25 January 2013


Shades of the class action against Greg Mortenson in news of a class action in California over memoirs by Lance Armstrong.

The class-action complaint was filed in federal court in Sacramento against Armstrong and publishers Penguin and Random House for fraud and false advertising for selling Armstrong's It's Not About the Bike and Every Second Counts as works of non-fiction. The plaintiffs claim that they purchased the books as non-fiction and accordingly felt "duped", "betrayed" and "cheated" after Armstrong revealed that his performance as a cyclist had been illicitly 'enhanced' through use of chemicals. So much for years of vehement denial by the sports star (or for gullibility on the part of fans regarding Armstrong's record seven Tour de France titles in a sport with a long tradition of doping).

I've written elsewhere that latitude for exaggeration, deliberate elision or imperfect recall has meant that there is little case law regarding claims by readers for damages from authors (or publishers) over fictions that were marketed as "searingly truthful". Authors presenting manuscripts to agents and publishers or film-makers may be guilty of fraud but are not on oath and thus do not breach expectations regarding perjury.

Most litigation has accordingly involved -
  • efforts by publishers or third parties such as film producers to claw back payments made to authors on the basis that the author was providing an accurate account of their own life rather than an overheated fantasy
  • defamation action by relatives or associates of the memoirist.
In responding to a class action in 2006 James Frey and Random House unusually agreed to provide refunds to individuals who purchased A Million Little Pieces, the supposedly truthful memoir unkindly described by one critic as A Million Little Lies. Neither the publisher nor author admitted liability. The refund was not offered outside the US.

Random indicated that it was concerned about fraud on the part of buyers (authorial creativity is apparently another matter). The refund was thus conditional on consumers providing both proof of purchase (eg extracting a page from the book) and a sworn statement declaring "that they would not have purchased the work had they known that Frey had not been entirely straightforward in his account".

It has been reported that the plaintiffs' lawyers received US$783,000 (compared to Frey's earnings, at the time of settlement, of US$4.4 million). Some 1,730 people were members of the action, substantially less than the 3.5 million people who purchased the book. The refund per person is reported as US$15.81. Do the maths.

Points of entry to the legal literature are Jessica Lewis, 'Truthiness: Law, Literature & the Problem with Memoirs' (2007) 31 Rutgers Law Record 1-17; Samantha Katze 'A Million Little Maybes: The James Frey Scandal and Statements on a Book Cover or Jacket as Commercial Speech' (2006) 17 Fordham Intellectual Property, Media & Entertainment Law Journal 206-23; Jason Kessler, 'First Amendment Protection for False Commercial Speech by a Publisher Regarding the Truthfulness of Its Publication: A Response to Litigation Arising over James Frey's A Million Little Pieces' (2006) 24(3) Cardozo Arts & Entertainment Law Journal 1219-1238.

24 January 2013


William Cowper on one of his rabbits
Puss grew presently familiar, would leap into my lap, raise himself upon his hinder feet, and bite the hair from my temples. He would suffer me to take him up and to carry him about in my arms, and has more than once fallen asleep upon my knee. He was ill three days, during which time I nursed him, kept him apart from his fellows that they might not molest him (for, like many, other wild animals, they persecute one of their own species that is sick), and by constant care and trying him with a variety of herbs, restored him to perfect health. No creature could be more grateful than my patient after his recovery; a sentiment which he most significantly expressed, by licking my hand, first the back of it, then the palm, then every finger separately, then between all the fingers, as if anxious to leave no part of it unsaluted; a cermony which he never performed but once again upon a similar occasion. Finding him extremely tractable, I made it my custom to carry him always after breakfast into the garden, where he hid himself generally under the leaves of a cucumber vine, sleeping or chewing the cud til evening; in the leaves also of that vine he found a favorite repast. I had not long habituated him to the taste of liberty, before he began to be impatient for the return of the time when he might enjoy it. He would invite me to the garden by drumming upon my knee, and by a look of expresion as it was not possible to misinterpret. If this rhetoric did not immediately succeed, he would take the skirt of my coat between his teeth, and pull at it with all his force. Thus Puss might be said to be perfectly tamed, the shyness of his nature was done away, and one the whole of it visible, by many symptoms which I have not room to enumerate, that he was happier in human society than when shut up with his natural companions ... 
Puss is still living, and has just completed his tenth year, discovering no signs of decay, nor even of age, except that he is grown more discreet and less frolicksome than he was.
Nussbaum on Stoicism and Foucault
What sets philosophy apart from popular religion, dream-interpretation and astrology is its commitment to rational argument. What sets stoicism apart from other forms of philosophical therapy is its very particular commitment to the pupil’s own active exercise of argument. For all these habits and routines are useless if not rational. And the basic motivation behind the whole business is to show respect for what is most worthy in one-self, for what is most truly one-self. One does not do this by anything except good argument. At the end we have not the images of habituation and constraint so prominent in Foucault’s writings, but an image of incredible freedom and lightness, the freedom that comes of understanding that one’s own capabilities and not social status or fortune or rumor or accident are in charge of what is important. The procedures of Stoic argument model a kingdom of free beings – the ancestors (in terms of both content and causal influence) of Kant’s kingdom of ends, a kingdom of beings who are bound to each other not by external links of hierarchy and convention, but by the most profound respect and self-respect, and by their sense of the fundamental commonness in their ends. It is doubtful whether the view of the world contained in Foucault’s work as a whole could admit the possibility of such a kingdom, or its freedom. For Foucault, reason is itself just one among the many masks assumed by political power.
And Midelfort on Foucault
As a mental tone poem Foucault’s work has inspired outpourings from enthusiastic readers and baffled groans from empirically minded skeptics. The most charitable and perhaps most illuminating reading of Foucault’s history sees it as a great idealist portrait of the age of reason as an age of confinement, a time when the self-proclaimedly moral and reasonable saw fit to lock up those who seemed less hardworking, less moral, and less reasonable. Foucault worked at such a level of symbolic abstraction, however, that empirical criticism never much bothered him or has bothered his disciples. If one finds, for example, that Foucault's image of universal confinement is overdrawn for England, Germany, or even for France, why then one has misunderstood what Foucault was using the image to accomplish. If one finds that Foucault betrayed Romantic tendencies and a complacent acceptance of conventional periodization, one is told that one has naively bought into the project of the Enlightenment, with its belief in progress, or that one has overlooked the radical nihilism of the master. Basic to the Foucaultian perspective is a corrosive suspicion that all historical liberations have actually deployed a subtle exercise of power (often state, economic, or sexual power), and that knowledge itself is a function of power (not that knowledge gives one power, but that power constitutes or constructs "knowledge"). ... [F]or historians committed to recapturing the texture of the past, the complexity, variety, and competition of various discursive practices in the past, Foucault's work is a radical and dramatic simplification, a reduction of whole generations, countries, and disciplines to symbolic markers in a moral game whose object is the destabilizing of the present.

22 January 2013

Elvis is my pilot

What I want to know is whether Elvis was piloting the saucer.

Under the headline 'Spacecraft caused car crash, say pair', Kieran Banks in the Brisbane Times reports that "two men who walked away from a car crash near Brisbane's Wivenhoe Dam claimed to be chasing an alien spacecraft when found by police".

It's a less convincing excuse than that provided by some law students, including the 'dog ate my homework' excuse, said dog having eaten the USB stick.

The report indicates that
Police and the driver's insurance company received several sketchy phone calls from the men, who appeared to be convinced paranormal activity caused the crash.
Police received the first call from the men at 2.25am on Friday, saying they had been in an accident at Split Yard Creek and asked for the RAAF to attend.
It later became apparent the car had gone off the road and down an embankment near the Split Yard Creek bridge.
The phone call dropped out, and after 30 minutes of trying to contact the men, police received a call from RACQ Insurance.
Nice to see that the RAAF hadn't been sent to the rescue!
Police said the conversations with the men were vague and at times barely understandable.
The men began to "freak out", telling the insurance company they were about to disappear and referred to the area as the Bermuda Triangle, police said.
Police called the men back, with the second male answering the phone, telling police there were "some really weird things going on" and they had abandoned the car.
Police received another call from the men at 4am, claiming that "something paranormal" had occurred and ''big bright lights'' caused the car accident.
Police found the men at 4.10am at the intersection of Wivenhoe-Somerset and Hyne roads. They were armed with knives and appeared to be protecting themselves.
Aliens are presumably able to fly half-way across the universe but remain scared of knives.

Alas, one of the dynamic duo was charged with assaulting a police officer (perhaps he thought that the men in blue were men in black, or just bug-eyed monster in disguise) and the driver when breathalysed was over the limit and accordingly will appear in court. No indication of whether he'll be wearing an alfoil beanie.