Legal Commentary

Since the New Year, Jon Stewart had been doing The Daily Show without his WGA-striking writers. Now that the writers are back, I have to admit, sadly, I think that his show has gone slightly downhill.

The fact is, without his union labor-pool, Stewart was a smart-aleck version of a smart-aleck. He was loose, preter-irreverent, and hilarious. More to the point, his material was better. With the writers back on the job, Stewart's material feels somewhat canned, stale, and strained - at least by comparison. Actually, I believe the writing is quite good by any objective measure. But, it is, quite clearly in my opinion, less funny.

If anything, the strike seemed to prove, that at least for some live-to-tape talk shows such as Stewart, Colbert, and Leno, that WGA talent is utterly unessential.

Strikes are supposed to convince employers, and, by extension, customers, of the necessity of union labor. Unfortunately, this strike may have done the opposite. The Hollywood writers? strike has provided a rare opportunity for the masses to judge for themselves the value that striking workers offer. In 1987, with the NFL players strike, America had that opportunity as well, and football fans decided overwhelmingly that the replacement fare was far inferior. I wonder if the audience's judgment will be different with regard to the just-ended WGA strike. It will be interesting to see what happens in the ratings when enough time has gone by for a good comparison.

This all raises a broader question. The WGA is clearly good for its members, but is the WGA is good for television viewers?

A few weeks ago, I blogged about my contention that meritocracy should serve as a guiding value premise for the law of the entertainment industry. By working to ensure stable employment for members, the WGA arguably works against an infusion of novel creativity into television. Does the WGA have an overall negative effect on TV? What does the strike tell us, if anything, about how the WGA affects comedy-talk-show writing? One conclusion we could draw is: When WGA writers are gone, freshness rushes into fill the void. And by extension, if shows were suddenly staffed with newcomer non-WGA writers, the comedy could get much funnier. In other words, if the hosts, working by themselves, did better than the writers, couldn't new non-WGA writers do even better? As a former resident of L.A., I can personally attest to the legion of extremely talented non-union comedy writers who would love to work on the likes of Stewart's show.

On the other hand, maybe the correct lesson to draw is that no one, no matter who they are, can write as well for Stewart as he writes for himself ( ... and possibly the same for other talk hosts, though I did not watch them as closely during the strike to judge whether this is plausible).

A completely different conclusion might be that when Stewart was without writers, his material wasn?t as good, but his delivery was a lot better. And maybe whatever good material he generated would have dried up soon if he continued to work without help.

Alternatively, maybe you disagree with my main premise, and you think that Stewart and other hosts sound better now that their writers are back.

Let me note that I offer my comments here with some regret. Of all the Hollywood professions, writers are my personal favorite. They are the absolute best to share a few drinks with, even if they can?t get you into the coolest parties. There is no doubt that their genius is the most undervalued in the industry. And with regard to this strike, their arguments for staking out claims on new media were well-placed. But as a legal academic, I think the questions I raise here are important questions to ask.