Thoughts from our Founding Fathers (a prequel)

"The Founding Fathers were considered traitors by the King of England."

Justice Nahmias of the Supreme Court of Georgia reminded us of this fact last Friday at the State Bar Leadership Institute.

This statement may seem obvious to us today, considering we Americans view England as our former tyrannical government across the Atlantic.  I'm not sure how much of this reminder really sinks in as a result.  When our country today was but a few colonies run by the King, the very notion that England was unfair and needed to be removed from power (at least over us) was indeed risky and could have gotten a man hanged.  We should remember that the founding of the United States was based upon escaping oppressive government while safeguarding against it in the newly formed body.  So it should be no surprise that the Bill of Rights was crafted to limit the new government's power over the individual.

I could go on plenty about how this manifests in various amendments, but that is not the point.  We must remember that our first leaders were willing to step into the line of fire to do what they felt was right.  The purpose of Justice Nahmias' engagement last week, as well as the whole of the program, was to prepare leaders.  In order to lead, we must be willing to take the risky or unpopular position to do what is right.

I think it's important to remember that when talking about the Constitution.  Yes, our Founding Fathers were traitors to the Crown, and we should all thank them for it.

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

Thoughts from our Founding Fathers, no. 2

I have to admit that the following quote gave me fits while researching, and comes from a speech Ben Franklin wrote and presented to the Constitutional Convention in 1787.  What took me down the rabbit hole are the multiple accounts of the speech as given.  There are two main sources: the first, and considered most reliable is the speech as written in Mr. Franklin's own hand, which surfaced in James Madison's journal.  It is this source from which the below quote comes.  The second account of the events as they transpired comes from a letter written in 1825 from a William Steele, who is recounting the events as told to him by General Dayton (yep, that'd be double-hearsay, thank you very much).  As typical with hearsay, Mr. Steele's account was eventually declared unreliable as Mr. Franklin's handwritten speech surfaced.  

"All of us who were engaged in the struggle must have observed frequent instances of superintending Providence in our favor. To that kind Providence we owe this happy opportunity of consulting in peace on the means of establishing our future national felicity. And have we now forgotten that powerful friend? Or do we imagine that we no longer need His assistance? I have lived, Sir, a long time, and the longer I live, the more convincing proofs I see of this truth - that God governs in the affairs of men. And if a sparrow cannot fall to the ground without His notice, is it probable that an empire can rise without His aid?  We have been assured, Sir, in the Sacred Writings, that 'except the Lord build the House, they labor in vain that build it'." 

- Benjamin Franklin, to Colleagues at the Constitutional Convention (1787)

This quote is relevant today in the face of prayer-in-school debates, whether we should keep "In God We Trust" on our currency, and the never-ending separation of church and state arguments.  Yes, the Founders were afraid that a strong link between church and state could create Bloody Mary and Henry VIII-style oppression, but that does not mean they were atheists.  It's interesting as I ask God to help me get through my days of emotional litigation that our Founders did the same when constructing the foundation of our great nation.

Benjamin Franklin was born in 1706 in Boston, but ran away to Philadelphia when he was seventeen.  He was an author, scientist, inventor, foreign diplomat, and signed the Declaration of Independence.  You can read more about him here.  You can read about his involvement (and the debate surrounding his involvement) at the Constitutional Convention here.  And thanks again to my father-in-law, Capt. Philip Crowell, III, US Navy (retired) for this one; couldn't do it without him!

Enjoy!

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

Lip Syncing: Should it be illegal???

It's been a couple of weeks since the Inauguration, and much talk has centered around Beyonce' and her "performance" of the National Anthem.  I have been thinking about this since it occurred, but (thankfully) I've been too busy to sit down and write until now.  So before I start recording my closing arguments...

I suppose I should preface this post with a reminder that my undergraduate degree is in music, and that I performed professionally as a saxophonist before law school.  I mention this because my opinion is a bit skewed due to my background.  I'm a firm believer in live performances, and if I want to listen to a recording I will simply go through iTunes.  I hate lip syncing and think it's ridiculous.

For those that may not know what I'm talking about, lip syncing occurs when a performer pre-records his or her songs or vocal tracks and then pretends to perform them in front of a crowd.  It's probably been going on by the less talented for as long as recording and playback have been around.  Since I am a trained musician, I can always spot lip syncing immediately.  I assume performers do this because they are afraid of making a mistake at an important event.  When I was performing, there were times when I was nervous based upon the venue, but that just forced me to practice more.  Unfortunately, the practice has gained so much acceptance that even Yo-Yo Ma pre-recorded a performance because it was so cold (he plays the cello, if you don't know, and outdoor temperatures greatly affect the instrument).  Every now and then a performer embarrasses herself when the words begin and they are obviously not in a position to be singing (see Ashley Simpson, a la Saturday Night Live).

But let's move on to my question:  should it be illegal?  While I personally cannot stand lip syncing and other forms of faux performance, I am not willing to say we should throw people in jail or probation for it.  Fines?  Maybe, but only if we can also fine poor taste in dress, hair cuts, and general style faux pas.  Silly, but I would rather punish the lip syncing offenders in the courts of public opinion rather than actual courts of law (at least criminally).

But what about civil liability?  Should we be able to sue so-called performers that lip sync?  I say yes!  When I buy a ticket to see a show, I expect to witness a live performance.  That is, after all, what I paid for.  If I wanted to listen to a recording, why not just buy the album?  Is not the purchase of a ticket to a live performance not acceptance of a contract between me and the artist, whereby they agree to perform live for me?  If they don't, have they not breached the contract?  The big draw to watching live performance is the nuances only present at that particular show.  Lyrics may change (or are forgotten), guitar solos go on forever, unique instrumentations are used, etc.  It's what makes going to shows fun.

The rub is when most artists lip sync.  Usually, a performer pre-records when the event is so important that a mistake could be catastrophic to their career, and maybe the event.  Inaugurations, Super Bowls, late show performances, and the like are typical.  Artists may get out of the contract argument above simply because these main events only feature a performance as a side-show, and few people would say that they went to the Super Bowl only to watch Justin Timberlake and Janet Jackson.

This post may be meandering, but I feel strongly about it and perhaps my emotions have kept my organization at bay.  The Grateful Dead and Miles Davis never pre-recorded their performances.  Sure, some days were therefore better than others, but is that not what brought their audiences closer to them?  I think what really bugs me is that these performers pretend they are singing, rather than just owning up to having a recording do it.  It's an attempt to deceive, and when I catch wind of someone lip syncing, I think less of them.  If an artist is too nervous to perform, too out of practice, or just not very good outside the studio, then just don't perform.  And if a recording is going to be played, just hit 'play.'  No one needs the performance pantomimed.  Ugh.

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.

You can agree to just about anything...

I can still hear Prof. Lynch, my contracts professor at John Marshall, utter these words over and over again.  When studying contracts, we typically take a look at what happens in the court system when a particular term is left out or vague.  Prof. Lynch was always quick to point out that (insert situation here) would be quite different had the parties agreed to that particular term.  So a question like "what does the contract say" becomes paramount.  And, a contract can be simply your agreement to be bound to a set of rules, which is apparently exactly what a letter of intent it.

Tomorrow is National Signing Day for high school students being recruited by colleges.  You've seen the (silly) tv broadcasts where multiple hats sit in front of a player and he puts one on to show where he's going to be playing in the fall.  Those students then fax their "letter of intent" to that school and coaches pat themselves on the back.

Knowing from contracts that minors cannot be bound by their contracts, I have always wondered what teeth these letters actually have against the recruits.  After all, you always hear a story or two about a player changing his mind late in the game; what's the point in this signing day business, then?

I did a little digging, and found this great write-up on Letters of Intent here.  While not a lengthy article, the author does answer my questions about enforcement.  Basically, the letter of intent business is sort of a treaty between NCAA schools (minus service academies and ivy league) that they won't poach each other's recruits after the final signing day.  If the student backs out on their letter, schools further agree to certain provisions to "punish" the student.

Interesting to me, since the big hoopla is really little more than a protection to recruits from further harassment by Big College.

JD

John D. Duncan is president of J.D. Duncan, PC, founding partner of Prater, Duncan & Craig, LLC in Newnan, Georgia, and is Esquire by Day.  You can find him at www.jdduncanlaw.com, or follow him on twitter and Facebook.