Buying art and then refusing to pay

The New York Times on Friday ran a story explaining that “Sotheby’s has filed a $16.8 million lawsuit against the art collector and Internet entrepreneur Halsey Minor for refusing to pay the auction house for three paintings he bought in May” (including “The Peaceable Kingdom and the Leopard of Serenity” by Edward Hicks (left)). According to the story, “Diana Phillips, a spokeswoman for Sotheby’s, said that Mr. Minor had told the auction house that he had not paid for the works because hewas owed money by other parties and could not afford to.” Halsey strenuously objected to the suggestion he couldn’t afford the paintings, explaining instead that he refused to go through with the sale because he didn’t know at the time of the sale that Sotheby’s had an interest in maximizing the amount he would bid because the paintings’ seller owed $11.5 million to Sotheby’s. According to the Art Law Blog, Mr. Halsey explained:

Did they have an economic interest in the painting they were showing me privately and touting, or did they not? Who knows, I still may have paid $9.6 mm for the painting, but at least I would have been able to take their scholarship/marketing in context and with a grain of salt.

When a broker shows you a home and sells you on its merits and you find out later the broker owned the home, the law has been broken and the process has been tainted. I am going to bet that when they have to finally cough up the documents and stop spouting nonsense they will have served in the dual role of auctioneer and secret undisclosed owner. And all else will have been long forgotten.

There are several problems with Mr. Halsey’s position. The first is that generally, unless a broker (of art or real estate) is acting as an agent of the buyer, the broker owes no duties to the buyer. In other words, the broker does not have any duty to explain its financial interest in the transaction. In fact, generally when you buy from a broker you know the broker is acting on behalf of the seller and that the broker’s fee will be depend on how high the selling price is. In short, a broker acting on behalf of a seller very often, if not almost always, has an interest in maximizing the sale price. He’s a salesman, and we know how to take the words of a salesman.  Sotheby’s may be high end, but the truth of the matter is that it’s full of salesman whose products happen to be very expensive art.

In addition, according to the Times story, the sale of the paintings by Sotheby’s attracted a lot of attention at the time because of the financial problems  of the paintings’ owner. It doesn’t stretch the imagination to suppose, therefore, that Mr. Halsey knew at the time of the sale that Sotheby’s had an even greater interest in the painting than a broker’s fee based on a percentage of the sale price.

Of course, whether he has the money or not Mr. Halsey may be trying to back out of a deal for an asset that, like most other assets these days, isn’t what it was worth at the height of the market (not that long ago, but a time that is rapidly fading from memory).

Sarah Barracuda? Not if Heart can help it.

Ann Wilson and Nancy Wilson posted a message Friday on their Web site condemning the use of their 1977 hit at the Republican convention. The song was played when McCain, the party’s presidential nominee, was joined onstage after the speech by his running mate, Alaska Gov. Sarah Palin. . . .  Republican officials didn’t ask for permission to use the song and would not have been given the OK if they had done so, the Wilsons said.

In a statement posted Friday on the EW.com site, the Wilsons wrote:

“Sarah Palin’s views and values in NO WAY represent us as American women. We ask that our song ‘Barracuda’ no longer be used to promote her image. The song ‘Barracuda’ was written in the late ’70s as a scathing rant against the soulless, corporate nature of the music business, particularly for women. (The ‘barracuda’ represented the business.) While Heart did not and would not authorize the use of their song at the RNC, there’s irony in Republican strategists’ choice to make use of it there.”

In the heart of his 1984 re-election campaign, Ronald Reagan made a speech in Hammonton, New Jersey, and took the opportunity to invoke the name of one of the Garden State’s favorite sons.”America’s future rests in a thousand dreams inside our hearts,” the president said. “It rests in the message of hope in the songs of a man so many young Americans admire: New Jersey’s own Bruce Springsteen.”

Reagan — or his speechwriter — was likely thinking of one song in particular: “Born in the U.S.A.,” the title cut from Springsteen’s No. 1 album of the time. . . .But look deeper, and there was another dimension to “Born in the U.S.A.” The song was the ferocious cry of an unemployed Vietnam veteran.”Down in the shadow of the penitentiary/Out by the gas fires of the refinery/I’m 10 years burning down the road/Nowhere to run ain’t got nowhere to go,” Springsteen sang in a working-class howl.The singer wasn’t amused by Reagan’s appropriation of his work. “I think people have a need to feel good about the country they live in,” he later told Rolling Stone. “But what’s happening, I think, is that that need — which is a good thing — is getting manipulated and exploited.  You see in the Reagan election ads on TV, you know, ‘It’s morning in America,’ and you say, ‘Well, it’s not morning in Pittsburgh.’” The singer, who spent much on 1984 on a huge concert tour, dedicated ‘Born in the U.S.A.’ to a union local at one stop.

Propaganda

The confusion (and, often, anxiety) that inevitably arises when confronting new and difficult problems

To allay anxiety caused by their inevitable confusion, I regularly explain to my students that any problem worthy of their professional expertise will require a period during which they do not have a clue how to solve the problem, when they feel completely confused.  I have to confess utter confusion regarding how this election will turn out.  On the one hand, a Democrat victory seems inevitable.  There is no one I know well who isn’t hurting these days.  The economy is in a shambles, prices on necessities are skyrocketing, we haven’t yet captured or killed Osama Bin Laden, Afghanistan is in chaos, what “victory” realistically constitutes in Iraq remains a mystery (do we really expect to walk out of their with a strong and democratic ally?) . . . I could go on.

At the same time, I would’ve been astounded during most of my life to think the U.S. would elect a black as President unless he happened to be a conservative Republican.  And my belief that a majority of U.S. voters would choose a Democrat this year runs up against that unshakeable feeling.  There are certainly people who will say their vote is based on race (and anyone who says otherwise really is out of touch with certain segments of the U.S.), but they are in a minority.  Others claim astonishment that people think their intentions are based on race even when all indications are otherwise.  Representative Lynn Westmoreland claims he is astonished that calling Barack and Michelle Obama “uppity” would be taken as a racist comment.

Others speak in a code maybe they themselves don’t realize is racist.  As reported in last week’s Cleveland Jewish News, a Cleveland mental health counselor, for example, is “’concerned not so much about Obama the man, but the influences he might be subjected to from Muslims. I know he was brought up as a Christian, but both his father and stepfather were Muslim, and there has to be some influence there,’ she maintains.  Although she also has serious reservations about McCain, she is ‘haunted’ by her concerns about Obama.’”

And then there are the people who’s financial motivations are difficult to separate from other motivations.  My son’s doctor yesterday asked me what I thought of Wednesday night’s Republican convention.  I said I thought it was “ugly.” He told me he thought it was excellent and that he doesn’t like “the people around Obama.”  Then he turned to my son and said, “You’re father’s a liberal.  He wants to make a lot of money and give it all away.”

I bit my tongue and stopped myself from saying, “Your doctor’s a conservative.  He wants to make a lot of money and keep it all for himself.”  But what do I expect from a loyalist to that a party that fraudulently claims Obama will will impose “painful tax increases on working American families” when in fact, as reported accurately by FactCheck.org, “Obama proposes to cut taxes for most individuals (81.3 percent of all households would get a tax cut), while raising them only for a relative few at the top”?

It’s difficult to separate people’s economic motivations from their more visceral motivations.  I can almost understand the people who make a lot of money and do not want to shoulder a fair burden of paying for the infrastructure, services, and schools necessary to a society that allows them and others to do so, but I cannot understand people like Mitt Romney (“It’s time for the party of big ideas, not the party of Big Brother!“) and Rudy Giuliani, the former mayor of New York City (“I’m sorry that Barack Obama feels that her hometown isn’t cosmopolitan enough. I’m sorry, Barack, that it’s not flashy enough.”). Check that — I can understand Rudy.  I once worked with Rudy.  I remember sitting across a desk from him and his eyes glazing over as I explained the results of legal research I had done for him.  His chief assistant was in the room, furiously taking notes.  I knew the assistant was the person I was reporting to while we were all pretending I was reporting to Rudy.  Rudy is a mediocre person wrapped in a remarkable amount of ambition.  I suspect Romney must simply be the same.  

The Republicans are, undeniably The Party in Power, Running as if it Weren’t.

Where will all of this leave us in November?  I don’t have a clue.  I need to follow the advice that I give to my students and not let this utter confusion cause me too much anxiety.

The wars are over! The wars are over!

Interpretation, of course, is a creative endeavor, whether it’s Biblical hermeneutics or statutory interpretation. Last week, the United States District Court for the District of Massachusetts in U.S. v. Prosperi (pdf) needed to determine whether the term “war” in a federal statute includes the conflicts in Iraq and Afghanistan. Interestingly, the court found that they are not now “wars,” though they “were.” The defendant was arguing that they never were “wars,” that Congress intended the statute (which stops the running of the statute of limitations applicable to the crime the defendants were being tried for) to apply only to conflicts in which Congress had declared war. Congress has authorized the President to use force in Afghanistan and Iraq but never declared war.

The court determined, essentially, that the conflicts in Afghanistan and Iraq were “wars” because they constituted armed conflicts of sufficient size and scope. In essence, they were wars because they looked like wars, talked like wars, and walked like wars.

The court also determined, however, that the wars have ended. The court had to do so because under the statute the applicable statute of limitations begins to run again “three years after the termination of hostilities as proclaimed by the President . . . .” The court noted that it is very unclear when these wars ended or will end: “Traditionally, the end of a war is marked by the signing of a formal peace treaty. However, formal surrenders like those of Germany and Japan at the end of World War II, like formal declarations of war, are the modern exceptions.” The court also admitted that “a strong case can be made, given the continuing expenditures and loss of life in Iraq and Afghanistan, that the United States remains at war.” Nevertheless, the court finally decided the wars ended, respectively, with the recognition of the government of Hamid Karzai in Afghanistan and with Bush’s “Mission Accomplished” speech in Iraq:

On December 22, 2001, the United States formally recognized and extended full diplomatic relations to the new government of Hamid Karzai.37 That recognition signaled the cessation of a state of war with Afghanistan. Accordingly, the statute of limitations with respect to the Afghan conflict, expired on December 22, 2004. Similarly, on May 1, 2003, President Bush, while aboard the USS Abraham Lincoln, proclaimed that “[m]ajor combat operations in Iraq have ended. In the Battle of Iraq, the United States and our allies have prevailed. And now our coalition is engaged in securing and reconstructing that country.” Consequently, with regards to the Iraq conflict, the statute of limitations expired on May 1, 2006. (footnotes omitted)

I thought you’d like the good news.

p.s. The government apparently argued, but not very strenuously, that the ongoing “war on terror” constitutes a war as well. Of course, that would mean we’ll forever be at war. It’s not the first time the Bush Administration has made this argument; it has done so continuously since 2001. The court, like any body I’ve heard of presented with the argument, didn’t take it seriously:

At the hearing on the motion, there was also discussion of a global “war” on terrorism, waged principally against Osama bin Laden and al Qaeda. The use of the metaphor of war to describe the struggle against terrorism has been criticized. See Sir Adam Roberts, The ‘War on Terror’ in Historical Perspective, 47 SURVIVAL 101-130 (Summer 2005). I do not understand the government to be pressing the argument that the United States is “at war” with al Qaeda, at least in any traditional legal sense.

Just because most people like it doesn’t mean you have to

I asked last night what it is that makes Barack Obama and not John McCain an “elitist,” and what I’ve figured out is that it’s a stupid question that, like the ad hominem fallacy, tries to avoid the issues we really need to think about.  From Butterflies and Wheels:

But ‘elitists’ don’t have a monopoly on hidden agendas and invidious motives. One-upmanship, jockeying for position, ressentiment, self-righteousness, the thrills of disapproval and condescension and getting it right while others get it wrong – those are all equal-opportunity pleasures. Anti-elitists get their own little frissons from saying You’re a snob and I’m not. In fact, of course, it’s impossible to think anything is right as opposed to wrong, that any attitude, stance, commitment, political view, idea is better than any other, without opening the door to approval of self and disapproval of others. Quite, quite impossible. If we’re too afraid of being smug and superior and self-righteous to have any opinions at all, we just become vacuous spineless shapeless nothings, and we can never improve or correct or change anything. What could be a more conservative position than that? No, abdication of judgment is neither possible nor desirable, we have to be clear about that, and just settle down to doing it well instead of badly. Terry Eagleton puts it this way:

“We should, I think, give no comfort to those who in the name of a fashionable anti-élitism would ignore real evidence of cultural deprivation, though we should remember of course that there is no single index of cultural flourishing or decline.”

The elitism epithet works to inhibit judgment because it is so a priori. It assumes, without argument, that to say that any popular book or movie or piece of music or tv show is bad is a thought-crime, because doing so second-guesses majority opinion; it says majority opinion is wrong. Democracy is expanded from the political realm to that of ideas and art, and taken to mean that the popular is automatically good and the good is automatically popular. Put like that it looks insane, but what else does the elitist epithet mean?

Sad to say, if we’re going to think at all, we have to be able to think for ourselves. De Tocqueville pointed out how difficult this can be in a democracy, and he scared the hell out of John Stuart Mill, who pointed out the difficulty and the necessity even more sharply. Both the difficulty and the necessity are still with us.

With whom would you prefer a lager?

An often effective method of persuasion is to change the topic from what the argument is about to who the arguer is. It’s known as a fallacy because, according to the Nizkor Project, “the character, circumstances, or actions of a person do not (in most cases) have a bearing on the truth or falsity of the claim being made (or the quality of the argument being made)”: the topic in the presidential race isn’t what the President will do, it’s what kind of person he is. As Crooks & Liars pointed out last Spring

The data is clear. If the election is about the economy, health care and Iraq, John McCain cannot become the 44th president. Only if the GOP succeeds once again in transforming the race into a media medley about lapel pins, angry ministers and Muslim-sounding middle names can the Republicans hope to maintain their hold on the White House.

And so, [w]hile their man [or woman], be it George W. Bush or John McCain [or Sarah Palin], is the ‘authentic’ guy [or girl] you’d “’ike to have a beer with,’ the GOP drives the media conventional wisdom that paints the likes of Al Gore, John Kerry and now Barack Obama as effete, out-of-touch elitists whose positions change with the wind.”

So it shouldn’t be a surprise that today the Washington Post quoted Rick Davis, campaign manager for John McCain’s presidential bid, claiming that “[t]his election is not about issues,” said Davis. “This election is about a composite view of what people take away from these candidates.”

[This leaves aside to me a truly astonishing question: what is it that makes Barack Obama an elitist but not John McCain?]

The creative mind is the one that can master these methods, take them apart when they’re being used against him, and come back with an even more effective strategy.

But what would I know? I blog about law and creativity, and I’m an academic who used to work with a major law firm and at that time lived in Manhattan. I must be an out-of-touch elitist.

Segways.

Hey, maybe I should sue for copyright infringement!

We all, always, are figuring out the stories the world is telling us.

Lawyers understand better than most that putting together a story in one’s mind is the most common everyday act we all engage in. People speak of “proof” and “facts” as if they’re certainties, but lawyers know that “proof” is merely evidence that can only be understood in light of other evidence and that “facts” are not hard and fast things inferred from the evidence. As I tell my students, “We never have God’s videotape.”

But we need to understand the evidence we confront as hard and fast enough to support the decisions we always have to make, whether we’re jurors or just ordinary people making the decisions ordinary people make all the time. And we’re not bad at it; we come to the best story we can given the facts and move forward. The process may almost be like natural selection: our decisions about how to interpret the evidence we have are tested by the consequences those decisions entail, and so our interpretations (we hope) get better as we see our decisions succeed and fail.

In short, the world is a story just like a news story, a movie, or a novel is. And those of us who engage in storytelling know more than a few things about how to put together the evidence to sway our audience in the way we want our audience to be swayed. I wrote the week before last about one pattern humans find compelling.

There are many, many more effective methods of telling stories. Tell the story from the point of view of the person with whom you want your audience to identify. Move what you emphasize to the front of your story, to the front of your paragraphs, and to the front of your sentences. Spend more time on what you want to emphasize. Stay credible. Take what you want to de-emphasize and bury it in the middle of your story, in the middle of a paragraph, and in the middle of a sentence. Better yet, surround that “bad” evidence by good evidence at the beginning and ends of those paragraphs and sentences. Do mention the “bad” facts (if you don’t, some adversary will, which will considerably damage your credibility), but mention them as briefly as possible.

I could go on, but that’s enough for today.

One last thing: how do you decide about the evidence regarding Sarah Palin?

Is she a true agent of change? She’s taken on the establishment in traditionally corrupt Alaska to become one of our ruling party’s rising stars and walks the walk when the real world we all struggle with confronts her. She ran for governor and won against the former Senator who had appointed his own daughter to succeed him in the Senate and is more popular with her constituents than any other governor is among his or hers. When she is faced by the kind of unanticipated smack in the face Reality often doles out — as she has been by her daughter’s pregnancy, a private matter that anyone could face — she shows that she stands by her principles. She opposed the “Bridge to Nowhere,” the project which is synonymous with business as usual in Washington, and she is a political enemy of the corrupt Senator from her own party, Ted Stevens. In short, John McCain showed he really is a true maverick in choosing her.

Or is she this year’s Thomas Eagleton and Geraldine Ferraro rolled into one? She’s a charismatic Christian creationist who would outlaw abortion even in cases of rape and incest. She was a member of a political party that stands for the secession of Alaska, the abolition of all property taxes, and the privatization and exploitation to the hilt of all public lands within the new country. She was elected governor of a state so unpopulated she only needed 115,000 votes to win, and so, while she may be popular there, her popularity hardly shows she is representative of “real” Americans. How could it? She has been governor of that state for less than two years. She believes in abstinence-only education, yet the ineffectiveness of that policy in fighting teen pregnancies is highlighted by her own 17 year old daughter’s pregnancy. She supported the “bridge to nowhere” before she opposed it. She didn’t “take on” the corrupt Ted Stevens, as Lindsey Graham claimed, but, rather, led a major fundraising effort for him. She’s even under investigation for pressuring Alaska’s commissioner of public works to fire the state trooper who was engaged in an acrimonious custody battle with her sister. In short, she is Exhibit A for the defects in John McCain’s decision-making and judgment.

Addendum: from Hilzoy at Obsidian Wings: “Sarah Palin was not registered as a member of the Alaska Independence Party, though TPM Muckraker found that her husband was.“