazing in the series than sex.

50 Shades also has one other feature that makes it so popular. The series starts out with Ana being given a no strings attached sexual contract with Christian. But by the second book he loves her. He marries her. She has made him change. How did she do that? TRUE LOVE, I guess. And it is that old idea that a woman can change a man if she just loves him enough. Meet a guy with a huge kink and fucked up issues. Well, if you just stand by him he can change.

But the change is needed for the happy ending. If Ana and Christian didn't live happily ever after then it would be a dark book indeed. Ana would have given up her virginity and her precious sexual innocence for nothing. She'd be left with sex and pleasure, but no husband which would be a terrible fate indeed.

And that's why 50 Shades has been so popular. It is able to tell a story of sexually excitement and introduce a taboo level of kink, but it still fits into the cultural story of how terrible female sexuality is. As for the kink...ugh. It isn't. Handcuffs and ropes and some spanking. Boring. In a world where one of the fastest growing male fantasies is pegging a little light S&M is nothing.

If you couldn't tell I hated 50 Shades. I hated Ana and her constant talking about how conflicted she was about enjoying sex. I hated the fact that we were supposed to believe these two people had true love when they didn't even have very interesting conversations. I hated that the first wildly popular book series in my generation to deal with sex completely reinforces our cultural view of the virgin/whore complex. I wish that 50 Shades was Fear of Flying. I wish that our culture was less repressive than we were in the 1970s.

What Would Washington Tweet?

One of my pet peeves is seeing how the legal system often times misunderstands technology. So, I think I should give a thumbs up to this decision involving a request for information about tweets from the Occupy Wall Street Protest.

The NYPD has requested Twitter to turn over user information and records of tweets made by
@destructuremal (real name: Malcolm Harris). After a court ruled that Harris could not quash the subpoena because he didn't have standing the microblogging site took up the cause.

Twitter's first argument was that the user should have the right to challenge the subpoena instead of Twitter having to do it. As a practical matter Twitter doesn't want to get involved with these things. If the court found that tweeters had standing to challenge subpoenas it would make life easier for Twitter. If someone was challenging one they would sit back and wait for the court decision. If a user decided not to challenge it then Twitter could hand over the records without looking like they aren't fighting for their users. By making Twitter the person who has to be in court it places the company is a terrible bind. Do they do the easy thing and hand over the data or do they try and argue for protection of this data?

While the court understands this problem, they don't buy it as an argument to create standing. They also don't care much for Twitter's argument that the user has an expectation to privacy in the information they share with them. "There can be no reasonable expectation of privacy in a tweet sent around the world," the court said, distinguishing it from an email, direct chat, or IM. Even though this is new technology, it isn't a new problem. The court compares this case to one where a person yells something at someone else on a street and is overheard by other people. Of course the people overhearing the conversation can testify to it. The fact that it was tweeted instead of yelled doesn't change anything.

So, Twitter has to turn over the tweets. I've already heard some people upset about this from a privacy aspect, but it isn't really an issue. The police could get these tweets either from the account or from one of the many sites that allow you to search deleted tweets. The reason they need it from twitter is so that they can get it into evidence. A printout of a tweet without verification from twitter connecting it to that particular user account (as opposed to something photoshopped) won't be able to make it into evidence. The information was already out there. This just makes is admissible in court.

The final interesting bit from the opinion is this musing on what the founders would think of Twitter.

While the U.S. Constitution clearly did not take into consideration any tweets by our founding fathers, it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today’s twitter user names).

Can you just imagine the tweet fight @TheRealBurr would have with @AHam?

Love and the Apocolypse

Seeking a Friend for the End of the World is not the movie it appears from the trailers. It's not a comedy, even though it has some very funny parts. In tone it reminded me of The Invention of Lying, another film that started with a very funny first act based on a high concept and then became a serious philosophical examination in the third act. Lying was a movie that was actually about religion, and even though it was written by an atheist it actually made a good argument that faith in a higher power gave people happiness even if it isn't true. Seeking a Friend is a movie about love, but even more about being alone.

Dying alone is the ultimate fear for most people. Being alone in life is annoying, but the taunt isn't "you're going to spend the weekend alone" it's "you're going to die alone." That when the show is over you will be by yourself with nobody left to mourn and nobody to remember you were ever here. Seeking a Friend gives that fear of dying alone a timetable. The world is ending in 21 days. There is no hope. There is no Bruce Willis to save the day (the movie starts after the action movie heroes who were going to save Earth end up failing- the implication being that as long as that chance of a rescue still existed that people were not ready to deal with the true finality of death). You are going to die, and unless you get into gear, it is going to be alone.

Steve Carell plays Dodge, a guy who has played it safe his entire life. The film starts with his wife leaving him (well, running screaming from him when she hears that the rescue mission has failed on the radio). He wants to love someone and be loved, but he also doesn't really want to put the effort into actually falling in love when they're going to die anyway. He isn't very upset about his wife leaving. He admits he married her because he was afraid of dying alone. He is torn between wanting to have someone to share these last days with and recognizing that the entire thing in pointless.

From there he meets Penny (Kira Knightly doing a good job of being more than just a manic pixie dream girl) and goes in search of his high school sweetheart and reconnects with his past. Look, it's a movie that is pretty good. You should see it. You'll cry for the last 15 minutes of the thing. And then on the drive home.

What I loved about it is Dodge's central dilemma- love takes a lot of time and effort. Is it worth it to go through all that crap when it's going to end anyway?  It is an interesting question because it's true even when the world isn't ending. The best possible ending for your love affair is that you both die at the same time. Every other option involves one person leaving the other (either breaking up or dying). When Romeo and Juliet is your happy ending then it shows how fucked up the entire world it. Why even worry about romance when the end is predetermined to be bad?

The reason is because love is great. Being loved is nice, but the greatest joy is in loving someone else. It's going to end. It will probably end badly. The flower is going to die, that doesn't mean it isn't lovely to look at right now.

There's another message in the film. Dodge and Penny have a great love story, but they aren't some perfect couple. If the world didn't end they'd probably just grow apart because they are so different. But they can be the loves of each others lives right now, because they both have decided to just love unconditionally. In this world where internet dating has made finding a mate similar to shopping for shoes. I've been known to read a profile and be thinking the guy is interesting but... The DaVinci Code is your favorite book? Pass.

We all have this idea that if we look long enough and far enough we can find the person who has all the traits we want and who wants all the traits we have. That's a crapshoot. We could also just learn to love people as they are (even if they have terrible taste in books) and be happy with that. Loving someone is as much about our willingness to open our hearts to their flaws as it is about them meeting some checklist of worthiness.

Although, it is much easier to do that when you know that you only have 3 weeks left. It's hard for me to give up on finding a guy who loves old movies and Kurt Vonnegut novels when the end seems so far away. Even though part of me knows that I might be passing on wonderful people in the process.

Roger Ebert's Brave Review Gives Me a Sad

I love Roger Ebert.

The guy is not just one of the best movie reviewers in modern history, he'd just a hella great guy. Love his books. His interviews. His blog posts. I love the guy.

Which is why his review of the new Pixar movie Brave is extra head desky in the final paragraph.

But Merida is far from being a typical fairy-tale princess. Having flatly rejected the three suitors proposed by her family, she is apparently prepared to go through life quite happily without a husband, and we can imagine her in later years, a weathered and indomitable Amazon queen, sort of a Boudica for the Scots. "Brave" seems at a loss to deal with her as a girl and makes her a sort of honorary boy.

To which I say... huh?

Let me break down the logic here, LSAT style. Merida rejects her suitors. She seems to be happy without a husband. Therefore- Brave is not dealing with her femaleness.

See, that can't be right. Because for that to be true he would be saying that femaleness is defined by wanting a husband. That's just silly. There are plenty of women who don't want a husband who don't give up their gender in doing so. There are also lots of men who do want a husband who don't suddenly become women when they acquire this desire. I'm not saying that a woman needs a husband like a fish needs a bicycle. The early feminist ideas of defining modern womanhood as a rejection of marriage is just as limiting as a world where womanhood is defined by wanting marriage. A woman can want to get married or not want to get married without it needing to take on some symbolic meaning about her relationship to her gender.

I really am hoping that the Brave review is just some type of editing error. That there is a whole other paragraph that got cut out of it that clarifies how the fact that a pre-teen character doesn't want to get married is related to the movie making her male. I commented on the related facebook post to the review and there is some good discussion going on about it. For the moment I'm going to give Ebert the benefit of the doubt and hope that there is a clarification coming soon.

Because, I am curious about how Pixar is going to deal with its first female lead character. Pixar has a troubling relationship with women in their previous films. Toy Story was a great movie, but it was a film about male friendships. Toy Story 2 got better with Jessie, but the audio commentary for the film has the writers admitting that the original script featured Jessie as being little more than a damsel in distress until Joan Cusack suggested letting her save the day. They hadn't even considered that option when they were writing. I don't think it is that they were sexists, but they were more invested in Buzz and Woody. They hadn't even considered that Jessie could be the hero.

Monster's Inc. is another film that does great with male friendship but places women either as girlfriend, crone, or semi-silent pet. Look. I LOVE Boo. I sometimes just scream "Mike Wazowski" imitating her little voice. But it isn't like a little girl could watch Monster's Inc. and say "yes, I want to be like her." While Sully or Mike have traits to be admired, what did the women really do.

The original opening scene of The Incredibles  featured Mrs. Incredible getting into a fight with her new neighbors at a picnic when one of them was dismissive of the fact she was a stay at home Mom. The scene was later cut and the film moved to focus more on the mid-life crisis of Mr. Incredible than on the work/life balance issues of the Mrs. Which makes sense in a narrative sense even though I wish I could have seen the film with a bigger focus on the women. This is just more of Pixar's problematic relationship with women. It isn't that I think the studio is sexist or that they hate women. It's just that they tend to place the focus of the story on men. Maybe it's because that's what most modern films do and you just pick it up as a storytelling device. But it doesn't make it any less upsetting.

Their best treatment of female characters are often when they are barely seen. The opening scene in Up that followed a fearless little girl as she went on an adventure, fell in love, got married, lost a baby, and never gave up on her dreams of the world might have featured Pixar's most fully formed female character. Then she died. (Ask yourself for a moment if the film would have been made any different by having the boy scout who ended up on the adventure be a girl scout. The story would have been as good with the bonus of giving little girls a character they could see themselves in). Eve from Wall-E is also a great female character who just happens to never talk. Cars, for being a film that seems made just for boys who like toys, had its heart in the female character voiced by Bonnie Hunt, a big city gal who gave everything up to live in the place she loved. The female chef in Ratatoulle showed how hard it is to be a woman in a man's world, but still got upstaged by a rat.

Until Brave, Pixar's biggest female character would probably be Dory from Finding Nemo. She's more memorable than Nemo's Dad (I literally can't remember his character's name...never a good sign). She's a good loyal friend who does her best even with a handicap which makes her unable to remember things. She starts off seeming like just a joke, but by the end of the film I didn't really care if Nemo and Albert Brooks were reunited as long as Dory was with people who accepted how awesome she was.

I am worried about what type of female Brave will give us. Will we have a complex character like Dory, Eve, or Mrs. Lou Grant from Up? I wish I could look to the Ebert review for help, but instead he just makes me even more concerned about what the media thinks of my gender.

Virginians: Wear your Gang Color Necklaces Safely

The Virgina Supreme Court has come down on the side of accessories in Rushing v. Commonwealth, (Va., No. 111569, 6/7/12) by deciding that the fact that a defendant wore a necklace with black and blue beads should not have been admitted into evidence as to the defendant's membership in a gang.

This makes sense. I'm wearing a black and blue necklace at the moment, although mine is to show my affinity with House Ravenclaw and not any gang membership. If a necklace is enough to show affiliation the risk is that many people could be convicted who were otherwise innocent.

On the other hand, it isn't as if gangs necessarily hand out membership cards and t-shirts or that they keep official membership directories. If the wearing of a necklace in gang colors can't be used, then what will be considered strong enough evidence?

From a pure statutory interpretation standpoint the Prosecution probably didn't even need to show that the defendant was actually in a gang. From Va. Code § 18.2-46.2

Any person who actively participates in or is a member of a criminal street gang and who knowingly and willfully participates in any predicate criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang shall be guilty of a Class 5 felony. However, if such participant in or member of a criminal street gang is age eighteen years or older and knows or has reason to know that such criminal street gang also includes a juvenile member or participant, he shall be guilty of a Class 4 felony.

Membership and Active Participation are two separate factors and the prosecution can prove either one. If "he wears beads" was your evidence of membership it seems that it would be stronger to focus on showing that he actively participates in a criminal street gang. Assuming that the State was able to prove the additional element of a "predicate criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang" (and because the ruling focused on the membership aspect I think this is a fair assumption) it would seem that showing that he was an active participant in gang activities, which is enough to meet the statutory requirements even without showing membership.

Backseat Prosecuting from a Jury Box

I wish I could tell you that I've been busy. I have, but I can't talk about it because of forms and paperwork.

I also wish that meant that the things I can't tell you are interesting. They aren't.

So, here's what I can say... juries are the worst.

Take, for example, the government's case against Roger Clemens for lying in front of a congressional hearing on drug use in baseball. I don't follow sports at all. I don't care about drugs and doping and whatever else is going on. That either makes me the WORST person to be talking about this or the BEST! Worst because I have no background and best because I can look at the facts without letting things like sports pride and fame get in the way.

Clemens lied. He was asked questions. He answered with things that were not true. Things he knew were not true. That is pretty much what we around here call perjury. And yet one jury failed to come to a verdict and the second one acquitted the guy.

Is it because the government couldn't prove the case? Because Clemens was innocent? Nope, apparently it's because the jurors didn't like the fact that Congress called Clemens to testify in the first place. Jurors in the trial are saying that they didn't like the case from the start because the didn't think it was something the DOJ should be prosecuting and that Congress shouldn't have been investigating steroids at all.

Really?

There is this common misconception about government that there are limited resources and that these investigations and prosecutions are zero-sum games. They aren't. The fact that Congress held hearings on drugs in baseball didn't prevent them from getting other work done. They're congress. They weren't going to get anything done anyway. And the DOJ's prosecution of Clemens didn't mean that they opted against prosecuting some terrorist or drug kingpin. They can balance multiple cases, especially since 95% of them end up in pleas. Most of the cases never make the paper because they are worked out in conference rooms instead of courtrooms. The cases that do end up in court tend to be weaker ones (the strong cases plea out) like Clemens or the John Edwards trial. People see these cases on the news and don't hear about all the other cases the DOJ worked out and then assume that this is all they do.

If the Clemens and Edwards juries think that they are sending the message that the DOJ needs to focus on more "criminal" feeling crimes, it's a message that doesn't need to be sent. Just because these cases with famous figures make the front page doesn't mean that there aren't many other cases, like the Gupta insider trading case, which don't make as big an impression because they involve names that aren't well known and fact patterns that you need a degree in accounting to understand.

The only message that is being sent is that it is okay to break the rules as long as you're famous.

The final lesson is that Prosecutor's in these cases might do well to talk about the elephant in the room. Instead of ignoring the fact that many people find these types of crimes (perjury, campaign finance, even insider trading) to be less worthy of prosecution, winning the case might rest on convincing the jury not only that the defendant is guilty, but that the case should have been brought in the first place.

Good Laws Don't Need Lies

I am back home in Tampa Bay. Currently I am in the backyard of my Aunt's home in Crystal Beach in a hammock while catching up on my reading and waiting for my Crim Law grade to come in. That's when I come across this article about incoming Florida Senate Dem leader Chris Smith's concerns about Stand Your Ground.

Stand Your Ground has already been talked about by people smarter than me for months, but what really made me take notice was a quote from incoming Senate President Don Gaetz and his son Rep. Matt Gaetz:

Consider an elderly woman in a dimly lit parking lot or a college girl walking to her dorm at night," they wrote in the May 2 Northwest Florida Daily News in Fort Walton Beach. "If either was attacked, her duty was to turn her back and try to flee, probably be overcome and raped or killed. Prior to Stand Your Ground, that victim didn’t have the choice to defend herself, to meet force with force.

 Now, I am sure that the Gaetz family believe this is accurate. They have probably been told that this was the case either by staff or lobbyists or someone else they trust. Because that is the problem with politics today. There is too much information and nobody can be an expert on all of them so they have to trust their staff or lobbyists for the truth. And sometimes those people have their own agendas that they place before the truth. I am sure that is what happened because, the truth is, that there was not a total duty to flee. Pre-2005 you could not use deadly force if they could retreat without increasing his danger, but the key is "retreat without increasing the danger". It would be up to a prosecutor to decide if the person who used deadly force could have retreated with a jury ultimately deciding what would have been reasonable in the circumstances. However, it is almost impossible to imagine a world where the Gaetz hypothetical would have led to charges. The old lady or young co-ed didn't have to retreat to the wall before shooting. However, if they were already in their secure car and someone outside the car threatened them they would have to drive away instead of getting out of the car and shooting them.

In Florida victims had the ability to meet force with force as long as it was reasonable to do so. The problem with Stand Your Ground is that it switched the burden from the victim having to show that it was reasonable to the Prosecutor needing to show that it wasn't. By taking away the duty to flee if it was safe you took away one of the elements that Prosecutors and law enforcement could use as proof that a killing was in anger instead of fear. If you eliminate retreat it becomes hard to tell the difference between voluntary manslaughter and self-defense.

More importantly, if Stand Your Ground is such a great law that doesn't need to be changed at all, then it doesn't need distortions to succeed. Instead of saying that victims had to retreat, even at the risk of their safety, before using deadly force the truth is that a lack of retreat could be used by law enforcement as proof that a shooting was not in self-defense. Maybe we don't want that as a state. Maybe we think that the right to ones own safety trumps other concerns like reasonableness. If so, let's be honest about it instead of trying to say that without Stand Your Ground women would be in danger.

I'm going to be pointing PolitiFact towards the quote that started this story to see if they agree with my analysis.

Leslie Knope is my Hero

(Spoilers for the latest episode of Parks and Recreation)

A friend and I recently had a discussion (ok, a fight) about what Thursday Night TV show is best, Community or Parks and Recreation. He said Community was the best because it was bold, interesting, and doing things that no other show on television does. He's totally right. But I love Parks because it doesn't reinvent the wheel. It's pretty much just the Mary Tyler Moore show (down to a curmudgeon boss... Lou Grant and Ron Swanson would be great drinking buddies) but with more surrealism in the comedy. I grew up watching Marty Tyler Moore on Nick and Nite and it still remains one of my favorite shows of all time. The fact that Parks and Rec is just an evolved version of it is no insult on my part.

Just as a generation of women were inspired by watching Mary Richards as she made it on her own as a working woman in TV News (Oprah talks lovingly of the series and how it inspired her to be a journalist), I know that many young women look up to Lesley Knope.

Leslie is also shown as being capable and smart. What other tv character is shown that way? Not since Murphy Brown has a comedy allowed its female lead to be something other than goofily bumbling through life. Ally McBeal and the shows that followed it had flawed female characters who seemed to barely be making it through the day. Carrie on Sex in the City couldn't manage money, had an affair with a married man, and seemed to always be in one crisis after another. These characters were an interesting response to the Amazonian Superwomen of 80s television series like The Golden Girls and Designing Women. The message was that even if you didn't have everything figured out you were still a good person.

That's a great message, and one that is currently being shown on HBO's Girls, but when the entire teleision landscape for women became flightly girl-women who represented them it crowded out representations of the strong women who they could one day become. For the longest time the strongest feminist character on television was 8 year old Lisa Simpson. At least until Leslie came along.

Let's be clear, Leslie isn't perfect. She's pretty, but she admits that best friend Ann is the beautiful one. Leslie is a borderline hoarder, she eats a diet mostly made up of waffles, and she is terminally uncool. Her office is decorated with pictures of her heroes like Hillary Clinton and not her boyfriend or some pop culture icon. The first season got a lot of traction out of Leslie's tendency to talk about historical political issues with people the way most would discuss American Idol. Even the most recent show made a joke over the fact that Leslie has about 20 replicas of the Washington Memorial in her office. What is different is that in the early seasons the jokes seemed to be directed at her. Now, we laugh because that is just something Leslie would do. It's the way you chuckle when you're friend who is into gadgets says he has to new iPad on order. Yes, of course he does. It's part of the reason you love him.

Leslie's dedication to her town, her love of her city, and her desire to be in politics to help others aren't funny anymore. They are things that we respect about Leslie. They are things we admire about her and, hopefully, traits that we want in our own lives. Watching Leslie winning her election gave me such a thrill. My interest isn't in political office (oh, god, no... I am pretty much unelectable) but I do want to work in the law or government in a way that helps people. And it's nice seeing that sentiment being shown on television.

The fact is that Leslie is my hero. I also hope that she's a hero for other women out there who will feel free to talk about politics without being embarrassed or having to play dumb in the process. It's going to be interesting to see who will end up taking her place in the Parks Department (April? Tom? Damnit, not Jerry!) but I'll be tuning in to see more of Leslie Knope being herself without any apologies. 

Because Judges are Illiterate

The title of this post comes from an inside joke (although since I suspect only 4 people will read this I guess maybe you'll all get it) involving something that someone in my study group had written in his notes for Leg Reg about why agencies were better at making decisions in some areas than judges. Of course, what he meant was that some judges are technologically illiterate, especially concerning some of the more specialized areas of regulation that administrative agencies cover. We shouldn't expect a judge to be an expert on the mating habits of the spotted owl or the air quality of classic car emissions, which is good because they usually aren't. In a post-Chevron world we've worked around this problem by limiting the concerns of judicial review of agency actions but that doesn't mean we still don't run into problems of technologically illiterate judges.

I want to take a brief moment to make clear that I'm not talking about all judges. Some judges are amazingly savvy when it comes to technology. When the Supreme Court looked at the issue free speech protections for video games in 2011, some justices clearly knew their stuff. Chief Justice Roberts commented about the ease with which children can bypass parental controls, Justice Sotomayor discussed how the law would treat games featuring the deaths of Vulcans different from humans, and Justice Kagan talked about Mortal Kombat. Justice Scalia, on the other hand, said "I don't know what she's talk about" in response to Kagan's discussion of the game. A lack of knowledge doesn't necessarily result in bad decisions making. Justice Scalia may not have even put a finishing move on an opponant but he still wrote the majority opinion that gave first amendment protections to video games. Scalia got it right in that case, but sometimes a lack of technical knowledge leads to a bad result.

Which brings us to U.S. District Judge Richard Seeborg who recently dismissed a class action lawsuit against Activision and Sony over claims that the Call of Duty games caused first generation Playstation 3 gaming systems to overheat and break. You can read the entire complaint  for yourself but this passage highlghts the problem.

The only misrepresentations identified by the SAC [ed. note Sony America Corportation] on the game itself areSony’s logos – “PS3,” “PlayStation Network,” and “Only On PlayStation.” Plaintiff evidently ascribes a great deal of significance to these phrases, as the SAC contains no other allegations about the videogame’s packaging or the documentation that may have accompanied it. Given that the SAC acknowledges that the PS3 line includes numerous models released over a number of years, it is difficult to accept Garcia’s allegation that the mere presence of PS3 logos on the front of the game’s box, without reference to other disclosures that may have appeared on it, constitutes an affirmative misrepresentation that would deceive a reasonable consumer into believing that all such branded games must be compatible with all PS3 models in perpetuity, or at least for some unspecified number of years.

 As any gamer knows, yes, that is exactly what that logo means. Judge Seeborg may be thinking of a situation common with PC ownership, where a windows XP logo on a piece of software doesn't mean it will work with your XP computer because of other issues with memory or storage or the video card. That isn't the case with gaming consoles. As a friend of mine who works in the video game industry pointed out, "Consoles don't change their min specs like PCs. That's the whole point of them."

The same friend observeed that it's unlikely that any game could cause this type of problem with the console (especially because of the massive quality control process devlopers and Sony puts on games before they reach store shelves) but that it an issue of fact for the trial. To dismiss on failure to state a claim in this situation, for this reason, doesn't seem right. 


It does serve as a good lesson for us (hopefully one day) practicing attorneys that you can never assume a certain level of background knowledge in the judge. As someone who grew up with during the Video Game generation (I remember PONG) I would have assumed that everyone knew that newer games made for a console are still expected to play on that console. If it didn't that it would be expected to have a notice on the box saying that.  I just expect it, the way I expect a new CD to work in my cars CD player even though it's seven years old. I probably would have made the same mistake as this lawyer and not written in some workding about how all games made for the PS3 are expected to work on the PS3,including those made for the first generation. And clearly, that would be a mistake. 


Sure, this was an error on the part of the judge. It was a bigger error on the part of the lawyer for assuming that the judge would know this. Justices Kagan and Sotomayor may have allowed this suit, but they weren't the ones on the bench.