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Friday, July 29, 2016

Fred Flintstone, World Records, and Rules With Shifting References

While the rest of the country was watching the Democratic National Convention yesterday, my attention was drawn to a far more dramatic series of events: an ongoing set of videos in which contenders attempt to seize the world record for the fastest drawing of Fred Flintstone.

This article at Cartoon Brew set this whole thing off. The article featured this video by Myron Smith in which he claimed to hold the world record for the fastest drawing of Fred Flintstone:

This prompted an enthusiastic response from Lev Cantoral, a former classmate and mock trial teammate of mine, who claimed to beat Smith's record in nearly half the time:

Which, in turn, prompted this awful response from Wyatt Duncan:

And this cynical, yet hopeful, response from Nick Maida:

Frankly, I don't know why anybody was watching the Democratic National Convention while this was happening. For my German-speaking readers, I think that part of this saga is covered here as well.

But this is a law blog, or at least, that's what I keep telling people, so what does this have to do with laws -- or rules of any kind? In this post, I will explore an initial question people may have: are these videos and purported records "official" in any way? Next, I will explore how these videos and the shifting quality of the drawings in them illustrate a criticism of viewing laws or constitutions as living documents with flexible frames of reference.

All of this Fred Flintstone madness made me wonder whether any of these videos are "official" world records of any kind. After a bit of searching, it appears to me that to be an "official" world record, the record needs to be sanctioned by some sort of organization. The most popular organization to do so is Guinness World Records.

Does Guinness recognize a record for fastest drawing of Fred Flintstone? To save you, dear reader, the time, I signed up for a Guinness World Records account under the guise of seeking to establish a new individual record. Once my account was established, I conducted a search of "Fred Flintstone" (both with and without quotes) and was unable to find a category of record for drawing the character. There was a form I could fill out to request a new category of record, but I declined to make this request in light of my relatively slow and shoddy drawing abilities.

As far as Guinness is concerned, there does not appear to be an existing record category for fastest drawing of Fred Flintstone. Sorry Wyatt. In theory, he, Lev, or I could put in an application and hope that the independent group of powers-that-be decide that hasty Fred Flintstone drawings are deserving of recognition. But as far as I know, nobody has done this yet.

So the contest isn't official by Guinness standards, It is, however, governed by rules of the people who wrote the initial article. The fine people at Cartoon Brew laid out this set of rules for those wishing to obtain recognition for a world record:
  • must use a blank piece of paper
  • must show paper to the camera during the attempt
  • must draw Fred’s head and upper torso
  • must follow form of current world record holder
  • must provide video evidence
This is the legal landscape that Cartoon Brew created for the Fred Flintstone contest. Incidentally, these rules, and their operation as shown in the videos above, illustrate a problem with views of statutes or constitutions as living, evolving documents. While an evolving view may permit a law or constitution to adapt with changing technology, traditions, and social realities, allowing interpretation to become too depending on a shifting reference point may lead to the deterioration of the law's interpretation.

The "must follow form of current world record holder" rule illustrates this trend toward deterioration, as evidenced by Wyatt Duncan's attempt to beat Lev Cantoral's record. Cantoral's drawing was good -- should I have been presented with the finished product, I would have thought that it was a drawing of Fred Flintstone. Duncan's, on the other hand, was not.

But Duncan appeared to generate his abomination by relying on the template that Cantoral set. Duncan, accordingly, appears to have followed the rule that he follow the form of the current world record holder. If Duncan became the world record holder as a result, does this mean that a future attempt by Cantoral needs to follow the template of Duncan's poorly-rendered, eyebrow-less, armless horror of a Fred Flintstone?

The wording of Cartoon Brew's rules seem to suggest so, as the only reference point for the "form" of Fred Flintstone is that which was previously drawn. There is no mention of quality or standards (other than the vague, requirement that Fred's head and torso be shown), and, most disturbingly, there is no appointment of an outside law blog author as a third-party judge who can independently determine whether a drawing rises to a level of quality to be deemed a true representation of Fred Flintstone.

Accordingly, under the system Cartoon Brew created, this contest is destined to devolve into a series of shoddier and shoddier attempts -- a consequence that Maida readily acknowledged by referring to the drawings as "dumb little doodles." The legal system Cartoon Brew created has a dramatically-shifting frame of reference, which leads its rules into eventual meaninglessness.

How far removed is the Fred Flintstone contest from rules and laws based on what a "reasonable" person would do or expect? And if such laws are interpreted based on changing technology, traditions, and practices, will these laws break down in a similar fashion?  Will "reasonable" expectations of privacy under the Katz test for Fourth Amendment protections deteriorate in a world where developing technology and a vast increase in the sharing of information lead to the potential elimination of any sense of privacy? Does widespread distribution and use of infrared technology render Kyllo's prohibition on police use of the technology meaningless? Is the privacy of everything I type into an email or calendar reminder that is run by third party internet provider or website forfeit under Smith's third party doctrine?

As contestants continue to draw Fred Flintstone, under the overly flexible rules, the drawings will likely deteriorate until the world record holder's product is nothing more than a series of squiggles and blogs.  In the world of law, courts and precedent may serve as a third party adjudicator for what is reasonable. But if the definition of reasonableness is tied to social expectations, changing realities will necessitate a change in courts' rulings, lest they risk a loss of credibility. Precedent, grounded in reasoning that is subject to change, will ultimately lose its authority. This change may not happen in a day, but the shifting standards by which the laws are defined illustrate that laws and rules with flexible reference points are subject to change -- and that this change may not be for the better.

In the world of Fred Flintstone, I suspect that Lev Cantoral will muster the skill and speed necessary to bring the standards of these drawing back to something recognizable. One can only hope that judges and legislators in the legal world are able to fulfill their analogous role.

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