10 Bar Exam Rules to Learn from Duran Duran
I’ve been on a big Duran Duran kick lately, like “listening-to-Duran Duran-for-the-entire-four-plus-hours-of-my-Ohio-to-Tennessee-commute” kick.
You might have noticed that Duran Duran has been in the news and entertainment magazines lately. The band was inducted into the Rock and Rock Hall of Fame a couple of months ago. They performed at “Dick Clark’s New Year’s Rockin’ Eve with Ryan Seacrest” a couple of weeks ago. Peloton is currently showcasing an Artist Series featuring Duran Duran music in several of their classes. On a sadder note, Andy Taylor—the band’s former on-again, off-again guitarist from 1980 to 2001—recently opened up about his ongoing battle with stage 4 metastatic prostate cancer. (PSA: If you’re over 50, like I am, or know someone over 50, please get checked or encourage someone to get checked.)
Now, if you’re not familiar with the English pop-rock band, then you’re missing out. The Rock & Rock Hall of Fame probably described the band best by writing:
Duran Duran are a band of delicious dichotomies: infectious pop melodies concealing complicated musical arrangements; pioneering synthesizers combined with distorted glam rock guitars. They were new-wave outsiders who became music video stars—Tiger Beat fashion pinups who rocked arenas.
Robert Downey Jr. inducted Duran Duran into the Rock and Roll Hall of Fame, and in doing so, said:
Duran Duran invites us all to put our best days here, now and still in front of us. Cool, sophisticated fun. You know who’s got that in spades? Duran Duran. They own that space, and they have for over 40 years. Read the lyrics to “Paper Gods.” Watch the video for “Celebration.” Cry in the mirror as you lip-sync to “Ordinary World.”
As I’ve done in the past with other albums, like the Top Gun soundtrack, here’s my take on what you can learn about what’s tested on the bar exam by diving into just 10 of Duran Duran’s more recognizable songs:
This song was the theme song to the James Bond movie of the same name. “A View to a Kill” won a Golden Globe for best original song and was the only James Bond theme to reach No. 1 on the U.S. music charts.
When it comes to the bar exam, “A View to a Kill” makes me think of the plain view exception. The plain view exception is one of several exceptions to a warrantless search under the Fourth Amendment. This exception permits an officer to seize evidence of a crime without a warrant when the evidence is clearly visible. Specifically, four conditions must be satisfied for the plain view exception to apply: (i) the police officer must be legitimately on the premises, (ii) the police officer must discover contraband or evidence, fruits, or instrumentalities of crime, (iii) in plain view, and (iv) the police officer must have probable cause to believe that the item is seizable.
“Girls on Film” is about “the exploitation of fashion models, who must deal with dehumanizing shoots in a frenzied environment where they are objectified for the masses,” according to Songfacts.
When it comes to the bar exam, “Girls on Film” makes me think of potential pornography, which triggers an analysis of obscene speech. Obscene speech isn’t protected speech. Speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person: (i) appeals to the prurient interest in sex, using a contemporary community standard; (ii) is patently offensive under contemporary community standards; and (iii) lacks serious value (literary, artistic, political, or scientific), using a national, reasonable person standard. I use a couple of mnemonic devices here to help me remember this test. First, I use P-O-V to help me to recall the three prongs (Prurient interest, Offensiveness, and Values). Second, I use L-A-P-S to help me identify the different values (Literary, Artistic, Political, or Scientific)
Uh, you can look up what this means.
When it comes to the bar exam, “Hungry Like a Wolf” also reminds me of the obscenity rules (see “Girls on Film” above). But it also reminds me of wild animals. An owner is strictly liable to licensees and invitees for injuries caused by wild animals (even those kept as pets). When it comes to trespassers, an owner generally won’t be strictly liable. To recover for their injuries from a wild animal (or abnormally dangerous domestic animal), a trespasser must prove the owner’s negligence.
The video to “I Don’t Want Your Love” takes place in a courtroom filled with spectators and tabloid reporters. During the video, members of Duran Duran are “testifying” by singing the song into the court’s microphones.
When it comes to the bar exam, the tabloid reporters make me think of defamation. Remember that defamation may appear in two different situations on the bar exam—in Torts questions and in Constitutional Law questions. If the defamatory statement is about a public official or public figure or involves a matter ofpublic concern, the First Amendment requires the plaintiff to prove all the elements of tort defamation (a defamatory statement that specifically identifies the plaintiff; publication to a third party; and damage to the plaintiff’s reputation) plus falsity and some degree of fault in order to recover.
According to the liner notes to the album on which “New Religion” appears, the song is described as “a dialogue between the ego and the alter-ego,” as reflected by two conflicting voices singing on top of each other in the song’s chorus.
When it comes to the bar exam, this song makes me question what constitutes a constitutionally protected religious belief. Under First Amendment jurisprudence, a religious belief includes traditional religions but also beliefs that play a role in the life of believers similar to the role that religion plays in the life of traditional adherents. It should be noted that SCOTUS has never held an asserted religious belief to be not religious for First Amendment purposes.
According to the Duran Duran Wiki page, “Notorious” refers to the acrimonious nature of Andy Taylor’s departure. The lyric, “Who gives a damn for a flaky bandit,” was apparently a direct dig at the former guitarist.
When it comes to the bar exam, “Notorious” makes me think of evidentiary rules for character evidence. The admissibility of character evidence in criminal cases is a bit too lengthy to discuss in this post. Thus, I’ll just discuss the rules in civil cases, which are much simpler. In civil cases, character evidence is generally inadmissible—regardless of who offers the evidence—to prove how a person probably acted. When is character evidence admissible in civil cases? When character is an essential element of a claim or defense, then character evidence is admissible in civil cases. But this is rare. These civil cases are generally limited to defamation, negligent hiring, or negligent entrustment claims.
“Rio”
According to Songfacts, “Rio” contains some interesting wordplay in its lyrics:
On the VH1 show True Spin, Duran Duran explained that Rio is a metaphor for America, and the song expressed their desire to succeed there, which they did. The wordplay is interesting, as Rio is sung as if it’s a girl’s name, and the word conjures images of the popular and glamorous Brazilian city, which goes with the exotic image the band was cultivating. The lyrics clearly state, however, “from mountains in the North down to the Rio Grande,” which is the span of America. The Rio Grande river separates the US from Mexico.
When it comes to the bar exam, “Rio” makes me think of rivers. But let’s face it, while “Rio” may make me think of potential water rights questions in Real Property, those questions are rare. So “Rio”—at least its reference to spanning across the U.S., as described above—makes me also think of the Commerce Clause. The Constitution gives Congress broad power to regulate interstate commerce. If Congress hasn’t enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce under what’s called the “Dormant Commerce Clause” or the “Negative Commerce Clause.” Under the Dormant Commerce Clause, a state or local government may regulate local aspects of interstate commerce if the regulation: (i) doesn’t discriminate against out-of-state competition to benefit local economic interests, and (ii) isn’t unduly burdensome, which means that the incidental burden on interstate commerce doesn’t outweigh the legitimate local benefits produced by the regulation.
The lyrics to “Save a Prayer” are about a chance meeting between two people that turns into a one-night stand, according to the Duran Duran Wiki page.
When it comes to the bar exam, the potential consequences of a one-night stand make me think of paternity suits. Most state statutes provide that any child is the lawful child of his mother. These statutes may also provide that a child is the lawful child of his father if: (i) the parents were married after the child’s birth; (ii) the father holds the child out as his biological child; (iii) the father consents to be named on the birth certificate; (iv) the father has acknowledged paternity; of (v) there is a judicial decree establishing paternity.
“The Reflex” is about card gambling addiction, according to Songfacts. Its lyrics describe the excited rush a gambler feels.
When it comes to the bar exam, gamblers make me think of risk, which then makes me think of when risk of loss shifts from the seller to the buyer in contracts. Risk of loss rules differ depending on whether the parties intended that the goods sold would be moved by a common carrier. For noncarrier contracts, if a seller is amerchant, risk of loss shifts to the buyer when the buyer takes possession. If the seller isn’t a merchant, risk of loss shifts when the seller tenders delivery. For carrier contracts, risk of loss shifts to the buyer when the good are delivered to the shipper for shipment contracts (e.g., the contract requires the seller to ship the goods by carrier but doesn’t require the seller to deliver the goods at a particular destination). For destination contracts (e.g., the contract requires the seller to deliver the goods at a particular destination), risk of loss shifts to the buyer when the seller tenders delivery of the goods to the buyer at the destination.
Again, according to Songfacts:
This song is based on the 1971 novel of the same name by William Burroughs. In the book, packs of adolescent humanoids ravage the civilized nations of the Earth. When wholesale slaughter erupts, the battle continues underground where the survivors evolve into The Wild Boys. Duran Duran recorded the song because Russell Mulcahy, who directed their videos, bought the movie rights to the book and planned to make it into a film. The band wrote the song for the movie, which was never made.
When it comes to the bar exam, remember that intentional tort requires that the element of intent be proven. That intent can be either specific (the defendant’s purpose in acting is to bring about the consequences of his conduct) or general (the defendant knows with substantial certainty that the consequences of his conduct will result). Remember, too, that age isn’t a valid defense to an intentional tort—even for young (maybe “wild”) boys like five-year-old Brian Dailey! Under the majority view, minors (as well as incompetents) will be liable for their intentional torts. In other words, they are held to possess the requisite intent.
