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

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.

There’s nothing radical about Wise’s position. The law already recognizes that artificial entities such as corporations are legal “persons” and are therefore, among other things, entitled to the protections accorded people under the Bill of Rights.

Anatomy of a Murder, or How to Coach a Witness

In the Michigan Bar Journal, Frederick Baker, Jr. writes “Reflections on the 50th Anniversary of Anatomy of a Murder (pdf),” noting the movie’s realism and its creation of the law thriller as a whole new literary genre:

[C]onsider “the lecture,” in which Polly [the defense attorney hero] tells his client the law so that Mannion [the defendant in a murder trial] could tell him the facts that might sustain an insanity defense. It is such a deft example of how a lawyer can walk the fine ethical line between coaching a client and counseling the client on what testimony might offer salvation that it is included in Ladd and Carlson’s evidence text, which is where I first encountered Anatomy of a Murder, while studying evidence with Ronald Carlson.

John [Voelker] literally created a new fictional genre with Anatomy. Before then, no novel had so truly depicted the actual preparation and trial of a case. The Grishams and Turows who followed all owe a debt to John, who wrote a novel that was both true to life and true to himself.

As Michael Asimow writes, both the novel and the film version (which he describes as (probably the finest pure trial movie ever made) are filled with legal and ethical issues that resonate to this day:

In his famous “lecture,” Biegler [the defense attorney in the movie] skates close to the line of unethical witness coaching—that is, knowingly altering a witness’ story about the events in question. When Biegler first meets Manion [his client] in jail, he manages to overcome the client’s intense mistrust and then the discussion turns to whether the client has a defense. How far can counsel go in suggesting a defense to a client who hasn’t a clue? And should the lawyer discuss possible defenses before asking the client what happened? Because once the client has told the attorney his story, that freezes the client’s version of the facts; it’s too late to mold the facts to fit a particular defense.

Clearly it is improper to assist the client to make up facts that never occurred. . . . But it’s perfectly OK (indeed obligatory) for counsel to interview a witness and to discuss his testimony in order to assist the witness to testify effectively. And surely it is appropriate to tell a client what the law is, even if that suggests a defense to the client that he might not have realized was available. The problem is that a clever attorney can convey an implicit message to a witness that alters the witness’ testimony—without ever coming out and actually telling the witness to do it.

In the film, Biegler is obviously quite aware of the limits on witness coaching but most observers think he stayed on the ethical side of the line. Without first asking Manion exactly what happened, he tells Manion about the categories of justification and excuse and rules out each possible claim. For example, killing in the defense of another is a possible justification—but not an hour after the purported rape occurred. Biegler also nixes the “unwritten law” which allows you to kill someone whom you discover in flagrante with your spouse. Not recognized as a defense in Michigan, unfortunately.

So Biegler keeps Manion guessing until Manion says “I must have been mad.” Sorry, bad temper isn’t a defense. “No,” says Manion, “I must have been crazy. ” “Well, Lieutenant,” replies Biegler, as he steps from the room, “in the meantime, see if you can remember how crazy you were.” So the client comes up with the defense, albeit with a bit of gentle prodding from the attorney, and either remembers or fabricates the facts to support that defense. We’ve screened this scene before quite a few audiences, and hardly any attorneys have ever voted to discipline Biegler, even though it seems quite likely that Manion’s testimony is different than it would have been in the absence of the lecture and that Biegler intended exactly that.

In the book however, Biegler goes a step further. The suggestion for the insanity defense comes from Biegler, not from Manion. Speaking in the first person, Biegler recounts his conversation with his client: ” ‘Then, finally there’s the defense of insanity.’ I paused, and spoke abruptly, airily: ‘Well, that just about winds it up.’ ” Then Manion starts asking questions about insanity. Biegler plays dumb and answers the questions, but tells the reader: “My naivete was somewhat excessive; it had been obvious to me from merely reading the newspaper the night before that insanity was the best, if not the only, legal defense the man had. And here I’d just slammed shut every other escape hatch and told him this was the last. Only a cretin could have missed it, and I was rapidly learning that Lieutenant Manion was no cretin.” (Pp. 45-46)

It can be argued that, in the book’s version, Biegler overstepped the line by coaching his client right into a made-up defense. . . . The movie, however, is more subtle. The client comes up with the defense, but obviously with a lot of covert help from his lawyer.

A new breed of lawyers

As the New York Times reported two years ago, a couple in New York City rescued three pigeons in Central Park and gave them a home in their apartment for years. When the building went co-op, however, the new landlords sued to evict the couple under a city ordinance outlawing chickens, cows, “or any pigeon except Antwerp or homing pigeons.” Maddy Tarnofsky, a new breed of lawyer, came to their rescue. First, she wondered, how could the landlord prove the pet birds weren’t Antwerp or homing pigeons? He couldn’t; there is no biological difference between Antwerp pigeons or any other pigeons, and, a veterinarian testified, the birds could likely be trained to home as well.  The court dismissed the eviction proceeding.   

As the Times goes on to explain, the growing field of animal law is not without its critics: “Many veterinarians, for example, fear that pet lawyers could become the animal-world equivalent of medical malpractice lawyers, reaping large juryawards and contributing to a rise in malpractice insurance costs. The American Veterinary Medical Association formed a task force on animal law last year and came out squarely against redefining the legal status of pets.”

Many animal law lawyers, however, want to distinguish themselves from animal rights advocates: “they are concerned primarily with getting the legal system to acknowledge that animals have an intrinsic value beyond mere property, because of the bond between pets and their owners.”

Not that animal rights advocates are anything to fear.

ADDENDUM: As Stefani points out in the comments, Christopher Green had demonstrated in his groundbreaking study, “The Future of Veterinary Malpractice Liability” (pdf), the fears manifested in the American Veterinary Medical Association’s opposition to redefining a pet as something more than the equivalent of a chair are baseless.  I’m not surprised.  Playing to the public’s fears of personal injury lawyers is an old and baseless trick.

Thanks to Washoe, Animal Law is even entering legal education

My former colleague at Case Western Reserve, Kathy Hessler, is the Director of the Animal Law Clinic at Lewis and Clark Law School in Portland, Oregon.  The clinic, in which students under the superivision of professors represent clients in real cases, specializes “in animal protection issues including cases against those who have harmed or injured animals, custody disputes, activist defense, “dangerous” dog hearings, pet trusts, and assistance for non-profit organizations.”  Under Professor Hessler’s direction, it will also begin to focus on larger cases focusing on law reform with respect to animal issues.

Sometimes you need a chimpanzee to move the law forward

Traditionally, the law has treated animals as personal property. In other words, your dog is no different to you than one of your chairs. There have been slight modifications — animal cruelty laws, most notably — but for most purposes your dog is no more than chattel. From the New Yorker — ironically enough in an article about Leona Helmsley and her dog, to whom she left $12 million in trust — comes the story of how the growing field of animal rights began.

It all started with Washoe, the first chimpanzee to learn sign language to communicate with humans. When there came a time Washoe was going to be sent off for animal testing, Victoria Bjorklund, a lawyer, wanted to set up a trust and appoint a guardian for Washoe. The problem was that New York law only permitted the appointment of guardians for a “person with a disability.” As the New Yorker explains:

[Bjorklund and her colleagues] argued that “the mental, emotional, sociological, and biological characteristics” of Washoe and the other chimps “warrant their treatment as persons” entitled to representation. The lawyers submitted affidavits from such animal experts as Jane Goodall, who said that “chimpanzees are biochemically closer to humans than they are to any other of the great apes.” According to the brief in the case, the chimps “are capable of rational thought, communication, and other higher cognitive functions,” justifying their treatment as the legal equivalent of minors or disabled humans. In a 1997 decision, the surrogate of Nassau County agreed and appointed a guardian to administer the trust for the benefit of the chimps. “That trust was then respected by the State of Washington, where Washoe lived,” Bjorklund said. “We think it was the first trust ever established for the benefit of specific nonhuman primates.”

Look for new combinations of old things

Lists of instructions for boosting creativity often suggest combining things you have not thought might be related. Obviously, this advice has application in art. It also, just as obviously, has application in law. As Shaun Tan, an accomplished Australian author and illustrator puts it:

Paul Klee once described an artist as being like a tree, drawing the minerals of experience from its roots – things known, observed, read, intuited and felt – and slowly processing them into new leaves. Similarly, the science writer Stephen Jay Gould notes that the greatest discoveries are to be found not in a freshly hewn cliff of shale, but in old museum collections, by rethinking the relationships between the objects that have already know about.

Four weeks into my Contracts class with a group of new law students, they still goggle when I point out that the “rules” they learned the first week can be used to explain the results the fourth week. The students think the fourth week’s materials have to be explained by the fourth week’s “rules.” They can be, but in law any good explanation for a given result is an acceptable one. The more good explanations you have, the more likely you are to the court you should win.

In Neil Duxbury’s “Truth and Rhetoric,”(pdf) Ratio Juris. Vol. 12 No. 1 March 1999 (116–121), the author quotes from Dennis Patterson’s book Law and Truth:

In choosing between different interpretations, we favor those that clash least with everything else we take to be true. In law, as in all matters, “[w]e convince someone of something by appealing to beliefs he already holds and by combining these to induce further beliefs in him, step by step, until the belief we wanted finally to inculcate in him is inculcated.” In law, we choose the proposition that best hangs together with everything else we take to be true. (Law and Truth, 172, citation omitted)

Of course, the ability to combine ideas in new ways requires having as large a storehouse of ideas as possible.

Good Guys, Bad Guys, the ambiguity of everyday life, and effective argument.

It’s a funny thing that non-lawyers usually consider most legal disputes to be between Right and Wrong, the Good Guy and the Bad Guy. It’s an especially difficult prejudice to overcome in first year law students.

Don’t get me wrong. There are situations where there are Good Guys and others where there are Bad Guys. Then there are situations where there are both Good Guys and Bad Guys. The trick in becoming a good lawyer, though, is that from his own point of view, each side to a dispute thinks he’s the good guy.

Thus, if you merely try to paint your adversary as a Bad Guy, you’re going to lose. If, on the other hand, if you understand his arguments as ones made out of good faith in the belief that they represent truth, justice, and the American way, you have gone a long way toward figuring out how to shape your arguments so you can prevail.

Both sides think they’re right. And both sides to most disputes have merit. Usually, though, one side has the better of a well-articulated argument.

Foreign law, the Federalist Society’s view that the U.S. is better than the rest of the world, and censhorship

I now have a bit better idea of where the opposition to citation to foreign law (discussed in my last two posts) comes from.  It’s the belief that the U.S. is so exceptional there’s no point in looking to the “socialist constitutional courts of Europe.”  That’s what Steven Calabresi, a law professor at Northwestern and co-founder of the Federalist Society writes in the September 20 New York Times:

Those of us concerned about citation of foreign law — your article quotes me as one of them — believe in something called American exceptionalism, which holds that the United States is a beacon of liberty, democracy and equality of opportunity to the rest of the world. We think that it is a good thing that constitutional liberties like freedom of speech and of the press are protected more vigorously in the United States than in any foreign country. . . .

The country that saved Europe from tyranny and destruction in the 20th century and that is now saving it again from the threat of terrorist extremism and Russian tyranny needs no lessons from the socialist constitutional courts of Europe on what liberty consists of.

I think that considering the U.S. so exceptional it has no need to even consider the views of foreign courts xenophobic is, after all, not off base.  The first Chief Justice of the United States Supreme Court, John Marshall, himself stated that the opinions of British courts “are entitled to that respect which is due to the opinions of wise men who have maturely studied the subject they decide.”

Merely dismissing the decisions Western European countries have reached on profound legal and moral issues (including the execution of juveniles) as the decisions of “socialists” unworthy of even being considered by us “exceptional Americans” is not argument — it’s name calling and egocentricity.  I don’t see what the difference is between law review articles, British courts, or any other source that might be considered the opinion of  wise people who have maturely studied the subject they are opining on.  Foreign court decisions may be politicized, but of course U.S. court decisions, laws, and regulations are exceedingly political too: it’s all politics, whether in the foreign courts, the law reviews, or the U.S. Supreme Court.  By that I don’t mean to be a cynic or a hard core Legal Realist — rather, I mean it’s all argument.  If one is persuaded that the fact the U.S. was the only western industrialized nation that permitted the execution of juveniles made doing so “cruel and unusual,” then why should one not be permitted to consider that fact?  Justice O’Connor explained why she wasn’t convinced by that fact, but she explained why with counter-argument, not by suggesting the argument was illegitimate.

Clarence Thomas, Antonin Scalia, Samuel Alito, and John Roberts all are or have been members of the Federalist Society, of which Professor Calabresi (a former student of Scalia) was a co-founder.  I presume, therefore, that Calabresi speaks for them when he states that the U.S. is just too exceptional (and other countries too “socialist”) to even allow the courts to look at other countries’ laws in determining what U.S. law is or should be.

It is their views I consider un-American.  Their views suggest the courts should be censored.  It is one thing, as I’ve written, to not be persuaded by the views of other countries.  It is censorship, however, to suggest judges cannot even consider those views.  Who better represents the source of American Jurisprudence than John Marshall?  Are no jurists from other countries wise men who have maturely studied the subjects they decide?  And if we forbid reference to foreign law, why not forbid reference to law review articles, which, after all, generally advance the idiosyncratic views of their authors and rarely have any influence whatsoever on an actual lawmaking?

The sooner we get over “American Exceptionalism” and realize we learn more and make better decisions the more we consider the opinions of other wise men who have studied the same subjects we are studying, the sooner we’ll be better off.

But one more word on the Federalist Society.  If you pay attention, its members spout an unerring common line on issues they’ve identified as important.  They sometimes remind me in their methods of organization of Bolsheviks, who went out into the world with their marching orders to spread the Soviet Communist Party’s word.  Professor Calabresi in his letter to September 20th’s Times makes clear the Federalist Society leadership’s view on whether U.S. Courts should even be allowed to refer to foreign law.  Is it any wonder that in the Times article provoking Calabresi’s letter quoted Scalia, Roberts, and Alito in ways entirely consistent with Calabresi’s and the Federalist Society’s views?

What’s so wrong about looking to foreign law?

An Australian correspondent writes, in response to my post yesterday

What’s surprising to me as an Australian is that there is any controversy at all. There’s a huge difference between looking at various sources for examples of reasoning and acknowledging established local precedent as representing the law. From 1st year our students are taught the difference between persuasive and binding authority. Isn’t it healthier to be transparent about the reasoning process rather than pretending that judges aren’t sometimes influenced by personal ideology or politics or God forbid, high level judicial reasoning from othe jurisdictions with a common legal heritage?

He also reminds me of a law review article written here in the States over ten years ago that, on the same grounds, questions the basis for any objection to using foreign law for guidance in making U.S. law.  In “All the World’s a Courtroom, Judging in the New Millennium,” 26 Hofstra L. Rev. 273 (Winter 1997), Shirley S. Abrahamson and Michael J. Fischer opened with the description of an oral argument in a case before the Wisconsin Supreme Court:

In the . . . case, the defendant, a one-time farmer who had been diagnosed with Alzheimer’s disease, struck and injured the head nurse in a health care center where he was confined. The court was asked to resolve one issue: Should the farmer be judged by the traditional tort standard of the reasonable person, or given that he was not capable of either controlling or appreciating his conduct, should he be absolved from civil liability altogether? 

In most states, including Wisconsin, the courts ha[d previously] concluded that a mentally disabled person must be held to the same objective standard of care as someone without such a disability. Thus the mentally disabled are generally held liable for their acts under the reasonable person standard.

American legal scholars have sharply criticized this traditional American rule. They point out that applying the reasonable person rule to people with mental conditions, in effect, imposes liability without fault, even though the law of negligence is ordinarily grounded in fault, and even though liability is incompatible with modern views and treatment of the mentally ill. 

Counsel for the farmer urged the Wisconsin Supreme Court to adopt a rule that persons should be held liable only when they know what they are doing.  And like most lawyers urging a court to adopt a new rule, counsel for the farmer sought to reassure the court of the wisdom of change by pointing to law from other jurisdictions, specifically Florida  and Canada, which seemed to buttress her point. If the new rule works there, her reasoning went, then surely it could work in Wisconsin.

Florida, the Canadian case was an entirely different matter altogether. “Petitioner is not aware,” the brief noted archly, “if Canadian case law has precedential value in the United States.” 

Counsel, of course, knew quite well that it does not. But by the same token, neither does Florida law have precedential value in Wisconsin. Why then did the nurse’s counsel single out Canada? Probably because the law of foreign countries is treated today with the suspicion that may have once marked some state courts’ approach toward the law of their sister states.

Today our state courts accept the logic behind Justice Cardozo’s famous remark, in a case involving New York and Massachusetts law. New York is “not so provincial,” Cardozo wrote, “as to say that every solution of a problem is wrong because we deal with it otherwise at home.” But while state courts routinely look to the decisions of their sister jurisdictions for the insights and persuasive value they potentially possess, the nurse’s counsel obviously 

viewed looking across our national borders as an “inherently suspect activity.” 

I was perplexed. Why did the farmer’s counsel’s citation of Canadian law signal desperation and trigger derision? Why, I wondered, should case law from Canada–an English-based, commonlaw jurisdiction geographically closer to Wisconsin than Florida–not be considered persuasive?

Professor Johns and I ask the same question, but now of several members of our country’s Supreme Court, including its Chief Justice.  As far as I can tell, there’s no good reason other than a pandering to the jingoism running strong through our current politics.  One correspondent has taken strong exception to me in essence calling Chief Justice Roberts a xenophobe, and I don’t think he personally is.  Nevertheless, his political support depends on pandering to xenophobia.  I can think of no other reason to close off consideration of arguments and reasoning that may be helpful to resolution of difficult legal questions.

Foreign law and legal argument

I wrote a post over two years ago on the point, but the legitimacy of U.S. courts referring to foreign law is an issue again today because the New York Times published a front page article discussing the waning influence of the U.S. Supreme Court’s decisions on the court decisions of other nations.  One reason, according to the article, is the steady outcry from some quarters against any reference to foreign law in the U.S. courts. 

I find this outcry absurd and positively contrary to the tradition of Anglo-American law.  The common law system, unique to the Anglo-American world, is one that builds law case by case, recognizing that to achieve justice the unique facts of each case require consideration of the arguments of the parties directly affected by those facts.

The key to my point is that the courts hear arguments.  They consider prior precedents, the views of experts, and even the rantings of political idealogues.  There’s nothing wrong with doing so.  There should be no limit on what courts can refer to and rely on; rather, faced with deficient evidence or authority, the answer is correct evidence or authority.  Thus, as I explained two years ago, when a judge relies on the above-referenced political idealogue’s screed about the purported litigation explosion in reaching her decision, the answer isn’t to forbid her from doing so.  The answer is for lawyers and judges to point out that the facts don’t support her argument, that in fact 86% of trial judges surveyed consider frivolous litigation anything from “no problem” to a “small problem,” while only 2% consider it a “big problem.”

Thus, when Anthony Kennedy wrote the majority opinion in the Supreme Court case holding that executing juveniles is “cruel and unusual punishment” under the 8th Amendment to the U.S. Constitution, it was perfectly legitimate of him to point out in support of his conclusion that ”evolving standards of decency that mark the progress of a maturing society” could be measured in part by the fact that no other Western industrialized country executes juveniles.  One may  disagree that U.S. standards are identical to those in other countries.  Justice O’Connor did so in that decision, arguing that “too few states had recently enacted such laws to convince her that the country generally had ’set its face’ against the juvenile death penalty.”

The disagreement between Kennedy and O’Connor is the kind of disagreement courts resolve every day, but to not merely disagree with Kennedy but seek to entirely cut off reference to any source for one’s legal arguments is contrary to any notion of law I understand.  I expect it from (influential) right-wing wackos who think judges should be impeached for even considering foreign law in reaching their decisions.  I don’tf from our most recently appointed and confirmed Supreme Court Justices, John Roberts and Samuel Alito:

At their confirmation hearings, Chief Justice John G. Roberts Jr. and JusticeSamuel A. Alito Jr. indicated that they were opposed to the citation of foreign law in constitutional cases. Chief Justice Roberts noted that foreign judges were not accountable to the American people and said that allowing the use of foreign precedent expanded judicial discretion.

“Foreign law, you can find anything you want,” Chief Justice Roberts said. “Looking at foreign law for support is like looking out over a crowd and picking out your friends.”

You can just as easily find “anything you want” in virtually any source courts regularly cite.  As I stated above, the answer to bad argument is good argument, not censorship.  There is nothing special about foreign court decisions except, it seems, an ever-growing U.S. fear of everything “foreign.”

Where should art be, and how does it often get where it is?

Ingrid D. Rowland in the New Republic writes a terrific review and critique of Who Owns Antiquity?: Museums and the Battle over Our Ancient Heritage, by James Cuno. Cuno’s publisher describes the book like this:

Whether antiquities should be returned to the countries where they were found is one of the most urgent and controversial issues in the art world today, and it has pitted museums, private collectors, and dealers against source countries, archaeologists, and academics. Maintaining that the acquisition of undocumented antiquities by museums encourages the looting of archaeological sites, countries such as Italy, Greece, Egypt, Turkey, and China have claimed ancient artifacts as state property, called for their return from museums around the world, and passed laws against their future export. But in Who Owns Antiquity?, one of the world’s leading museum directors vigorously challenges this nationalistic position, arguing that it is damaging and often disingenuous. . . . The first extended defense of the side of museums in the struggle over antiquities, Who Owns Antiquity? is sure to be as important as it is controversial.

As Rowland explains in her review, “Noting that modern laws about the import and export of antiquities did not exist when Napoleonic troops discovered the Rosetta Stone, Cuno suggests that under modern conditions British soldiers might not have been able to . . . spirit it away to the British Museum, with the result that Jean-François Champillon might not have been able to decipher Egyptian hieroglyphic script. The point of this exercise . . . is to demonstrate a larger point, which is that antiquities laws as currently drawn impoverish rather than enrich the global level of culture.” In addition, Cuno argues that nations who retain and reclaim their archaeological heritage are advancing harmful nationalistic agendas, not the preservation of cultural artifacts with global relevance:

The emotional, “national cultural identity” card played by some proponents of nationalist retentionist cultural property laws is really a strategic, political card. National museums are important instruments in the formation of nationalist narratives; they are used to tell the story of a nation’s past and confirm its present importance. That may be true of national museums, but it is not true of encyclopedic museums, those whose collections comprise representative examples of the world’s artistic legacy.

Rowland will have none of it. First, she points out that the “encyclopedic museums” whose interests Cuno is advancing are themselves the products of nationalism. As she puts it, “[t]he founders of the Metropolitan Museum of Art, the Boston Museum of Fine Arts, and the Art Institute of Chicago [where Cuno is museum director] imperiously took it for granted that those cities belonged to a United States of America that stood as beacon to the world–the land of the free and the home of the brave. It is either naive or tendentious to argue that those institutions were founded instead to serve some great multicultural vision of human fraternity.” She also goes to some length to counter Cuno’s criticisms of Italy, the source of so much of the looted art spread through museums throughout empires past and present.

Rowland also points out that, while the “encyclopedic museums” might have preserved some of the antiquities they obtained over the years, they have also taken away a lot:

It is a different thing to see the ancient statue called the Spinario right there in Rome where Pope Sixtus put it in 1471, where many of the great artists of the Renaissance drew it, where Winckelmann and Goethe saw it, than it is to see an ancient bronze in the Met. It is one thing to stand in the theatre of Ephesus, right there where the riot broke out among the silversmiths who made votive trinkets for the Temple of Artemis, who feared the impact that a wandering preacher named Paul of Tarsus might have on their business–and it is quite another matter to see a column from that temple in the British Museum. The Elgin Marbles have been spared the foul air of modern Athens, but they were not spared a good British scrub down with soap and water when they arrived in the early nineteenth century, and neither fate has been kind to the polished surface of the Parthenon’s sculpture.

With respect to moveable antiquities, Rowland emphasizes that their removal from their geographic origins robs their audience of an appreciation for their true significance. We see Greek pottery in the Metropolitan Museum, for example, without realizing it came from Italy and reflects the market demands of the ancient Etruscan culture that imported it as much as it does the culture of the Greek exporters. She also wonders why Cuno focuses on the value of one donor’s contributions to the Metropolitan Museum of Art while ignoring that donor’s landmark agreements to return some of her collection to Italy. Rowland, in short, reads Cuno’s book “as a brief for outright possession–that we own antiquity as much as the Italians, Greeks, Chinese, and Iraqis do, and therefore we have an equal right to their archaeological wealth–rather than as some abstract idea of respect for a shared human cultural tradition.”

Rowland also has her own problems with the system that passes antiquities to “encyclopedic museums,” including the fact it is dominated by organized crime.  She also questions whether nationalism is such a bad thing. It has allowed Italy to modernize and become the home of the best experts on antiquities from the Italian peninsula. And with respect to Egypt, she writes, with some sharpness:

[A] growing number of modern Egyptians are no longer illiterate fellahin. The new Library of Alexandria stands across the street from the University of Alexandria, with its 140,000 students; its alumni include the Nobel laureate Ahmed Zewail, now at Caltech and one of the most imaginative chemists working today. Zahi Hawass may be a baron in his position as head of Egypt’s Supreme Council of Antiquities, but he serves notice to the barons who dwell in the world’s encyclopedic museums that they must now take the bright, eager young people of Egypt into account.

Rowland acknowledges that Cuno represents a new generation of museum directors who improve significantly on their predecessors’ arrogant destructiveness. But she begs for squarely addressing the problems posed by “the hubris, greed, and lust for possession that beautiful things have always exerted on our own breed of gregarious primate.”

She’s certainly right about the greed and lust for possession of beautiful things. The London TimesOnline reports that”[a]rt theft is big business. The FBI estimates that it is a global industry worth $6 billion (£3.3 billion) a year. In France it is reckoned the fourth most lucrative criminal activity.” Reviewing Stolen: The Gallery of Missing Masterpieces, by Jonathan Webb and Julian Radcliffe, Rachel Campbell-Johnston explains:

The art world is a rarefied place. Discretion is prized. Dealers prefer not to discuss client lists. Collectors can be very secretive. On top of that, art works are usually whisked out of the country a few days after being stolen. Often they will not emerge again for years. When they do they may well be in the hands of a bona fide person. . . .

Art theft, as Stolen makes clear, is frequently connected with the crimes with which it competes for police attention. . . . Criminals in Dublin, for instance, pulling off a spectacular heist in a country estate, corralled Rubens, Vermeer and Goya into providing venture capital for a drug-dealing ring. In Buenos Aires at the time of the Falklands conflict, Cézanne helped a brutal dictatorship to pull off an illicit arms deal.

To get a sense of what’s been lost, you can read the Guardian’s descriptions of the greatest art you’ll never see.

An appeal in the Harry Potter Lexicon case?

More on the Harry Potter Lexicon, which a few days ago was ruled to infringe J.K. Rowling’s copyright: the Berkman Center for Internet & Society at Harvard University announced that its Citizen Media Law Project will “work closely” with a Right to Write, a new non-profit, to to help support creative artists faced with legal threats or lawsuits. Right to Write links to an article written by Anthony Falzone, the Executive Director of the Stanford Fair Use Project, in which Falzone writes, “Needless to say we’re disappointed [in the decision holding the Harry Potter Lexicon infringed Rowling's copyright], as is our client, RDR Books. Careful and thoughtful as the decision is, we think it’s wrong. So stay tuned to see where we go from here.”

Sounds to me like there will be an appeal.

This morning I didn’t think about the fact I wasn’t being original.

I didn’t realize when I wrote this morning’s post that Ann Bartow at Sivacracy.net had over a month ago quoted musician Jeffrey Lewis’s piece in the New York Times making essentially the same points:

We are all cultural magpies.

I’ve written before that many consider all creative endeavors collaborative. This collaborative quality obviously has significance in an environment in which, for example, the RIAA states that “generally speaking, the use of any part of a song requires a license.” (emphasis added). Although until now the courts have indeed found that a sample of any part of a song does require a license, a more nuanced approach is, I think, inevitable. That inevitability is not just because groups like Girl Talk and Negativeland are creating works that sound genuinely “original” by weaving together pieces of other recordings. It is also because there is a growing recognition that some of the people we consider our greatest originals are cultural magpies.  And pop music, the “property” the record industry protects most fiercely, is likely the most unoriginal original art there is. As the KLF put it in The Manual (How to have a Number One the Easy Way):

Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality. In the past, most writers of songs spent months in their lonely rooms strumming their guitars or bands in rehearsals have ground their way through endless riffs before arriving at the song that takes them to the very top. Of course, most of them would be mortally upset to be told that all they were doing was leaving it to chance before they stumbled across the tried and tested.

You don’t believe them? Check out Kid Rock (and don’t get me wrong — I like the song, but no small part of my liking it is knowing the songs it’s derived from):

And just to make your head spin, read this.

Looking at Guantanamo

I mentioned in my post last Thursday that Margaret Boden, a cognitive scientist in Great Britain, has described three principal ways law is creative. The first she calls “Combinational Creativity,” which she describes as “putting familiar ideas together in unfamiliar ways.”

Putting familiar ideas together in unfamiliar ways is perhaps the type of creativity law students come to know best. As first year law students quickly learn, law is not a set of abstract rules imposed on reality. Rather, legal “rules” tend to be conditional – they are developed case by case as justifications for the results the courts deem just in those cases. But any time a new case arises that presents a new set of facts not foreseen by the courts that made the earlier decisions, the “rules” articulated in earlier cases may no longer seem just and appropriate.

The U.S. Supreme Court was faced with the need to put familiar ideas to work in a way previously unanticipated in its recent decision in Boumediene v. Bush. The Court in Boumediene decided that prisoners held at the U.S. base in Guantanamo are entitled to invoke the constitutional writ of habeus corpus to challenge their detention as “enemy combatants.” In plain English, once a person’s liberty has been taken away, he is entitled to challenge his imprisonment by requiring the government to prove before a court that it has a legitimate basis for holding him. As the New York Times has explained, the Bush administration has taken the position that it needs very little to justify holding prisoners indefinitely as “enemy combatants”:

The government sets a frighteningly low standard for itself, saying it needs only “some evidence” that a citizen has “associated” with a terrorist organization “bent on hostile acts” to hold him indefinitely.

One reason the Bush administration established its “detention center” in Guantanamo was plainly so it could argue that prisoners held there were outside U.S. territory and therefore beyond the geographic reach of U.S. courts. Thus, the administration’s thinking went, even if the only evidence against a prisoner was the word of some Afghani who had captured him that he was a member of the Taliban or Al-Qaeda, the prisoner would not be able to challenge that evidence or even present contrary evidence of his own in any court. As the Supreme Court explained in Boumediene, the administration’s argument was based on the unique status of Guantanamo, over which the U.S. holds complete control under a perpetual “lease” from Cuba:

Guantanamo Bay is not formally part of the United States. And under the terms of the [1903] lease between the United States and Cuba, Cuba retains “ultimate sovereignty” over the territory while the United States exercises “complete jurisdiction and control.” . . .

The United States has maintained complete and uninterrupted control of the bay for over 100 years. . . . And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.

The Court also recognized that prior law did not establish how a territory with such a status should be treated. Thus, it concluded that the historical examples of hybrid territories both sides presented to the Court failed to answer to the question before the Court. Interestingly, the Court compared the absence of convincing historical precedent to the situation it faced in 1954 in Brown v. Board of Education:

[G]iven the unique status of Guantanamo Bay and the particular dangers of terrorism in the modern age, the common-law courts simply may not have confronted cases with close parallels to this one. We decline, therefore, to infer too much, one way or the other, from the lack of historical evidence on point. Cf. Brown v. Board of Education, 347 U. S. 483, 489 (1954) (noting evidence concerning the circumstances surrounding the adoption of the Fourteenth Amendment , discussed in the parties’ briefs and uncovered through the Court’s own investigation, “convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive”) . . . .

So what did the Court do? It decided that although “ultimate sovereignty” over Guantánamo continues to reside in Cuba, the United States exercises “complete jurisdiction and control” that is “absolute” and “indefinite.” The U.S. as a a matter of fact exercises all the control over Guantanamo it would if it legally owned it rather than held it under a perpetual lease. In addition, it is impossible to consider Guantanamo Cuba’s territory in connection with the U.S. detention center, even though technically Cuba is the territory’s “sovereign,” because Cuban law does not apply on Guantánamo: “[n]o Cuban court has jurisdiction to hear these petitioners’ claims, and no law other than the laws of the United States applies at the naval station.”

In short, if U.S. law does not apply to the prisoners held at Guantanamo, no law does. That is exactly what the Bush administration had wanted, and it is exactly what the Supreme Court rejected in Boumediene.

September 11, 1973

September 11 is a date that resounds with infamy, and not only in the way most of you think.  On September 11, 1973, Augusto Pinochet, with the aid of the CIA, overthrew the democratically elected government of Salvador Allende, imposing a brutal military dictatorship and giving Milton Friedman and his acolytes their first laboratory for the application of their truly radical free market economics. I don’t mean that capitalism is radical.  I mean that the capitalism of Friedman and his followers was and, even though today it has come to represent the common wisdom today, still is.

Chile, economics, and even September 11 are obviously off-topic for me, but I  couldn’t help but think I had to bring it up after listening on PRI this afternoon to  the story of American Mishy Lesser, who was in Chile on September 11, 1973 and, hunted by the newly installed military dictatorship, was taken in, along with her boyfriend, by a family with no particular political commitments.  They subsequently helped her get out of the country, but for their efforts were arrested, imprisoned, and tortured.  Lesser’s boyfriend ended up as one of the legion of Chilean “disappeared.”  Thirty five years later, Lesser returned to Chile to find the family who gave her sanctuary so that, among other things, she could find out why they did risked so much for a stranger who brought them so much tragedy.  Go here to listen to her story.

What is creativity in law?

In “Creativity and Law: Can they Live Together?” (pdf), Margaret A. Boden, a cognitive scientist in Great Britain, identifies three main ways in which creativity informs the law:

(1) Combinational Creativity: putting familiar ideas together in unfamiliar ways.

(2) Exploratory Creativity: exploring, navigating, and testing the potential and boundaries of some pre-existing way of thinking.

(3 Transformational Creativity: changing one or more dimensions of the current conceptual space so that things can now be thought which were impossible to think before.

In the coming days, I hope to explore each of these categories, both in terms of Boden’s discussion and of my own experience as a practitioner and professor.  For now, I have two points to make: plainly, in answer to the question posed by the title of Boden’s article, both she and I feel creativity and law not only can live together but are inextricably intertwined.  Anyone who thinks that applying law to real life is merely a matter of finding the right law to apply to the right situation has no appreciation for the infinite complexity of life, the ways that — while history repeats itself — history never repeats itself in precisely the same ways, and the ways that everyone brings their own perspective to events.  We never, as I have previously written here, have “God’s video tape” of events.  We only have the fragmentary pieces of individual testimony, documentary and physical evidence, and the intelligence we can bring to bear on putting those fragments together in a coherent and persuasive way.

Which brings me to the last point I have for today.  Boden describes creativity as the “ability to generate ideas that are new, surprising, and valuable.”  I have no particular reason to question that definition.  But she goes on to explain:that in law, “valuable” can mean a whole host of different things.  I’d like to suggest one simple definition of what is valuable in law: is the product persuasive?  If so, it will make its impact on the outcome of cases, the outcome of negotiations, the outcome of counseling, the outcome of judicial decisions.  If the legal product is not convincing, no matter how elegant, daring, or radical it might be, it has little legal value.

The Bush Administration’s tyrannical torture policies and its rewards

I’ve written here before of the Bush Administration’s “interpretations” of law that lied about and distorted the rules on which their authors based their conclusions.  One point I made was that achieving real intelligence in any creative endeavor, including law and art, requires acting within constraints. Anthony Lewis has an excellent article in the current New York Review of Books that goes into some detail on the history of what he calls “Official American Sadism.” Among other matters (read the whole article), I am grateful that he points out that with respect to torture and the treatment of prisoners in the so-called “War on Terror,” many U.S. lawyers, military lawyers who have represented “enemy combatants,” have followed the “rule of law,” the very constraint that keeps the President from acting like an arbitrary tyrant. In contrast to those real heroes, Lewis’s suggests that members of the administration have committed war crimes, a point that is certainly not far-fetched, though I doubt we’ll ever see them prosecuted:

Unlike John Yoo and William Haynes, most American lawyers who have been involved in the issues of torture and boundless detention have defended American ideals of justice. That has been strikingly so in the case of lawyers in the military services, the judge advocates general. Major Frakt, whose powerful argument on behalf of Mohammed Jawad I noted above, is one example among many. Large numbers of private lawyers have volunteered their time and struggled against official obstacles to represent prisoners. . . .

To date the “enablers of torture” . . . are doing fine. President Bush, Vice President Cheney, and David Addington remain in office. Jay Bybee, who issued the legal opinion that said the president had unlimited power to order the use of torture, was nominated and confirmed as a judge of the United States Court of Appeals for the Ninth Circuit before his torture role became known. John Yoo is in his professorship at the Berkeley law school; the dean, Christopher Edley, said in April that tenure protected him there and that his clients—President Bush et al.—were “the deciders.” Yoo is also regarded by television programs and by the opinion pages of newspapers, including The Wall Street Journal and The New York Times, as a legitimate voice on issues of presidential power, and he appears frequently.

Yoo and Addington appeared in June before a House Judiciary subcommittee; they ducked questions about their responsibility. When Addington was asked whether it would be legal to torture a detainee’s child, he replied: “I’m not here to render legal advice to your committee.” [Yoo, on the other hand, has not been as evasive, at least in the past. In December 2005 he stated in a Chicago debate that there is no law that could prevent the President from theoretically ordering the torture of a child of a suspect in custody - including by crushing that child’s testicles.”] William Haynes, the former Defense Department general counsel, appeared before a Senate committee and repeatedly said, in answer to questions, that he could not remember. A Washington Post column on his testimony was headlined “Abu Ghraib? Doesn’t Ring a Bell.”

Torture by officials is prohibited by US criminal law as well as by the international Convention Against Torture and the Geneva Conventions. According to the new book by Jane Mayer, the International Committee of the Red Cross concluded in a report last year that interrogation methods used by the CIA on a high-level prisoner “categorically” constituted torture. Her book, The Dark Side: The Inside Story of How The War on Terror Turned into a War on American Ideals, says the ICRC report was sent to the CIA, the detaining authority, which “shared it with the President and the Secretary of State.” Mayer writes that the report “warned that the abuse constituted war crimes, placing the highest officials in the US government in jeopardy of being prosecuted.”

(hyperlinks added; footnotes omitted).

Court rules Harry Potter Lexicon infringed J.K. Rowling’s copyright

I’ve been vindicated. I wrote on April 14 that I thought J.K. Rowling’s lawsuit for copyright infringement against the author of a Harry Potter Lexicon would prevail because the case was so much like another, Castle Rock Entertainment Group v. Carol Publishing, Inc., where the court ruled that a trivia book based on the characters and events of the Seinfeld television series infringed the copyrights held by the producers of the TV show.

Yesterday, a federal judge in New York City ruled in J.K. Rowling’s favor and blocked publication of the Harry Potter Lexicon because Rowling’s lawyers had established that the lexicon copied too much directly from the novels.

The court in the Seinfeld case ruled that the author of the trivia book based on the TV series had merely repackaged the “facts” of the series in a different way. Similarly, the Harry Potter Lexicon was merely a repackaging of material from the Harry Potter books. Apparently, the lexicon’s entries copied verbatim substantial parts of the book.

It has been said again and again, and rightly, that determining whether a new work that takes material from a copyrighted work infringes the copyright or is non-infringing “fair use” is exceedingly difficult and almost always depends on the particular facts of the case.

Cases like Rowling’s and the Seinfeld case turn, nevertheless, primarily on two issues: how much is copied and how much does the work constitute original, “transformative,” work — that is, how much is the new work something original unto itself rather than merely a repackaging of the old work. Thus, if one commenter to my April 14 post had been right — that the Harry Potter Lexicon, as its “author” had claimed, had contained substantial amounts of commentary without substantial outright copying — the Lexicon might have been non-infringing fair use. As the decision now stands, however (it may be appealed), the lexicon seemed to be too much repackaged copying and too little independent work. Certainly, that is J.K. Rowling’s view. She was quoted after the decision saying, “The proposed book took an enormous amount of my work and added virtually no original commentary of its own. … Many books have been published which offer original insights into the world of Harry Potter. The Lexicon just is not one of them.”

Negativeland’s positivity

I’ve written before here about Girl Talk.  As I wrote then, Girl Talk’s music, which consists entirely of the weaving together of samples from other recording artists, is a direct challenge to a legal and business regime that  has treated as theft any sample of any recording without permission, regardless of the size of the sample and regardless of the appropriating work’s origniality.  

Long before Girl Talk, however, came Negativeland, doing the same thing and, unlike Girl Talk, articulating intelligently along with the music the theoretical justifications for its methods.  Here, as post-modern as it gets, is Negativeland’s “No Business”:

Negativeland’s art can lead to amusing ironies.  including its confrontation with U2 or, rather, as they found out later, when they actually ran into U2’s Dave Evans (a/k/a “The Edge”), U2’s record company, which had never actually consulted with the members of U2 before taking legal action that wiped Negativeland’s “U2,” a tape collage satire of U2’s “I Still Haven’t Found What I’m Looking For,” off the face of the earth.

One may not agree with Negativeland’s stance (and they can go on about it), but it is a thoughtful and undeniably compelling one, as this excerpt one of their essays should begin to make clear:

We think it’s about time that the obvious esthetic validity of appropriation begins to be raised in opposition to the assumed preeminence of copyright laws prohibiting the free reuse of cultural material. Has it occurred to anyone that the private ownership of mass culture is a bit of a contradiction in terms?

. . . We are now all immersed in an ever-growing media environment — an environment just as real and just as affecting as the natural one from which it somehow sprang. Today we are surrounded by canned ideas, images, music, and text. . . .  Most of our opinions are no longer born out of our own experience. They are received opinions. Large increments of our daily sensory input are not focused on the physical reality around us, but on the media that saturates it. As artists, we find this new electrified environment irresistibly worthy of comment, criticism, and manipulation.

The act of appropriating from this media assault represents a kind of liberation from our status as helpless sponges . . . . Appropriation sees media, itself, as a telling source and subject, to be captured, rearranged, even manipulated, and injected back into the barrage by those who are subjected to it. Appropriators claim the right to create with mirrors.

Our corporate culture, on the other hand, is determined to reach the end of this century while maintaining its economically dependent view that there is something wrong with all this. . . .

Our cultural evolution is no longer allowed to unfold in the way that pre-copyright culture always did. True folk music, for example, is no longer possible. The original folk process of incorporating previous melodies and lyrics into constantly evolving songs is impossible when melodies and lyrics are privately owned. We now exist in a society so choked and inhibited by cultural property and copyright protections that the very idea of mass culture is now primarily propelled by economic gain and the rewards of ownership. . . .

. . . That being the case, there are two types of appropriation taking place today: legal and illegal. So, you may ask, if this type of work must be done, why can’t everyone just follow the rules and do it the legal way? Negativland remains on the shady side of existing law because to follow it would put us out of business. Here is a personal example of how copyright law actually serves to prevent a wholly appropriate creative process which inevitably emerged out of our reproducing technologies.

In order to appropriate or sample even a few seconds of almost anything out there, you are supposed to do two things: get permission and pay clearance fees. The permission aspect becomes an unavoidable roadblock to anyone who may intend to use the material in a context unflattering to the performer or work involved. This may happen to be exactly what we want to do. Dead end. Imagine how much critical satire would get made if you were required to get prior permission from the subject of your satire? The payment aspect is an even greater obstacle to use. Negativland is a small group of people dedicated to maintaining our critical stance by staying out of the corporate mainstream. We create and manufacture our own work, on our own label, on our own meager incomes and borrowed money. Our work is typically packed with found elements, brief fragments recorded from all media. This goes way beyond one or two, or ten or twenty elements. We can use a hundred different elements on a single record. Each of these audio fragments has a different owner and each of these owners must be located. This is usually impossible because the fragmentary nature of our long-ago random capture from radio or TV does not include the owner’s name and address. If findable, each one of these owners, assuming they each agree with our usage, must be paid a fee which can range from hundreds to thousands of dollars each. Clearance fees are set, of course, for the lucrative inter-corporate trade. Even if we were somehow able to afford that, there are the endless frustrations involved in just trying to get lethargic and unmotivated bureaucracies to get back to you. Thus, both our budget and our release schedule would be completely out of our own hands. Releases can be delayed literally for years. As tiny independents, depending on only one release at a time, we can’t proceed under those conditions. In effect, any attempt to be legal would shut us down.

So OK, we’re just small potato heads, working in a way that wasn’t foreseen by the law, and it’s just too problematical, so why not just work some other way? We are working this way because it’s just plain interesting, and emulating the various well-worn status quos isn’t. How many artistic perogatives should we be willing to give up in order to maintain our owner-regulated culture? The directions art wants to take may sometimes be dangerous, the risk of democracy, but they certainly should not be dictated by what business wants to allow. Look it up in the dictionary — art is not defined as a business! Is it a healthy state of affairs when business attorneys get to lock in the boundaries of experimentation for artists, or is this a recipe for cultural stagnation?