Ledwon on "Breaking Bad" Contracts: Bargaining For Masculinity in Popular Culture @StThomasLaw

Lenora Ledwon, St. Thomas University School of Law, has published 'Breaking Bad' Contracts: Bargaining for Masculinity in Popular Culture at 23 William & Mary Journal of Women & the Law 397 (2017). Here is the abstract.

This Article examines the award-winning television show, Breaking Bad, to illustrate how the idea of a contract in popular culture can become inflected with a style of retrograde masculinity. Deals in Breaking Bad take place in the classic contract imaginary, which resembles the classic Western shootout: two antagonists face each other down in a duel. The show interrogates the frontier thesis, with its links to the American Dream and dangerous masculinities, through the ruthless contracts of Walter White. "I celebrate myself, and sing myself, And what I assume you shall assume, For every atom belonging to me as good belongs to you." -Walt Whitman, Song of Myself'

Download the article from SSRN at the link.

Koehlert-Page on Breading Bad Facts: How Intriguing Contradictions in Fiction Can Teach Lawyers to Re-Envision Harmful Evidence

Cathren Koehlert-Page, Barry University School of Law, is publishing Breaking Bad Facts: How Intriguing Contradictions in Fiction Can Teach Lawyers to Re-Envision Harmful Evidence in volume 13 of Legal Communication & Rhetoric (JAWLD) (2016). Here is the abstract.

Walter White is the “nerdiest old dude” that Jesse Pinkman knows. His students ignore him, laugh at him, and make fun of him at his after school job at the car wash. His home décor and personal fashion could best be described as New American Pathetic. And yet by the end of the hit television series, Breaking Bad, White is a feared multi-million dollar drug lord known as Heisenberg. He has killed multiple foes. He has lied. He built an empire, and, despite being chased by the DEA, the cartels, and various other murdering sociopaths, he has still left money for his family. The contradiction seems enormous, and, yet, it draws us in. It creates curiosity and somehow not only remains believable but actually breathes a more realistic-seeming life into this fiction character. By viewing contradictions through this storytelling lens, lawyers faced with seemingly contradictory facts in a trial or an appellate case can craft a more realistic and ethical narrative. In so doing, they can create greater logical cohesion and underscore their theory of the case. Previous scholarship on harmful evidence focuses on the effects of disclosing harmful facts or focuses on techniques regarding disclosure. This article takes those ideas to the next level by re-envisioning this seemingly contradictory evidence to see it as an integral part of a coherent whole. This concept is new in legal skills but has roots in legal skills precedent. This article explores fiction works like Breaking Bad and the book Room and shows how aspects of those works appear in actual cases, such as the United States Supreme Court prison-overcrowding case, Brown v. Plata, the exoneration of Eddie Joe Lloyd, or the battered spouse case, Weiand v. State. In the end, if the client’s ultimate assertion is true, then the attorney cannot merely break those “bad” facts. The attorney can show those facts in a new light so that they are no longer harmful and are actually a part of the client’s story. This article aids judges grappling with story’s role in law or with issues in the examples, such as prison overcrowding or wrongful convictions, lawyers seeking to overcome harmful evidence, applied legal storytelling scholars, skills professors, law students, and even fiction writers or literary criticism scholars.

Download the article from SSRN at the link.

Sarma on Walter White, Legal Narrative, and the Death Penalty

Bidiah Sarma, University of California (Berkeley) School of Law and the Justice Center's Capital Appeals Project, is publishing Why We Would Spare Walter White: Breaking Bad and the True Power of Mitigation in volume 45 of the New Mexico Law Review (2015). Here is the abstract.

What if Walter White had been captured by the federal authorities? Considering that he committed the murders of many individuals and orchestrated many more in the course of building and running his global meth trade, the prosecution would be able to seek the ultimate punishment against him. But, would a jury give him the death penalty? Walt’s gripping journey stirred within viewers a range of complex emotions, but even those revolted by his actions must concede that it is extraordinarily difficult to envision a random collection of twelve people unanimously agreeing that he deserves a state-sanctioned execution. Indeed, it seems that many of us actually rooted for Walt throughout the series, even when we struggled to understand why. This Essay explores the answer to the question of why we would spare Walter White from the death penalty. Its exploration underscores the critical importance of “mitigation” — a capacious term that refers to evidence introduced by capital defense lawyers to persuade jurors to hand down something less harsh than a death sentence. Breaking Bad, through its masterful construction of its core narrative, situated us to empathize with Walt, to view him as someone we could understand, to feel about him the way we might feel about a friend or colleague or neighbor. Whether we argued vociferously in online forums that his actions were nearly always justified or simply watched with a suppressed but distinct hope that he might emerge as a partially redeemed man, many of us never condemned Walt. We did not want him to die an undignified death at someone else’s hands. In fact, we were relieved that death came to him on his own terms. And, if he had been captured, we would not have sent him to the death chamber. Knowing Walt — understanding his “mitigation” — bent us towards mercy. To start, this Essay explains how a capital trial unfolds and sets out the factors that jurors must take into account when they decide whether to choose death for a convicted capital defendant. After establishing the basic framework for the death-determination in Part I, this Essay focuses on Walter White’s hypothetical penalty phase in Part II. It describes both the “aggravating” evidence the prosecution would use to persuade jurors that death is the appropriate punishment and the “mitigating” evidence the defense would use to persuade jurors that a sentence less than death is appropriate. Part II concludes with an explanation of why a jury likely would not sentence Walter White to die. Part III steps back to identify distinct conclusions that we could draw from viewers’ prevailing willingness to ride with Walt until the end. It concludes that it would be unwise to dismiss Walt as a fictitious outlier. Rather than ask ourselves what makes Walt’s particular case for mercy special, we should ask ourselves how the show managed to make him so real. Breaking Bad’s storytelling proved so powerful that the show’s writers were themselves amazed that viewers continued to stand by Walt’s side through it all. If we would spare Walter White, surely we would spare many others facing capital punishment. But to get there, we need to do more than hear that they have struggles and triumphs of their own; we need to walk with them on their journeys. We must feel like we did when the last episode of Breaking Bad began — wondering exactly how things will end, but unwilling to bring that end by our hands.

Download the article from SSRN at the link.

Don Draper, Walter White, and Donald Trump

Thomas Batten explains the Donald Trump phenomenon in terms of antiheroes: Don Draper, Walter White, Tyrion Lannister, and Tony Soprano here (for the Guardian). He says in part:

Think about all they have in common – Tyrion’s cynicism and cunning, Don’s scorn for weakness, Tony’s rage, Walter White’s limitless ego. They’re all scoundrels who move through the world with an inordinate amount of swagger, and Americans, going back to 1773, love scoundrels with swagger. We love people who challenge authority and convention and get away with it. Thursday night, when Chris Wallace asked Trump if he thought a man who has declared bankruptcy multiple times was well suited to running the economy of an entire country, Trump’s response was to basically blow a raspberry and brag that he simply exploited the law.

Breaking It Bad In a Law Review

In the New Mexico Law Review, Spring 2015:

New Mexico Law Review Current Issue

Spring 2015, Vol. 45, No. 2

Front Matter

• INTRODUCTION ix

Professional Articles

• Breaking Bad in the Classroom
• Max Minzner 397
• Why We Would Spare Walter White: Breaking Bad and the True Power of Mitigation
• Bidish J. Sarma 429
• "Better Call Saul" If You Want Discoverable Communications: The Misrepresentation of the Attorney-Client Privilege on Breaking Bad
• Armen Adzhemyan & Susan M. Marcella 477
• The Good and (Breaking) Bad of Deceptive Police Practices
• Elizabeth N. Jones 523
• Stuck Between a Rock and a Meth Cooking Husband: What Breaking Bad’s Skyler White Teaches Us About How the War on Drugs and Public Antipathy Constrain Women of Circumstance’s Choices
• Holly Jeanine Boux & Courtenay W. Daum 567
• Breaking BATNAS: Negotiation Lessons From Walter White
• Jennifer W. Reynolds 611
• The Political Geography of Plea Bargaining in Federal Death Penalty Cases
• Greg Goelzhauser 641
• Don’t Bake––Litigate! A Practitioner’s Guide on How Walter White Should Have Protected His Interests in Gray Matter, and His Litigation Options for Building an “Empire Business” Through the Courts, Not the Cartel
• Michael C. Mims 673

Discussion here from the Wall Street Journal.

Using Breaking Bad In the Law School Classroom

Max Minzner, University of New Mexico School of Law, has published Breaking Bad in the Classroom in volume 45 New Mexico Law Review (2015). Here is the abstract.

Breaking Bad is often described as the transformation of Walter White — Mr. Chips becomes Scarface. Equally significant, though, are the journeys of Hank Schrader, his DEA pursuer, and Hank’s colleagues. The show is a study of law enforcement investigation in action. As a result, Breaking Bad can serve as a tool of pedagogy in criminal procedure.

This Essay seeks to serve two ends. First, it provides a map for the use of the Breaking Bad series in the core constitutional criminal procedure course focusing on the limits on police investigation arising from the Fourth and Fifth Amendments. Video is a powerful mechanism for presenting hypotheticals to students. Recent work on other shows such as The Wire has recognized the value of television as an alternative pedagogical technique in the law school curriculum. Breaking Bad deserves to take its place as a teaching aid in a criminal procedure classroom. The first part of this Essay identifies usable scenes for both faculty and students, and provides a preliminary analysis of the doctrine.

The second goal of this Essay is to expand the focus of the traditional course beyond the United States Constitution. Breaking Bad is more than a show about cops and criminals. It is a show about New Mexico. As a result, for those of us training New Mexico’s future prosecutors and defense lawyers, it provides a mechanism to introduce students to state criminal procedure. As is true in many states, the New Mexico Constitution contains parallel protections to the Fourth and Fifth Amendments that have been interpreted more broadly than their restrictive federal counterparts. This Essay is a call to law school faculty to incorporate state constitutions into the criminal procedure class. Because criminal law is fundamentally state law, these are the provisions our students will implement in practice. As a result, they deserve significant time in the criminal procedure course.

As legal education changes, law school faculty members teaching doctrinal classes are increasingly called on to make traditional law school courses more practical. The central goal of these efforts is to make our graduates more practice-ready and to increase the realism of legal education. The constitutional criminal procedure course is perhaps the best place to start. The core of the course is practice-oriented and will be implemented by our graduates as soon as they begin a career in criminal law. Breaking Bad is one mechanism for faculty members to use. In this way, the use of fiction can make criminal procedure more realistic.

Download the article from SSRN at the link.

While the idea (pedagogically) has been around for a while (see for example my (very) old piece Columbo Goes To Law School: Or, Some Thoughts On the Uses of Television in the Teaching of Law, 13 Loy. L. A. Ent. L.J. 499 (1993)), Prof. Minzner's piece is interesting because it focuses attention on New Mexico state law and on state constitutions.

Walter White, Negotiator

Jennifer W. Reynolds, University of Oregon School of Law, is publishing Breaking BATNAs: Negotiation Lessons from Walter White in the New Mexico Law Review. Here is the abstract. 

Walter White could teach us many things: how to read the periodic table; how to destroy a tub with hydrofluoric acid; how to build a battery; how to make poison out of castor beans; how to build a bomb under a wheelchair; how to use the remote control of the car to operate a machine gun; and how to coordinate multiple assassinations of prison informants within thirty seconds of one another. But these are niche skills at best. Is there anything useful we can learn from Walter White?

As it turns out, Walter White can also teach us how to negotiate — or, to put it more precisely, watching Walter White negotiate in Breaking Bad helps us think more clearly about what we are doing when we negotiate. For the student of negotiation, Breaking Bad is an absolute treasure trove, producing an incredibly complex and varied array of bargaining parties and negotiated transactions, week after week. What’s so fascinating about these transactions is that they draw on familiar, foundational negotiation concepts in the service of less familiar, usually illicit ends. Put another way, when we watch Walter White negotiate, we watch a mega-criminal anti-hero implement the same “value-neutral” strategies that we teach lawyers and businesspeople. Learning to negotiate from Walter White, therefore, allows us to engage in an analytical exercise that explores the conventional wisdom around negotiation in a fresh, modern context, while implicating more critical conversations around value neutrality and other normative concerns in negotiation theory and practice.
Breaking Bad ran for five seasons. In this article, I have chosen five negotiations, one from each season, each featuring Walter White. For these five negotiations, I provide close readings that show how the negotiations demonstrate and/or disrupt foundational negotiation concepts or skills. I then suggest some possible takeaways for negotiators and analysts. The article concludes with a brief thought about ethical implications in negotiation theory and practice.

Download the article from SSRN at the link. 

See Walter Run

Scott Shimick, SUNY, Geneseo, is publishing Heisenberg's Uncertainty: An Analysis of Criminal Tax Pretextual Prosecutions in the Context of Breaking Bad's Notorious Anti-Hero, in the Tulsa Law Review. Here is the abstract. 

Commentators have roundly criticized pretextual prosecutions, such as prosecuting Al Capone for tax evasion rather than bootlegging, arguing that the government should minimize the use of pretextual prosecutions. However, pretextual prosecutions serve as a valuable tool for law enforcement.
In Breaking Bad, Walter White becomes a violent criminal who produces and sells narcotics. Throughout the series, he is very careful to conceal or destroy any evidence linking him to the violence and drug trafficking. However, as the bootleggers and gangsters of the Prohibition-era learned, the government holds the trump card, criminal tax prosecution. By charging drug traffickers with criminal tax fraud, the government can imprison dangerous criminals without having to prove beyond a reasonable doubt that the drug traffickers actually produced and sold narcotics. This article examines criminal tax fraud statutes and methods of proof, analyzing these statutes and methods in the context of whether Walter White should have fled from prosecution. Through this analysis, this article demonstrates the value of pretextual criminal tax fraud prosecutions.

Download the article from SSRN at the link. 

Criminal, Teacher, Businessman

From the July 28th New York Times, A. O. Scott on the true nature  of "Breaking Bad"'s Walter White, and the intersection of his career path with recent events.