Negligent Infliction of Emotional Distress #17: Preemption

As previously promised, this is NIED column #17 on Preemption.  It is primarily intended to address preemption in the Law Review context--but truth be told I did not make it onto a Journal at our law school and so my analysis of the preemption concept may not square with the wisdom of such fortunate students.  However, preemption arises in other contexts, and the episode that this column describes is in fact true.  Nevertheless, at this point I have serious doubts that the friend of my friend was telling the truth when he said he was "really tired because he was out partying with Lindsay Lohan the night before."  I have heard stories of people that simply make things up on Facebook and claim they are friends with celebrities.  I have no patience for these types of persons and do not want anyone to consider me as being "on that level."  I like to think I give people the benefit of the doubt, but I do indeed have serious doubts that Ms. Lohan will be interested in a contract (paying perhaps $100) for the lead female role in Batman in Brooklyn.  Regardless, if she happens to come upon this post by some serendipitous act, I would be very interested indeed in discussing the project with her.  While my time and funding are at all-time lows, my creativity, I think, is at an all-time high.

Negligent Infliction of Emotional Distress No. 17: Pre-Emption

                I recently heard that a friend of a friend had been hanging out with Lindsay Lohan all night. A few days later, Lindsay Lohan was on the news, apparently the victim of an assault in a Manhattan hotel room. 

                Before the assault though, I told my friend, “Look.  Hynes is no longer able to be in Batman in Brooklyn.  It would have been exciting to have him, but we can’t.  But.  If we can get Lindsay Lohan. This film will be incredibly important.  It will be her comeback.  And it is made all the more perfect by my Parent Trap Redux (due about November 18, 2016) – which specifically abrogates the Parent Trap remake.  Give me five minutes with her and I guarantee I can get her to sign on.”

                Previously I had been formulating the idea for the opening shots of the film. It opens with a shot of the new World Trade Center and the Brooklyn Bridge, 50/50 in composition. There would be many more shots. Still shots. Landmarks around Brooklyn. There would need to be music in the background. I thought Dum Dum Girls would be appropriate. I thought “Jail La La” would be appropriate.

                A couple days after that, the assault occurred, and a news item on Pitchfork discussed a new film that Lohan will appear in. It is directed by Paul Schrader (screenwriter of Taxi Driver, director of a dozen other vaguely-acclaimed films) and written by Bret Easton Ellis (uber-hipster). The preview consists of still shots taken around Los Angeles while a Dum Dum Girls song plays in the background.

                I weep.

                I get into trouble when I write about journals, but I must comment upon Preemption.  Many students complain about not being able to write about the topic they want to write about. But there are many topics that occur to me.  They occur whenever I observe a phenomenon in real life (say, for example, psychiatrist liability post-Tarasoff with the “Batman in Aurora” incident as the intro).  They occur whenever I do research for an internship (say, for example, establishing a BAC threshold for marijuana DWIs).  They occur whenever I do my reading assignment for the next day (say, for example, that holographic wills should be admitted in more states).  They do not occur when I actively try to think of a good topic to write about (say, for example, the effect of the Affordable Care Act on Medicare spending).

News flash: I did not make a journal. I wrote a 40 page paper with 188 footnotes though. 

I saw one journal article that had 350 footnotes though. 

It wasn’t good enough for the open note competition. So I am revising it.

But I found, when I did my preemption check, that I was, essentially, pre-empted by two articles.  (Briefly, my article was on the Temporary Help Industry. It was extraordinarily ambitious, but the reason stated for its rejection was that its personal elements detracted from its legal analysis. Understandable.) One addressed unemployment benefits for temps, and the other was basically the same as my article except it was longer and didn’t contain the personal element (and I quoted from it liberally).

                And so we cannot write about that topic—or rather, we just have to “tweak” our topic so that it’s “original” but we may have to focus on a tangential issue that we don’t find as intriguing—because somebody else got there first.

                It is almost like in Manhattan when Woody Allen asks Michael Murphy why he deserves to go out with Diane Keaton.  Murphy says, “I liked her first,” to which Allen replies, “What are you, six years old?” It’s almost like the Great Journal Editors in the Sky are saying, “You couldn’t possibly do a better job, so you can’t write about the same thing.”

                The obvious analogue here is copyright law—but I will not purport to know anything about that since (due to my own great fault and misfortune) I have not been able to take that course.  But I know that it is not okay to steal someone else’s idea.

                I suppose that the rationale underlying preemption is that we do not want to encourage law students to write articles that have little hope of being published, because a journal would not want to publish a duplicative article.  But as far as I am concerned, so long as the article updates an old article, it should not be pre-empted (as indeed mine was not, written as it was in 2009, before the real effects of the financial crisis had been more clearly reflected in reality).

                Which leads to my final point: since the past 5 years have involved a significant social upheaval, preemption should not be a problem, because this “Great Depression Part Two” affected almost every sector of the economy and American life in general—to the point that articles taking stock of its aftermath should not be struck down by the Preemption Hammer.

                Unfortunately for me and Ms. Lohan, the film industry doesn’t even pretend to be fair.  If the legal industry at least wants to give the appearance of fairness, it needs to be changed from the bottom up, and that means journal reform—as vague as it may sound.  I may not make the same film I want to make due to pre-emption, but law students should not be pre-empted from writing the articles they want to write. 

                Christopher J. Knorps is a 3L at Brooklyn Law School.  He enjoys studying bankruptcy law.  He has been told not to be defensive about his failure to obtain journal membership, but he cannot stay quiet in the face of injustice—particularly when it rains down upon him.    

Batman in Brooklyn: Mission Statement

Why is Batman in Brooklyn Important?

Because it is a Batman movie.  All Batman movies are important at the time of their release (though opinions may differ, mine is that two of the films--or three--or four--are mostly forgotten to history, but five films endure).  Batman in Brooklyn will be important when it is released.  We are aiming for a release date of December 20, 2013.  The premiere must take place, of course, in Brooklyn.  Preferably at the Brooklyn Academy of Music.

But aside from the excitement that each new Batman movie generates upon its release, Batman movies are important in general because they reflect society via metaphor (as all films should aspire to do).  This metaphor has been written about here previously (see "Batman in Aurora" post) but is essentially the struggle between good and evil--that is, the choice to be good or evil.

It is essential that Batman in Brooklyn be made because Brooklyn is Batman's true home.  Yes, I know Gotham City is his true home, and most people associate Manhattan with Gotham--but there are plenty of signs that Brooklyn is a more realistic setting for Batman than Manhattan (See The Dark Knight Rises denouement. See also Bloomberg's decision to divert all traffic in Manhattan so that a "g**d*** Batman movie" could be shot, in the words of Keith Olbermann).

I think it practically goes without saying that Batman is the most commercially successful comic book character film franchise--and will never be topped.  Not by Superman.  Not by Spiderman.  Not by Iron Man.  Not by The Avengers.  No.  (Not by Twilight.  Not by Hunger Games.  Not by Harry Potter.  And not by Fifty Shades of Grey either, or the Lord of the Rings for that matter.)

Those movies do not get nominated for Oscars.

Lord of the Rings did, but I challenge anyone to argue that that Trilogy is better than the new Batman Trilogy.  I do not think there is any better Trilogy except for the original Star Wars and Indiana Jones films.  I would rank one other Trilogy in the same class:

1) Star Wars (excluding the 3 new movies)
2) Indiana Jones (excluding the 4th)
3) "The Dark Knight" Trilogy
4) Back to the Future

The difference is that those films (ALL OF THEM!) are unrealistic action-adventure fantasy epics.  Batman is very much the story of modern society and all of its attendant psychological uncertainties.  (There may be some dispute as to whether BTTF is unrealistic, but most scientists agree that time travel into the past is impossible.)

Batman in Brooklyn is essentially a remake of the original Batman (1988) but elements have been added to the make this film entirely something new.  Here are the key differences:

1) Budget.

Batman had a massive budget, and was the most successful film in box office history (by opening weekend receipts) at the time of its release.  Jack Nicholson became the highest paid actor in film history (until Leonardo DiCaprio copied his idea for--surprise,surprise--Christopher Nolan's one-non-Batman movie amidst his trilogy--another highly-acclaimed film). But it took about ten years to make, numerous script revisions were made, and a last minute horse-riding accident necessitated re-casting the female lead (Kim Basinger subbing for Sean Young).  Roger Ebert's review (which gave the film 2 stars) said that it was beautiful to look at, but did not appear as if anyone had any fun while making it.

Batman in Brooklyn will be filmed on the most meager of budgets.  The special effects will be a joke.  But it will be fun to make.  And while it will exist in a metaphorical world where Marc Drier is not in jail in 2012, it will be directly situated in real world events.  While the make-up and costumes and art direction may suffer from some aesthetic deficiencies, it will be the quality of the performances that take the film out of the "remake genre" and into the "update genre."

Some films need to be updated, and some do not.  Superman was definitely in need of an update, and we will see how Man of Steel stacks up next summer, but Superman Returns was certainly a disappointment.  The original Superman is not bad at all - from what I understand (I've only seen most of Superman 2 - which I think most people consider comparable to the first) - but it is certainly a relic of its time.  Batman Returns is more of a relic of the early 1990s than is Batman, and so in a sense might be the better film to remake.  However, Batman Returns is a significantly more complex film.  Ebert also gave it 2 stars.

2) Not directed by Tim Burton.

Let me make this clear: I do like Batman Returns--a lot.  But, as Ebert I think correctly points out, the film is very episodic and lacks a coherent plot.  There are wonderful scenes--the opening scene is probably the most heartbreaking scene in any Batman film, period.  Danny DeVito does what he can with the role of The Penguin--but I believe the film suffers from "Burton-vision."

Let's delve even deeper into Burton and Ebert.  Interestingly, Ebert gave Beetlejuice 2 stars.  Beetlejuice may not be a 4 star film (which I would give it), but at least deserves 3.  Ebert concedes that it is a "fairly original" plot (understatement!) but then goes on to denounce Michael Keaton's performance!  He claims that every scene with Keaton is a misstep.  I believe this is patently false and time has shown that performance to be a stroke of comic genius.

(Note: I have not yet read the review of Pee-Wee's Big Adventure but I suspect it got 4 stars...)

It is interesting to note that Burton made Edward Scissorhands in between Batman and Batman Returns.  Ebert also gave Edward Scissorhands 2 stars (he may have given it 2.5, I can't recall).  Again, Ebert is wrong.  Note here that most of the time, I totally agree with Ebert.  I do not LOVE Edward Scissorhands, but it is better than 2 stars.  Deserves 3.  Many people would say it deserves 4.  Some consider it a classic film.

And then look at what Burton went on to do (everything?).  He directed Batman at age 29 (another reason I am meant to make Batman in Brooklyn).  He took Johnny Depp as his de-facto star, and in the 20 years since Batman Returns, became a Hollywood icon of the most unlikely sort, creating a visual style completely his own.

Also interesting to note: Tim Burton's first film was Frankenweenie--a live action film judged to be unsuitable for children.  Tim Burton's upcoming film is Frankenweenie.  Not live action, but "Nightmare Before Christmas-style" live action.  I do think it is important to remember that Tim Burton has made these films since 1992: Ed Wood (excellent), Mars Attacks! (underrated/misunderstood), Sleepy Hollow (boring), Planet of the Apes (a remake worse than the original, as they usually are--See The Parent Trap), Big Fish (excellent), Charlie and the Chocolate Factory (a remake worse than the original--but not without its certain charm and visual originality that Apes lacked), Corpse Bride (excellent--and though I may be in the minority here, an improvement upon Nightmare Before Christmas), Sweeney Todd (a film I could not watch for more than five minutes - boring), Alice in Wonderland (a remake worse than the original, and lacking a certain charm despite supposed visual originality--too weird), and Dark Shadows earlier this summer (never saw it, heard it was not good).  Frankenweenie will be out before the end of the year and looks to be a very emotionally compelling film. (Trivia: Johnny Depp is in 8 of these films and has appeared with alarming regularity since Charlie.)

 With Frankenweenie coming out, and Tim Burton's career coming "full circle" in some sort of sense, which includes more than its fair share of remakes, this is the perfect time to make Batman in Brooklyn.

3) Bloomberg.

The Mayor of Brooklyn is not Mayor Borg - but Mayor Bloomberg.  He is undoubtedly one of the most ridiculous mayors in American history, and his time will soon be up in New York.  Batman in Brooklyn is, on a sub-textual level, a critique of New York City Post-9/11.  It is a critique of capitalism and the fraud that it necessitates.  It is a critique of politics and media coverage.  Finally it is a critique of humanity--or rather, inhumanity.  That is, "silent/helpless observation," or "apathetic one-dimensional thought."  Whoever is next elected Mayor of New York has a great task ahead--but it will be their leadership that determines whether this city sinks (like in the 1980s) or is restored to another period of glory (2001-2002, late 1990s, mid-1960s, etc.).  Batman in Brooklyn will be the cinematic equivalent of The Prince - a text that informs the powerful how to best govern the citizenry.

4) No famous actors.

Batman in Brooklyn was going to be very important if D.A. Hynes of Brooklyn were to play himself, but word has recently leaked out that he is no longer interested in the project.  While this rumor has yet to be substantiated (I call statements made by press secretaries "rumors"), if it proves true, the project must go on regardless.

While Jay-Z might be a very good celebrity to get involved (or Brooks Lopez, who is apparently a big fan of Batman), we simply lack the personal connections to make such a business arrangement feasible.  But the project continues to evolve, and new forms of serendipity seem to affect it on a weekly, if not daily basis.  Anything is possible--until the scenes are shot.

5) New sub-plot.

The new sub-plot will make the film much more coherent than the original Batman because it will bring in more "macro" concerns that the "Dark Knight" Trilogy has been so good at incorporating.  I am being purposefully vague so I do not ruin the surprise.

However, I must state that some discussion of including Superman as a villain has taken place.  The final decision on this matter has not been made, but while there is a strong presumption in favor of including Superman, adding said element could be the proverbial straw to break the camel's back, given the apparent extraordinary difficulty of making Batman in Brooklyn in the first place.  Everybody wants to see Superman in a Batman movie, but we run the risk of turning the project into more of an absurdity than it already may be considered.

Why Would Batman in Brooklyn Fail?

Because I am not a professional director.  I did not go to film school.  While I will concede that this film is likely to be a failure, it will be completed, even if it gets to the point that I need to play (almost) every single role there is in it.  Batman in Brooklyn is a personal statement for me, and my love for film, and my love for Batman.

When I was about 6, I wrote a screenplay for "Star Wars Part 4" (which probably would have been better than The Phantom Menace proved to be about ten years later).  When I was 18, I opted into Blockbuster's 30 rentals for 30 dollars for 30 days deal - and I went to the store every single day to get a new film (most of them were Woody Allen movies).  I went to NYU, ostensibly for film school, but decided against it at the time.  I did not like the rigid structures that those students had to adhere to, and I did not see how I would make any money straight out of it.  So I focused on writing first.

And I tried to work in the real world.  And I wrote novels, short stories, memoirs, essays, and book reviews.

And I went to law school.  This is the real turning point in my life.  My writing dreams have been dashed due to my own personal belief that the book industry has died due to mass-ADHD-outbreak, where the only books that get read are those that are turned into massively successful film trilogies. And because I have gotten mired in the rigidity that is an education in legal doctrine, I rediscovered my love of film and the freedom such expression entails.

I do believe that law school has improved my writing (this post excepted--for various reasons, primary amongst them its personal nature) and Batman in Brooklyn is my attempt to show the world that just because I did not go to film school, just because it is not made with even "adequate" equipment, just because the players are not actors--but mostly law students (which requires a certain measure of acting skills, to be sure), just because there is no financing, just because it's probably a minefield of copyright and trademark infringements, just because I'm incredibly busy as a 3L looking for a post-grad job, along with balancing my coursework and all the other extracurricular commitments I've foolishly bought into, and just because nobody knows who I am, I can make a film that is truly different and great.

And I do believe, that while Batman in Brooklyn is likely to be a failure, it is a necessary failure--for it is only the first step in a planned set of four films (Back to the Future Part 2: Present to be released October 21, 2015; The Parent Trap Redux to be released November 18, 2016; and Older Wayne's World to be released October 27, 2017).  I know from my experience with writing novels that the first, at least for me, was primarily a learning experience.  I only hope that my experience with film will not cause me to abandon all future projects because of the extreme difficulty of it all.

I know that making a film is not an easy thing, but Batman in Brooklyn is not supposed to be easy.  However, it is supposed to be fun and if we have fun making it, even if it fails to find an audience, then it will bring me much happiness and personal satisfaction.

Triple Homicide - Charles J. Hynes

Triple Homicide is Charles Hynes' first novel and has received scant attention (but see New York Times Review,  available at http://www.triplehomicidebycharlesjhynes.com/reviews/brooklyn_murders.htm) since it was published in 2007.  Those that have written about the novel usually end up writing about Hynes himself, and his "day job."  It states in his author profile that Hynes' has been the District Attorney of Brooklyn for 17 years, so he was elected in 1990.  He still is the D.A. twenty-two years later.

There are six reviews on Amazon, which are, as usual, of varying degrees of intelligence.  However, most of the reviews do mention that the book gives an "insider's look" at the NYPD from 1970 - 1990, and in this respect it is faultless.  Clearly, this is a story that needs to be told, as all of the police departments in major American cities undoubtedly have a fascinating history.  However, it would not be fascinating if they were all just great cops, and it is in the details of the despicable "cyclical" corruption and the "Blue Wall" of silence that protects cops from discovery that makes Triple Homicide an essential read for anyone that (1) wants to be a cop, (2) is already a cop, (3) wants to work for Corporation Counsel and must defend police officers in lawsuits brought against them, (4) wants to be a prosecutor (particularly an ADA in Kings County), (5) wants to be a criminal defense attorney, (6) enjoys reading about "true crime."

However, this is not the type of book that Flying Houses usually reviews (but see TRAIL OF THE DEAD. JON EVANS, available at http://flyinghouses.blogspot.com/2009/03/trail-of-dead-jon-evf booans.html).  It is a "pulp" mass-market paperback "page-turner."  But while that may be a bad thing, as I would consider the majority of books in that genre a waste of my time, it is not always a bad thing.  There are high-quality mass-market paperbacks out there, and this is one of them.

While it is somewhat difficult to describe the plot without spoiling anything, certain events and characters may be mentioned.  This is principally the story of 2 cops in the NYPD: Robert Mulvey and Steven Holt.  Robert Mulvey is Steven Holt's uncle, and a role model.  Both of these cops become entrenched in a system of corruption, and though they try to be good cops, they are forced to make certain compromises.  Mulvey works in the late 1960s and has his own controversy which is never spelled out until the end of the novel, which is the right decision.  Holt works in the late 1980s and early 1990s until he is indicted for the murder of three individuals in 1992.

My single greatest complaint about this novel is that it can be extremely confusing.  There are a number of characters that fly in and out of the picture: Captain Nevins, Connolly, Kenny Rattigan (the Queens D.A.), Larry Green, Buddy Cooper (the Brooklyn D.A.), Brendan Moore, Wallace Goss, Scott Ruben, Gabe Perone, Kurland, Pressler, and Meyer Hartwell.

Hartwell only appears in a scene or two, but Hynes' description of him is worth quoting in full, because it is one of the few times that I couldn't help myself from laughing out loud:

"Meyer Hartwell was as unlikely looking a cop as you could imagine.  Short, overweight, and mostly bald, Meyer had grown his black hair as long as he could from the left side of his head and then folded it over to cover the rest of his bald pate.  The effect was an unintended burlesque look.  Meyer had a perpetual crown of perspiration hanging on his forehead.  His distinctive and in certainly no way attractive face brought attention to itself with a large, bushy black mustache flecked with gray and some strange-looking pieces of debris that remained from a recent meal.  His tiny dark and deep-set eyes were obscured by a long, thin nose discolored by popping blue and red veins.  Protruding aimlessly from his nostrils were several strands of nose hair.  Police Officer Hartwell appeared to have selected his uniform each day from the bottom of his closet.  Frayed and always wrinkled, his uniform shirt with the lower two buttons missing hung over a belt forced out by his bulging stomach.  His black shoes were almost gray with scuff marks.  None of this mattered, though, because he had graduated third in his class from the Police Academy, and because of his grades his first commanding officer at a police precinct in the Bronx tapped him to be the 124 man."  (59)

I won't explain what the 124 man does--I'll let you find out if you choose to read this novel, which I would recommend despite the great quantity of characters and the difficulty of keeping everybody's name straight.  That said, there are many characters that are memorable--usually the bad guys.  But the two principal characters won't be confused, and they're the heart of the story.  The "sub-plot" is the internal structure of New York City crime-fighting, and attempts to end police corruption, and this is very interesting stuff, but this is where the names get confusing, and it's tough to tell exactly who is opposing whom unless you go back and verify what each characters does.

So, if I had to review it on Amazon I would give it 4 out of 5 stars because of this issue.  Otherwise, this is a real "page-turner" that just gets better as it goes along.  The last 100 pages flew by for me.

It is perhaps worth noting that I would not have read this book if Charles Hynes had not been my professor for Trial Advocacy.  I like to say that this style as a professor is "Taylorist," that is, he teaches Trial Advocacy as if there is "one best way" to carry out a given task--in this case, 4 tasks: opening statements, direct examination of a witness, cross-examination of a witness, and summations.  In this sense, it is worthwhile to read this book if you are taking this course as well, because the trial scenes are probably the highlights of this book.  Hynes also offers an interesting roadmap for a career for those interested in being a judge, and coming from a person like him, one is bound to respect it as authoritative:

"Kerner was just warming up.  "Then there's the ADAs.  Used to be that a guy would get out of law school, join a political club, usually the Democrats, get a job as an assistant district attorney, and have a law practice on the side.  He'd hustle to make a buck, didn't get nothin' without workin' for it.  The guy knew how much the public wanted law and order, so he'd never break our balls.  He never questioned a cop.  He didn't care that we'd fuck around a little bit--nothin' serious, just enough to get the bad guys off the street.  Then after a few years the ADA would graduate to a job as a judge's law secretary, sort of half an ass-kisser and half a gofer.  And finally, after a while, with a few bucks placed here and there, you know..."
Holt didn't know, but he pretended he did.
"He'd become a judge, and that concluded a fine career.  I used to think that one of my jobs in life was helpin' a young ADA become a judge."  (213-214)

The chapter from which this passage is excerpted is titled "33, East New York, Brooklyn, the 75th Precinct, June 1985," and is the "first lesson" that Steven Holt gets as a new officer straight from the police academy.  This is one of the best chapters in the novel, as Hynes goes on to explore a few interesting cases through the voice of Kerner.  It is an interesting way to look at the law--to have a character that has obvious biases, who seems to be fairly intelligent, and who interprets judicial decisions through their own lens--and I have not seen it done before, so in this respect it opens up a lot of possibilities for writers that have a good knowledge of the law, and can mange to make it fairly interesting for the lay reader.

Hynes does this well, and as I said, my chief criticism of the book is its bevy of characters with indistinguishable features.  It's possible Hynes had written a much longer book that more fully developed the characters and was forced to edit it down, but perhaps I am being picky.  After all, I read this book at intermittent moments from February 2012 - June 2012, and if read in the course of say, one week, which I think is par for the course for a 288-page novel, then the reader is less likely to forget who was who, and generally read the book much more smoothly.  However, I do not think I am the only that would make this complaint about the book, but to a certain degree, this effect is impossible to avoid in a story with so many players.

The quality that this novel brings is "realism."  Once a reader has finished, they will have effectively taken a crash course in the history of the NYPD, and the way it functions in conjunction with other city agencies and city government in general.  Along the way there are a dozen or so intriguing scenes of "true crime," and as mentioned earlier, the trial litigation scenes.  The "lawyering" that is done in this book may not be universally endorsed by Hynes, but you can usually tell from the voice of the narrator when he approves or disapproves of the tactics used in the decisive trial.

Several reviewers on Amazon express their hope that Hynes will offer up a sequel, and he was, at least 6 years ago, working on one.  There is an interesting interview that took place at a Barnes & Noble on Staten Island in June of 2006, and is worth watching for anyone that thinks they might be interested in reading it.  Among the highlights are Hynes' disdain for literary agents, which I could certainly identify with, and his mention of real-life inspirations for the book.  A link to that interview can be be found here: http://www.youtube.com/playlist?list=PLC8BB94E32F8F108E

In short, I agree with those several reviewers, and would certainly read a follow-up to Triple Homicide, not because this is the usual genre of literature that I enjoy (more likely because I was lucky enough to take a class with Hynes), but because it would undoubtedly be a fascinating read from which many lessons can be learned when it comes to operating city government.

Also, Hynes gave me a B+, so I would give this book a B+.


P.S. - Flying Houses will now start annotating everything Blue Book style to show how ridiculous it is.