The Situationist

Archive for March 20th, 2007

Suing the Suer: Video Game Company Sues Jack Thompson

Posted by The Situationist Staff on March 20, 2007

Jack ThompsonIn January, The Situationist featured a posting on the intersection between tort law and social psychology in violent video games. That post, which generated some wonderful reader comments, examined the legal maneuvers of attorney Jack Thompson, who has made it a personal and professional mission to prevent the sale and distribution of violent video games. The Miami-based, Vanderbilt Law-grad has initiated several tort lawsuits relating to children who harm others and who then attribute their harm-causing activities to the playing of violent video games. Thompson’sMature Rating basic contention is that video game companies owe a duty to consumers to either produce “responsible” games or to ensure that sales of violent ones go stringently regulated and be made unavailable to children—and their failure to do either should be considered negligent behavior.

Thompson’s latest attempt to stymie the makers of violent games is his threat to file a lawsuit as a private attorney general in Florida that would block the release Take Two Interactive’s Grand Theft Auto IV (available this fall for the PS3 and Xbox 360) and Manhunt 2 (available this summer for the PS2, Wii, and Playstation Portable) Both games will contain extremely violent and graphic content and while they will likely be assigned a “mature” rating by the Entertainment Software Rating Board, which means that consumers are “on notice” that these games contain contain mature sexual themes, intense violence and/or strong language, Thompson contends that Take Two will not take the necessary steps to prevent children from playing them.

GTA and Manhunt 3

Thompson’s threat comes on the heels of his failed attempt last fall to secure a temporary restraining order preventing Take Two from releasing Bully for the PS2–he argued that Take Two did not take sufficient steps to ensure that the game not be purchased by minors, and at one point he filed separate lawsuits against Best Buy, Wal-Mart, Target, and GameStop to stop the game’s sales. (ironically, his efforts are thought to have increased demand in Bully, since it appeared “more controversial”).

But this time around, Take Two has decided to strike back. It has filed a lawsuit in the U.S. District Court for the Southern District of Florida against Thompson, Bully 3arguing that his repeated failed lawsuits and public threats against the company comprise a nuisance. The company claims that Thompson’s numerous lawsuits are filed to generate publicity for himself and to damage Take Two’s business reputation, rather than to succeed on the merits. Take Two hopes the court will enjoin Thompson from bringing suit on behalf of the State of Florida to enjoin the sale of its games.

Thompson’s response? He claims that Take Two has filed a strategic lawsuit against public policy (“SLAPP” lawsuit) to intimidate and silence him, in hopes that he will abandon his mission. Here is a letter he has released to the gaming public:

“Dear Gamers and Gamer Publications on the Internet and Elsewhere:

I have been praying, literally, that Take-Two and its lawyers would do something so stupid, so arrogant, so dumb, even dumber than what they have to date done, that such a misstep would enable me to destroy Take-Two. With the filing of this SLAPP lawsuit last week, my prayers are finally answered.

This lawsuit, filed in US District Court for the Southern District of Florida, is, without a doubt, the single dumbest thing I have ever seen any lawyers do in my thirty years of practicing law–while in continuous good standing to do so with The Florida Bar, I might add, the shock radio and video game industry’s efforts notwithstanding.

We will keep you updated on these video game litigations and what social psychology might say about them. Also, if you are interested in state law proposals to regulate the video game industry, see Eric Bangeman, States Wising Up? Video Game Bills Drop Like Flies, Ars Technia, 2/13/2007.

Posted in Entertainment, Law, Life | Leave a Comment »

Why Do Lawyers Acquiesce In Their Clients’ Misconduct? – Part I

Posted by Sung Hui Kim on March 20, 2007

Ann Baskins before Congress

Ann Baskins pleads the Fifth Amendment before Congress on Sept. 29, 2006.What the many recent corporate scandals (including Enron) have shown is that lawyers are often involved in the process that ultimately enables their clients to break the law. Take, for example, the recent scandal of the Hewlet-Packard spying fiasco:

“On September 28, 2006, a visibly exhausted Ann Baskins stood before a congressional committee investigating the Hewlett Packard spying scandal. Standing before the committee, Baskins, who had just resigned as general counsel, raised her right hand and swore to tell the truth. Then, on the first question, Baskins exercised her Fifth Amendment privilege against self-incrimination. While Baskins sat mute nearby, the former Chairwoman Patricia Dunn and HP CEO Mark Hurd told the committee that Baskins was to blame for the spying fiasco. They accused her of rendering bad legal advice and claimed that Baskins knew about and permitted the use of “pretexting” – using false pretenses to obtain others’ personal information from telephone companies.” [quoted from my work-in-progress, Gatekeepers Inside Out]

Of course, the story isn’t over. We do not know to what extent Ann Baskins, a respected attorney, actually “knew” that pretexting was over the line. And, of course, as a matter of criminal law, she is innocent until proven guilty. My point is not to accuse her of any legal wrongdoing.

But this scandal begs the question: how could such a capable general counsel not have prevented the pretexting? After all, there is evidence that on six separate occasions, Baskins questioned whether “pretexting” was legal. Journalistic accounts so far suggest that Baskins never pushed for a definitive answer about whether the methods used were, in fact, legal. Why not? Certainly, the red flags were there. The same kinds of questions have been posed about Mark Belnick, star litigator and former general counsel of Tyco, who sat by while the Tyco CEO Dennis Kozlowski was looting the company. (Belnick was ultimately acquitted in 2005 by a New York jury of criminal charges after five days of jury deliberation.)

I think the answer to this “puzzle” is a complicated one but one that can only be answered adequately by focusing on the entire situation of lawyers like Ann Baskins or Mark Belnick. The reality is: there are enormous psychological pressures to acquiesce – whether that means to turn the other way or to refrain from pressing the “issue” or to be prematurely satisfied by an easily available explanation (rationalization) that makes unethical/illegal conduct seem, well, not so bad. These psychological pressures arise from their roles as employees (subject to “obedience” pressures), faithful agents (subject to alignment pressures) and team players (subject to conformity pressures). I discuss these pressures in my article, The Banality of Fraud: Re-Situating the Inside Counsel as Gatekeeper, and plan to discuss them in greater detail in a later posting.

Posted in Law, Social Psychology | 8 Comments »

The Unconscious Genius of Baseball Players

Posted by The Situationist Staff on March 20, 2007

Nomar GarciaparraAs discussed by Howard Wasserman on Sports Law Blog, David Brooks of the New York Times has a fascinating column on how baseball players “depend almost exclusively on the unconscious brain to play the game and how baseball has developed drills to reinforce those unconscious responses.” Brooks describes the work of fellow Situationist Timothy Wilson in explaining the strikingly limited capacities of the human brain to process the information it absorbs, and how baseball players’ success not only reflects strength and brawn, but also extraordinary mental processing skills. Here are some excerpts from Brooks’ piece.

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One of the core messages of brain research is that most mental activity happens in the automatic or unconscious region of the brain. The unconscious mind is not a swamp of repressed memories and childhood traumas, the way Freud imagined. It’s a set of mental activities that the brain has relegated beyond awareness for efficiency’s sake, so the conscious mind can focus on other things. In his book, “Strangers to Ourselves,” Timothy Wilson of the University of Virginia notes that the brain can absorb about 11 million pieces of information a second, of which it can process about 40 consciously. The unconscious brain handles the rest.

The automatic mind generally takes care of things like muscle control. But it also does more ethereal things. It recognizes patterns and construes situations, searching for danger, opportunities or the unexpected. It also shoves certain memories, thoughts, anxieties and emotions up into consciousness.

Baseball is one of those activities that are performed mostly by the automatic mind. Professional baseball players have phenomenal automatic brains.timothy-wilson-strangers-to-ourselves.JPG

As Jeff Hawkins points out in his book “On Intelligence,” it is nearly impossible to design a computer with a robotic arm that can catch a ball. The calculations the computer has to make are too complicated to accomplish in time. Baseball players not only can do that with ease, they can hit a split-finger fastball besides.

Over the decades, the institution of baseball has figured out how to instruct the unconscious mind, to make it better at what it does. As we know the automatic brain only by the behavior it produces, so we can instruct it only by forcing it to repeat certain actions. Jeff Kent is practicing covering first after all these years because the patterns of the automatic brain have to be constantly and repetitively reinforced.

But baseball has accomplished another, more important feat. It has developed a series of habits and standards of behavior to keep the conscious mind from interfering with the automatic mind.

Baseball is one of those activities in which the harder you try, the worse you do. The more a pitcher aims the ball, the wilder he becomes. The more a batter tenses, the slower and more tentative his muscles become.

David OrtizOver the generations, baseball people have developed an infinity of tics and habits to distract and sedate the conscious mind. Managers encourage a preternaturally calm way of being — especially after failure. In the game I happened to see here on Tuesday, Detroit Tigers pitcher Nate Robertson threw poorly, but strutted off the mound as if he’d just slain Achilles. Second baseman Kevin Hooper waved pathetically at a third struck fastball, but walked back to the dugout wearing an expression of utter nonchalance.

This sort of body language helps players remain steady amid humiliation, so they’ll do better next time.

Believe me, the people involved in the sport have no theory of the human mind, but under the pressure of competition, they’ve come up with a set of practices that embody a few key truths.

First, habits and etiquette shape the brain. Or as Timothy Wilson puts it, “One of the most enduring lessons of social psychology is that behavior change often precedes changes in attitudes and feelings.”

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For more from Brooks’ excellent piece, click here.

Posted in Situationist Sports, Social Psychology | 9 Comments »

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