Go Saints!

No self-respecting Browns fan could root for a team that fled the city it belongs to in the middle of the night. And no self-respecting Browns fan could help but feel the Saints fans are among the few who can appreciate our loyalty.

Arlo Guthrie: City of New Orleans

The South Butt Answer to the North Face

For a brilliant combination of technical perfection, persuasion, and humor of a sort I’ve never before seen in an answer to a complaint, you’ve got to see the answer filed by South Butt to the complaint filed by North Face alleging that South Butt’s name and its slogan, “Never Stop Relaxing,” infringe North Face’s trademarks in its name and its own slogan, “Never Stop Exploring.” I will be forever grateful to techdirt for bringing this document to my attention.
The South Butt Answer to the North Face

Archers Daniel Midland abuses copyright law to censor criticism — corporations have the right to free speech, but not the people who criticize them?

Some corporations apparently believe in free speech for themselves but not for individuals. The first video below is a deadly dull piece of propagandistic pap in which Patricia A. Woertz, Chairman, President and CEO of Archer Daniels Midland (ADM), USA drones on (someone get her better training for dealing with the media!) about ADM’s profound importance to feeding the world. The piece was produced in advance of the recent Annual Meeting of the World Economic Forum in Davos, Switzerland.

ADM has, top it mildly, been the subject of considerable ire, criticism, and even criminal prosecution for price fixing (the subject of Matt Damon’s recent film The Informant and Fair Fight in the Marketplace, an excerpt of which appears below’s Woertz’s blathering), political corruption, destruction of the rainforests, and the forced labor of children.

A couple of days ago I posted on my Facebook page what I thought was a hilarious edit of the Woertz video in which some of her original words were retained and many were dubbed over to make it appear as if she were speaking openly on behalf of an evil multinational bent on the gross and horrific exploitation of the world and especially of multinational food markets. I thought it was hilarious piece of political critique. No one could have mistaken it as an “official” ADM production, but plainly it hit a nerve at ADM.

Today I noticed that when I click on the video on my Facebook profile a message appears that it is “no longer available due to a copyright claim by Archers Daniel Midland Company” and that if I click through to YouTube there’s no page for the video at all, not even a page with the same empty video box and takedown message.

This is outright copyright abuse. Criticism is fair use. When anyone asks whether in fact fair use is grounded in the Constitution’s guarantee of free speech, all you need is to think of a situation like this — one can appropriate copyrighted works to criticize and parody the copyright holder. And to use the copyright laws to silence that critique has nothing to do with protecting intellectual property and the rights of a creator to profit from his, her, or its creation: it’s unconstitutional censorship! (Peter Bouchard wrote a good summary yesterday on ” The Battle against Bogus Takedowns, a topic I’ve touched on in the past.”

Mark Twain on invention

It takes a thousand men to invent a telegraph, or a steam engine, or a phonograph, or a photograph, or a telephone, or any other Important thing–and the last man gets the credit and we forget the others. He added his little mite–that is all he did.

- letter to Anne Macy. Reprinted in Anne Sullivan Macy, The Story Behind Helen Keller (Garden City, N.Y.: Doubleday, Doran, and Co., 1933), p.162.

Trying Proposition 8 as teachable moment

Margaret Talbot notes that a trial can be a terrific method of educating the public on controversial issues. In particular, she focuses on Perry v. Schwarzenegger, the case in which the constitutionality of California’s Proposition 8, overturning the state’s gay marriage law, is being challenged. Talbot has been blogging about the trial throughout the 3 weeks it has been going on. Her latest post points out that trials, in subjecting witnesses to cross examination, permits scrutiny of controversial views that other forums don’t ever provide. As David Boies puts it “The crucible of cross examination forces the witness to confront the other side; they can’t fall back on bumper sticker slogans like ‘marriage is between a man and a woman.’ ”

Talbot compares the educational value of Perry to that of the trial in Kitzmiller v. Dover Area School District, the successful legal challenge against a public school district’s requirement that “intelligent design” be taught as an alternative to evolution as an explanation of the origin of life:

In many ways [the trial in Perry] reminded me of another culture-war trial that I covered, in 2005, one that presented a similar opportunity for intellectually engaging with the arguments and research that usually remain submerged beneath a politicized controversy. That trial was to decide whether intelligent design could be part of the curriculum in a Pennsylvania school district, and its expert testimony covered everything from the fossil record of obscure dinosaurs to Darwin’s own religious beliefs to the theoretical underpinnings of the separation of church and state.

It really is unfortunate the Supreme Court ruled that Perry could not be broadcast via the internet. I very much would like to have seen a witness explain exactly how it is that gay marriage undermines straight marriage. I’ve genuinely tried to understand the argument from some very intelligent people who think that gay marriage does indeed undermine straight marriage, but, I’ll confess, my mind has been unable to get itself around the argument.

We know the price of everything and the value of nothing.

A couple of weeks ago I quoted from Tony Judt’s critique of free market ideology. Raj Patel, in “How Free Market Delusions Destroyed the Economy,” goes into considerable depth about the stupidity of our faith in markets, but this brief point makes clear the wisdom underlying the entire article:

There is a discrepancy between the price of something and its value, one that economists cannot fix, because it’s a problem inherent to the very idea of profit-driven prices. This gap is something about which we’ve got an uneasy and uncomfortable intuition. The uncertainty about prices is what makes the MasterCard ads amusing. You know how it goes — green fees: $240; lessons: $50; golf club: $110; having fun: priceless. The deeper joke, though, is this: The price of something doesn’t measure its value at all.

The music industry, book publishing, and now Lexis and Westlaw?

Our technological revolution is taking down the music industry as its operated for the last 80 years or so, the book industry as its operated for the last 150 years or so, and now there are plenty of people who think that internet in general and Google Scholar in particular will take down the online legal research regime that has only existed since a couple of years before I started law school in 1981 — Stephen E. Arnold writes:

What is the financial outlook for the LexisNexis-type and Westlaw-type firms? Short term there won’t be much change. Over time, life gets tougher. I do quite a bit of work in online information, and I am not sure these outfits can adapt to the Google’s legal push.

Tom Waits: Jockey Full of Bourbon/Down by Law opening

Belle and Sebastian: Legal Man

Steven Colbert on Citizens United and Corporations as People

Chief Justice Roberts has no respect for precedent that doesn’t suit his purposes.

One of the less noticed parts of last week’s Citizens United decision by the Supreme Court overturning precedent that had supported over 100 years of congressional restrictions on corporate campaign contributions was precisely the question of the strength of precedent. During his confirmation hearings, prospective Chief Justice Roberts was questioned intensely on the question of his respect for precedent, particularly with respect to Roe v. Wade. In keeping with the image he plainly intended to project of a true conservative, a non-activist who respects existing institutions, Roberts emphasized his respect for precedent.

Thus, it should not be particularly surprising that Roberts wrote a separate concurring opinion in Citizen’s United to supplement his support of Justice Kennedy’s majority opinion. Roberts’ concurrence focused on the need to follow Court precedent — or, rather, the need to depart from precedent in this particular case.

Roberts’ concurrence should leave people convinced he would overturn Roe v. Wade and that his persona as a non-activist “umpire” who merely calls balls and strikes is a fraud. First, Roberts wrote, upholding precedent “is not an end in itself. It is instead ‘the means by which we ensure that the law will not merelychange erratically, but will develop in a principled and intelligible fashion.’”

So why would Roberts depart from precedent? First, if he thinks it’s wrong: “[I]f the precedent under consideration itself departed from the Court’s jurisprudence, returning to the ‘ “intrinsically sounder” doctrine established in priorcases’ may ‘better serv[e] the values of stare decisis than would following [the] more recently decided case inconsistent with the decisions that came before it.’”

Merely overturning precedent because a judge thinks it’s wrong, of course, does away entirely with what court’s call “stare decisis,” the rule that compels them to follow precedent (except when they don’t). If all that mattered was a judge’s determination of what is right, then there would be no need for stare decisis — a judge will always uphold precedent he or she believes is right.

So Roberts has to come up with something better. What does he come up with? To me it’s plain: precedent ought to be overturned if its justification is difficult, if using it to decide future cases is difficult, and if its original justification is open to question:

[I]f adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence inrelated areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new anddifferent justifications to shore up the original mistake.

Justice Blackmun’s opinion in Roe v. Wade has been under attack by both supporters of the right to choose whether or not to carry a pregnancy to term and those who oppose the right to choose since the day it was issued in 1973. And in fact, our courts should and do uphold precedent if there is any legitimate justification to uphold — that’s a central truth about legal interpretation (and one law students have a very difficult time gaining an understanding of). But Justice Roberts and his allies on the Court now have authority to cite as support for overturning Roe v. Wade because its original justification may not gain widespread support — this opinion of in Citizen’s United.

Finally, Roe v. Wade fits that other justification Roberts advances for overturning precedent —  it is “hotly contested,” and no doubt he and his allies would argue it therefore “cannot reliably function as a basis for decision in future cases.”

One thing I do know — Roberts has no respect for precedent that doesn’t suit his purposes.

If a corporation is a person, why is an animal no more than a chair?

In light of the decision by the Supreme Court the other day in Citizens United regarding the rights of corporations to make campaign contributions without restriction, I felt compelled to republish a post from early last year:

Stephen M. Wise discusses the ways society shapes the development of the law in connection with the rising awareness that animals are not merely “things”:

Is it up to society to force a change in the law? Or will the law change society?

The law both leads and follows society. The legal system changes through the decision of judges or by legislatures enacting statutes. You saw this, for example, in the anti-slavery amendments to the U.S. Constitution in the 19th century and the numerous civil rights statutes of the 20th century. But the way the law changes and the way society changes are connected. People who try to change the law also depend upon changes in societal values, as well as upon scientific discoveries. In recognition of this, Rattling the Cage is crammed with reports about scientific discoveries on the nature of the cognition of chimpanzees and bonobos of the last 20 or 30 years. These discoveries form the springboard from which I can argue for their rights and personhood.

How do you think our view of animals will develop in the next 20 years?

It is going to develop in a complex way. First, a hierarchy of nonhuman animals will continue. Though nonhuman animals are considered legal things today, society does not view all nonhuman animals in the same way. Some we clearly value more than others. Even though chimpanzees don’t have any legal rights, we no longer euthanize them after they are no longer useful in medical experiments, as we do, say, to white mice. This fact both results from and drives the coming legal personhood of Great Apes. We’re beginning to see this not only in the U.S., but throughout the West. Westerners are also increasingly valuing their companion animals and I see increasing protection for them. The animals whom we thoughtlessly consume for food are being subjected to worse and worse conditions in the U.S. But an opposite trend is rising in [parts of] Europe. I think we will see the European trend expand even as factory farming in the U.S. increases. However, within the next 10 years, the American factory farming industry is going to learn how it has greatly overstepped and miscalculated just how much abuse of nonhuman animals used for food people are willing to accept. Stir in the environmental degradation that is its inevitable consort and there is going to be a backlash that will drive factory farming in the U.S. in the direction that Europe has taken and will, perhaps, drive at least some of it out of business.

True innovation in health care: no-fault insurance for bad medical outcomes.

We would make genuine and profound progress in “fixing” our health care system if we replaced the existing malpractice system with (1) no-fault insurance to compensate patients for the long-term medical and personal costs of bad medical outcomes and (2) an effective mechanism by which the medical profession policed the quality of the care provided by its members.

One political war that never seems to wane is over the medical malpractice system. On the one hand there are the doctors, the insurance companies, and right-wingers screaming that it is medical malpractice that is bankrupting us; on the other, there are the malpractice lawyers and the rest of us who want protection against the risk of suffering unexpectedly from medical treatment.

The critique of the malpractice system has a lot of validity — it’s a lottery in which those patients who have gone to the trouble of hiring lawyers under circumstances smelling sufficiently of medical negligence make out well and the rest of those injured by bad medical outcomes are left with nothing. As a result, too, doctors practice defensive medicine, driving up medical costs for all of us.

But that’s not the entire story. Our health insurance system is a failure, and patients who suffer bad medical outcomes often won’t have coverage sufficient to provide them the care required by the bad outcomes. The only alternative is to sue for malpractice, but the premise of malpractice is that there is no recovery unless the patient is able to prove the doctor was negligent.

Is it any wonder, then, that in a close case, given the choice between, on the one hand, compensating a badly injured patient from with money provided by an insurance company and, on the other, declaring the doctor to be without fault, a jury of human beings will tend to do the merciful thing and find the doctor acted negligently?

Doctors, of course, hate that question. They look at malpractice cases as judgments on their talents, not as tests of mercy. A jury that finds a doctor liable for malpractice has, in the doctor’s eyes, found the doctor to be a bad doctor. To the doctor on trial, The patient’s injuries –as opposed to the doctor’s efforts — are irrelevant.

The dilemma is obvious. First, bad medical outcomes are inevitable regardless of the adequacy of care. As a result, bad medical outcomes are risks we all face. Second, our existing insurance scheme does not spread this risk — rather, those who suffer bad medical outcomes and are not compensated by the malpractice system themselves bear all the costs of that risk.

Wouldn’t we be better off if everyone who suffered a bad medical outcome was compensated for the costs that arose out of that bad medical outcome regardless of the quality of the medical care? No one would be over-compensated, everyone would be fairly compensated, and the abilities of doctors wouldn’t be judged by juries of lay people who are motivated to disregard good judgment regarding those abilities by an entirely understandable and praiseworthy sense of human sympathy.

Such a scheme does raise one problem that the critics of the malpractice system also ignore — we really do enjoy a remarkably high standard of care in this country precisely because of the malpractice system. Doctors have never gone to the trouble of instituting an effective means of policing the quality of medical practice. To some degree they haven’t needed to do so because the risks posed by the malpractice system have forced insurance companies to take on that role. To replace the malpractice system with a no-fault insurance system, therefore, would require some genuine quality control imposed by the medical profession itself.

But if we simply gut the malpractice system and ignore the costs of bad medical outcomes and the need for some genuinely effective means of quality control, we would instead have the worst of all worlds.

Bob Dylan: Hurricane

Corporations = individuals? Confusions in economic theory and First Amendment jurisprudence

Metaphors are tricky things. Corporations are “persons” under the law in many respects, just as you and I are. And we treat corporations as rational individuals in the market. These figurative equations of legal fictions with human beings certainly have their utility, but they easily can be pushed too far. Individuals at AIG were making individual fortunes based on the income they were bringing into AIG for selling credit default swaps. Those individuals were making and would retain those fortunes even if, as turned out to be the case, AIG might not have sufficient funds to pay off the obligations those credit default swaps imposed on AIG. In other words, if one treated AIG as a rational person, one would suppose AIG would never expose itself to a real risk of obligating itself to pay more than it had in reserve. But AIG is merely a corporation, and the individuals actually making the decisions on behalf of AIG had every incentive to get what they could, subject AIG to irrational risk, and be able to walk away with their tens of millions of dollars.

And now the Supreme Court has overturned over 100 years of precedent permitting limits on corporate contributions to political campaigns because such limits constrained free speech and, according to the truism announced by Justice Kennedy’s majority opinion, ”Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” But corporations don’t make decisions about how to spend money on campaign contributions — the individuals who control the corporations do. So what the Supreme Court has done is to remove any limits we might put on corporate CEOs to spend corporate money to advance the interests that indubitably are intended to redound to the benefit of those individual CEOs. I wouldn’t limit the ability of CEOs and shareholders to make individual contributions to political campaigns, but why are we treating purely legal entities like they are made of flesh and blood?

As Buzzflash pointed out recently, Thom Hartmann in his book Unequal Protection explains:

Prior to 1886, corporations were referred to in U.S. law as “artificial persons.” but in 1886, after a series of cases brought by lawyers representing the expanding railroad interests, the Supreme Court ruled that corporations were “persons” and entitled to the same rights granted to people under the Bill of Rights. Since this ruling, America has lost the legal structures that allowed for people to control corporate behavior.

Who needs public services in case of disaster? Not the rich . . .

The market strikes again: worried about help in the event of disaster? Well, with a lot of money, you’ve got nothing to worry about – as Naomi Klein writes, if you’re worried about wild fires burning down your home, you can buy private fire fighters who will stand by and watch your neighbors’ home go up in flames, or you can even buy larger scale disaster relief:

[Pellston, Michigan] is about to become the headquarters for the first fully privatized national disaster response center. The plan is the brainchild of Sovereign Deed, a little-known start-up with links to the mercenary firm Triple Canopy. Like HelpJet ["guarantees its well-heeled members a seat on a chartered jet out of the hurricane zone"], Sovereign Deed works on a “country-club type membership fee,” according to the company’s vice president, retired Brig. Gen. Richard Mills. In exchange for a one-time fee of $50,000 followed by annual dues of $15,000, members receive “comprehensive catastrophe response services” should their city be hit by a manmade disaster that can “cause severe threats to public health and/or well-being” (read: a terrorist attack), a disease outbreak or a natural disaster. Basic membership includes access to medicine, water and food, while those who pay for “premium tiered services” will be eligible for VIP rescue missions.(Hyperlinks added.)

What is a Judicial Author?

I have posted on SSRN a copy of an article entitled “What is a Judicial Author?” I presented several years ago at a conference. I have learned to my utmost gratitude that Lewis Hyde will be quoting and citing the article in his forthcoming, much-anticipated book on the cultural commons. As the article’s abstract explains:

This paper, originally presented in draft at the Con/Texts of Invention Conference sponsored by the Society for Critical Exchange, examines the ways in which judges write opinions, the ways experienced and inexperienced legal readers conceptualize judges as authors, and the affect these conceptions have on the way they read those opinions. The paper describes judicial writing as a quintessential example of collaborative writing, a view corroborated by the ways experienced lawyers use and interpret judicial opinions in practice. The judicial opinion is not, as lay opinion grounded in the Romantic view that forms contemporary common wisdom would have it, the original work of the wise and creative judge pronouncing from on high. Rather, the opinion itself is a piece cobbled together from a number of other sources that include established law, the lawyers’ written and spoken legal arguments, secondary legal sources, and earlier opinions that were themselves built up from the bits and pieces floating through the legal discourse community. Nevertheless, conventional legal thinking has since at least the 19 th Century through today propounded the notion of the judge as quintessentially Romantic author-creator. This clash between legal practice and the conventions of legal (and especially academic) discourse poses real and neglected problems in legal education, especially in the ways the Romantic view of judicial authorship instills in students habits of reading.

Are free markets always the best? Of course not, and where’d we get that idea?

Ideas often trump reality, especially in law. In my career, Law and Economics, grounded in the principle that law works best when it serves some notion of economic efficiency, has grown from a rather small movement identified with the University of Chicago into perhaps the dominant legal theory in our law schools and among our more prominent judges. I’ve always thought, for a number of reasons, that the faith in “markets” on which Law and Economics is grounded is bunk. I’m plainly not alone. Tony Judt writes:

In the last thirty years, a cult of privatization has mesmerized Western (and many non-Western) governments. Why? The shortest response is that, in an age of budgetary constraints, privatization appears to save money. If the state owns an inefficient public program or an expensive public service—a waterworks, a car factory, a railway—it seeks to offload it onto private buyers.

The sale duly earns money for the state. Meanwhile, by entering the private sector, the service or operation in question becomes more efficient thanks to the working of the profit motive. Everyone benefits: the service improves, the state rids itself of an inappropriate and poorly managed responsibility, investors profit, and the public sector makes a one-time gain from the sale.

So much for the theory. The practice is very different. What we have been watching these past decades is the steady shifting of public responsibility onto the private sector to no discernible collective advantage. In the first place, privatization is inefficient. Most of the things that governments have seen fit to pass into the private sector were operating at a loss: whether they were railway companies, coal mines, postal services, or energy utilities, they cost more to provide and maintain than they could ever hope to attract in revenue.

For just this reason, such public goods were inherently unattractive to private buyers unless offered at a steep discount. But when the state sells cheap, the public takes a loss. It has been calculated that, in the course of the Thatcher-era UK privatizations, the deliberately low price at which long-standing public assets were marketed to the private sector resulted in a net transfer of £14 billion from the taxpaying public to stockholders and other investors.

To this loss should be added a further £3 billion in fees to the banks that transacted the privatizations. Thus the state in effect paid the private sector some £17 billion ($30 billion) to facilitate the sale of assets for which there would otherwise have been no takers. These are significant sums of money—approximating the endowment of Harvard University, for example, or the annual gross domestic product of Paraguay or Bosnia-Herzegovina.[2] This can hardly be construed as an efficient use of public resources.

In the second place, there arises the question of moral hazard. The only reason that private investors are willing to purchase apparently inefficient public goods is because the state eliminates or reduces their exposure to risk. In the case of the London Underground, for example, the purchasing companies were assured that whatever happened they would be protected against serious loss—thereby undermining the classic economic case for privatization: that the profit motive encourages efficiency. The “hazard” in question is that the private sector, under such privileged conditions, will prove at least as inefficient as its public counterpart—while creaming off such profits as are to be made and charging losses to the state.

The third and perhaps most telling case against privatization is this. There can be no doubt that many of the goods and services that the state seeks to divest have been badly run: incompetently managed, underinvested, etc. Nevertheless, however badly run, postal services, railway networks, retirement homes, prisons, and other provisions targeted for privatization remain the responsibility of the public authorities. Even after they are sold, they cannot be left entirely to the vagaries of the market. They are inherently the sort of activity that someone has to regulate.

Learn that government regulation can be very effective in under 2 minutes.

Next time someone tells you government regulation doesn’t do any good, ask them to watch the video below and whether they’d rather be driving a car built before the government started regulating automobile safety.

Supreme Court decides, 5-4, that those public courts aren’t so public after all.

From the L.A. Times:

By a 5-4 vote, the U.S. Supreme Court kept in place Wednesday its order blocking video coverage of the trial of California’s Proposition 8, with a conservative majority ruling that defenders of the ban on same-sex marriage would likely face “irreparable harm” if the proceedings were broadcast to the public.

“It would be difficult — if not impossible — to reverse the harm of those broadcasts,” the court wrote in an unsigned opinion. The witnesses, including paid experts, could suffer “harassment,” and they “might be less likely to cooperate in any future proceedings.” The high court also faulted U.S. District Judge Vaughn Walker for changing the rules “at the eleventh hour” to “allow the broadcasting of this high-profile trial” that will decide whether gays and lesbians have a right to marry in California.

Though the opinion is unsigned, it clearly speaks for Chief Justice John G. Roberts Jr., and Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr. . . .

The majority cited newspaper accounts from the last year to bolster its contention that opponents of same-sex marriage have been “subject to harassment,” including “confrontational phone calls and e-mail messages” and even “death threats.” Under the court’s rules, the justices do not intervene in pending cases unless they are convinced that the appealing side has a strong legal claim as well as evidence of “an irreparable harm” if the court fails to act.

[Justice] Breyer [in the dissenting opinion joined in by Justices Stevens, Ginsburg, and Sotomayor] scoffed at the notion that the witnesses in this case would face harm, because they have gone on television in the past to advocate their views. “They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the state advocating a ‘yes’ vote on Proposition 8,” he said.