For the weekend: Homer says, “It’s the law.”

Supreme Court dampens hysteria over alleged registration irregularities

On the election news front, from SCOTUS Blog:

The Supreme Court on Friday lifted a federal judge’s order that would have required Ohio election officials to set up new procedures to verify voter registration across the state in the weeks before the Nov. 4 balloting.  The unsigned (“Per Curiam”) order is here.  The order blunts an effort by the Ohio Republican Party to gain access to registration data that would enable it to challenge voters’ eligibility at polling places.

This decision removes the threat, reported in this morning’s New York Times, that “[m]ore than 200,000 registered Ohio voters may be blocked from casting regular ballots on Election Day because of a federal appeals court decision on Tuesday requiring the disclosure of lists of voters whose names did not match those on government databases . . . .”

How can something new come entirely from old things?

I’ve written before (here and elsewhere) about Girl Talk, the name under which Greg Gillis records and performs his aural collages, made up of hundreds of samples of pop recordings re-worked by him through contemporary technology into what can only be considered new songs. Gillis continues to get attention as he makes his way on tour across the country, this week in Tuscon and Dallas. As I have previously pointed out, on its face, Gillis’s work seems to run afoul of legal authority which holds that the use for commercial benefit of any recorded sample, no matter how brief, constitues copyright infringement. As the Tuscon Weekly points out, Gillis is a little tired of hearing about this:

Gillis says he’s tired of the media characterizing his music as a “lawsuit waiting to happen,” yet he admits: “There’s definitely a component there of seeming like an outlaw, and I think that appeals to some people.” Girl Talk’s appeal, perhaps, speaks to the preoccupations of a new generation raised online–and he may be just the sort of celebrity it fosters.

And indeed, Gillis samples such litigation-happy groups as Metallica. Nevertheless, I suspect Metallica will not sue Gillis. Why? Because lawyers no you don’t sue people who have the strongest case on the question of law you are concerned about. In other words, Gillis poses the greatest risk to the legitimacy of the cases ruling that any sample, no matter how brief, is an infringement. Metallica, thus, would rather sue someone who sampled their music in some ham-fisted way that plainly did exploit the value Metallica has created. Metallica would win the lawsuit against such a defendant.

Gillis, however, really does seem to have transformed his raw materials into something entirely new. (You can hear for yourself by downloading his album here, for any price (even zero — itself an interesting move in legal terms).)

In fact, whether a work is “transformative” is, exactly, what is determinative in deciding whether its appropriation of copyrighted work is fair use or infringement. No one is going to listen to a Girl Talk “song” that samples a Metallica song as a substitute for the Metallica song. The Girl Talk song is something entirely new, even if it is made up of things entirely old. This focus on the “transformative nature” of an appropriating work comes from one of those rare law review articles that actually have an impact on the real world, although in this case it was by a judge, Pierre Leval.

The Chief Justice wishes he were Dashiell Hammet.

Coincidentally, yesterday in class a student asked me how legal writers use narrative to persuade audiences.  I gave the driest answer possible: it’s telling the facts in a way that swings the audience your way.  There’s no such thing as an objective story.  If you read a judicial opinion, as soon as the judge writes the facts it becomes apparent from the way the story is shaped which way he’s ruled.  But yesterday the Chief Justice John Roberts engaged in storytelling I don’t think any lawyer other than the Chief Justice could get away with.  Seven of the justices of the Supreme Court refused to hear an appeal from the Pennsylvania Supreme Court’s reversal of the conviction of a man for possession of a controlled substance.  The Pennsylvania Supreme Court had held that there was on the grounds that had not been “probable cause” to arrest the man.  In his dissent from the decision, Roberts wrote as follows:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.  Devlin spotted him: a lone man in the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack [cocaine] in the guy’s pocket. Head downtown and book him. Just another day at the office.

How do lawyers solve problems? Any and every way they can.

What problem do I need creative solutions to? I’m designing a course for the school I’m visiting this year that is intended to bring together for the first year students everything they’ve been learning in all their courses in a way that teaches them to solve problems the way lawyers do. How do lawyers solve problems? The following description, from a course intended to do similar things at Stanford, says it well:

A client comes to a lawyer rather than, say, a psychologist, investment counselor, or business advisor because she perceives her problem to be essentially legal in nature. But most real world problems do not conform to the neat academic boundaries that define and separate different bodies of knowledge, and a well-trained lawyer must be able to counsel clients beyond the confines of his or her technical legal expertise. Indeed, most clients do not expect their lawyers to confine themselves to the law, but rather expect a lawyer to integrate legal considerations with the other components of their problem. Thus, much of a lawyer’s work involves assisting clients in solving non-legal problems. The solution may be constrained, facilitated, or even driven by the law, but they often call for judgments, common sense, and even expertise not particularly of a legal nature. Even when legal questions dominate, their resolution often calls for problem-solving beyond the analysis of appellate decisions that characterizes most law school instruction. This course endeavors to prepare students for their roles as creative problem solvers. It focuses on these issues, among others: understanding a probabilistic factual world, including assessing correlation and causation; making decisions with tradeoffs under conditions of uncertainty; understanding individual and social phenomena that can conduce to or impede effective decision-making.

My problem, of course, is that articulating what I want to do and actually figuring out how to do it for 4 sections of approximately 50 first year law students are two entirely different things.

The rhetoric of naming.

Don’t you just love the names that legislatures give their laws? Like 2003′s “Clear Skies Act,” which in fact weakened the Clean Air Act’s provisions against air pollution. Well, yesterday the President signed into law the “Pro-IP Act,” which, if it did what its name says it does, would advance the purposes of intellectual property laws. But all the “Pro-IP Act” does is increase substantially the already substantial penalties for piracy of copyrighted and patented products. The purpose of copyright, according to the U.S. Constitution, is to promote “[t]o promote the progress of science and useful arts.” Yesterday’s post should make clear I don’t think increased penalties for downloading music or posting videos with copyrighted music is the kind of change that advances copyright’s purposes. But if Congress says so, it must be so, right?

Is there evidence of voting fraud? Not if you look at all the facts.

Lawyers are skeptics not because they are innately skeptical but because they are trained by experience not to trust the first plausible explanation of a given set of facts.

ACORN is very much in the news these days. As the New York Post reports, “The vote of Darnell Nash, one of four people subpoenaed in a Cuyahoga County probe of ACORN’s voter-registration activities, was canceled and his case was turned over to local prosecutors and law enforcement, Board of Elections officials said yesterday. Nash had registered to vote repeatedly from an address that belonged to a legitimately registered voter, officials said during a hearing at which the subpoenaed voters were to testify.”

News like this provokes Sarah Palin to declare, “The left-wing activist group, ACORN, is now under investigation for voter registration fraud in a number of battleground states… We can’t allow leftist groups like ACORN to steal this election.”

Let’s take a look at this news. First, as my colleague Jonathan Adler points out, “Of course registration fraud and actual voter fraud are not the same thing.” (emphasis added) In other words, the fact someone is fraudulently registered does not mean that he will or can get away with fraudulently voting. In fact, there is no evidence in recent history of any voter fraud involving voting by fraudulently registered voters. Jon would counter that registration fraud makes it impossible or at least very difficult to prove voting fraud.

First, I’m not sure why that’s true. Voting fraud investigations would look into whether people who had voted were properly registered. The same evidence available in the prosecution of registration fraud would therefore be available.

Second, it’s at least suspicious that the eruption of investigations and prosecutions of alleged registration fraud shortly before an election follows so closely the pattern that David Iglesias, the former U.S. Attorney in New Mexico, points to as the background of his firing by the Bush administration. Having investigated such allegations and found them inadequate to support any prosecution for voting fraud, Iglesias was fire, apparently for not following the Republican script. Now the Mukasey Justice Department appointed a special prosecutor to look into the firing of Iglesias and several other U.S. Attorneys.

Iglesias has explained that he was pressured to bring these types of voter fraud claims by Republicans in New Mexico shortly before elections in order, in his view, to influence the elections. He investigated the claims and concluded there was no basis for prosecution. Is there suddenly now evidence for identical prosecutions?

So is there widespread work to get enough fraudulent voters on the rolls to elect Obama? I doubt it. In fact, I am prepared to say, no way.

Addendum:

U.S. Department of Justice crime statistics cast doubt on the existence of widespread voter fraud. According to a report by the Justice Department’s Criminal Division on prosecutions between October 2002 and September 2005, the Justice Department charged 95 people with “election fraud” and convicted 55. Among those, however, just 17 individuals were convicted for casting fraudulent ballots; cases against three other individuals were pending at the time of the report. Further, on April 12, 2007, The New York Times reported, “Five years after the Bush administration began a crackdown on voter fraud, the Justice Department has turned up virtually no evidence of any organized effort to skew federal elections, according to court records and interviews.”

Additionally, a 2007 report titled “The Truth About Voter Fraud” by New York University’s Brennan Center for Justice stated: “[W]e are aware of no recent substantiated case in which registration fraud has resulted in fraudulent votes being cast”:

There have been several documented and widely publicized instances in which registration forms have been fraudulently completed and submitted. But it is extraordinarily difficult to find reported cases in which individuals have submitted registration forms in someone else’s name in order to impersonate them at the polls. Furthermore, most reports of registration fraud do not actually claim that the fraud happens so that ineligible people can vote at the polls. Indeed, we are aware of no recent substantiated case in which registration fraud has resulted in fraudulent votes being cast.

Lessig on Copyright Law: 5 ways to improve it.

Starting his article with an account of the silliness Universal Music Group visited upon Stephanie Lenz, Lawrence Lessig makes a compelling case that the existing regime of copyright laws subverts its very purposes — motivating creativity. Accordingly, Lessig proposes the following revisions to our laws:

1. “Where the creativity is an amateur remix, the law should leave it alone. It should deregulate amateur remix.”

2. “Deregulate ‘the copy:’ Copyright law is triggered every time there is a copy. In the digital age, where every use of a creative work produces a “copy,” that makes as much sense as regulating breathing. The law should also give up its obsession with “the copy,” and focus instead on uses — like public distributions of copyrighted work — that connect directly to the economic incentive copyright law was intended to foster.”

3. “Simplify: If copyright regulation were limited to large film studios and record companies, its complexity and inefficiency would be unfortunate, though not terribly significant. But when copyright law purports to regulate everyone with a computer, there is a special obligation to make sure this regulation is clear. It is not clear now.”

4. Restore efficiency: “[W]e should return to the system of our framers requiring at least that domestic copyright owners maintain their copyright after an automatic, 14-year initial term.”

5. “Decriminalize Gen-X: The war on peer-to-peer file-sharing is a failure. After a decade of fighting, the law has neither slowed file sharing, nor compensated artists. We should sue not kids, but for peace, and build upon a host of proposals that would assure that artists get paid for their work, without trying to stop ‘sharing.’”

How do we explain human beings?

Annette Gordon-Reed, the author of The Hemingses of Monticello: An American Family, is a lawyer as well as a historian. The two avocations mesh well, especially in trying to give coherence to seemingly incoherent ideas. As pointed out in Newsweek, for example, people have floundered in the face of the seemingly inexplicable, including “the idea that Jefferson, a lifelong proponent of emancipation, could own slaves and sustain an intimate relationship with a woman who was not only his property but his dead wife’s half-sister.” Gordon-Reed’s training as a lawyer is the ideal preparation for developing persuasive explanations for what seems “crazy” because when it gets down to it we’re all a bit crazy:

“‘The first thing you learn in law school is people are crazy,’ says [Gordon-Reed], who also teaches history at Rutgers and law at New York Law School. ‘They’ll come into your office and explain their motivation, and it will be totally a lie. They don’t even understand themselves what their motivations are. It’s not all going to fit.’ Historians may think that because their subjects are dead, ‘you don’t have to deal with the consequences of their shattered lives if you’re not for real.’ Lawyers don’t have this luxury. ‘We’re training people to deal with people’s lives. Somebody’s going to go to jail, somebody’s going to lose a child. You have to be for real.’ Which may be how Gordon-Reed takes the stuff of Sally Hemings’s life-the quotidian and the epic-and makes it indelibly real.”

The life of the law is a life of art

Last night, I came back across the words(pdf) of my former professor, James Boyd White, that express eloquently my view of the common ground shared by artists and lawyers:

As I conceive it, the life of the law is . . . a life of art, the art of making meaning in language with others. Its goal, like that of other arts always imperfectly attained, is the integration into meaningful wholes of the largest and most contradictory truths – the incorporation into the case of what can be said on both sides of it, the recognition in our discourse of other ways of talking – all under the ruling requirement that what we say makes sense. The lawyer must know what the literary person knows, that he or she is always one person speaking to others in a language that is contingent and imperfect. And the excellence of mind required of the lawyer, like the excellence of the composition the lawyer makes, is integrative: a putting to work in the same text of as many of one’s resources and capacities as possible in an meaningful way.

What is obscene?

Glenn Greenwald points out an interesting irony. A federal judge last week sentenced Paul Little to nearly 4 years in prison for distributing a porn film the court determined was “obscence” despite the fact it involved only consenting adults and was distributed only to consenting adults. Little’s attorneys argued that the film couldn’t be obscene because it involved no pain to the participants. The judge rejected the argument, writing, “This is clearly degrading, clearly humiliating and intended to be so.”

The Bush Department of Justice makes it a point to prosecute producers of adult pornography. The irony, of course, is that this is the same Department of Justice that argued that “torture” does not include any conduct that does not cause “the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” To compound the obscenity, “our Congress retroactively immunized anyone and everyone in the Government who may have been involved in any state-sanctioned line-crossing behavior even after the lines were radically re-drawn”

1984 Redux?

As explained in this case study (pdf):

In early 1984, Pennzoil and Getty Oil agreed to the terms of a merger. But before any formal documents could be signed, Texaco offered Getty Oil a substantially better price, and Gordon Getty, who controlled most of the Getty shares, reneged on the Pennzoil deal and sold to Texaco. Naturally, Pennzoil felt as if it had been dealt with unfairly and immediately filed a lawsuit against Texaco alleging that Texaco had interfered illegally in the Pennzoil?Getty negotiations. Pennzoil won the case; in late 1985 it was awarded
$11.1 billion, the largest judgement ever in the U.S. An appeals court reduced the judgement by $2 billion, but interest and penalties drove the total back up to $10.3 billion.

History seems to be repeating itself in the battle between Citigroup and Wells Fargo over who will buy Wachovia. As reported in today’s New York Times, “Wachovia was on the verge of collapse last week until Citigroup salvaged it in a government-backed deal that was upended Friday, when Wells Fargo made its startling bid. The announcement touched off a whirlwind of legal activity and angry recriminations by Citigroup . . . .”

Lawyers for Citigroup and Wells Fargo argued at a judge’s home on Saturday evening, Citigroup’s lawyers in person and Wells Fargo’s by telephone. As of now, the status of the situation is very much up in the air, though the Times hardly minimizes the dispute’s importance: “At stake is the shape of the American banking system, which is being redrawn almost weekly as a handful of large players merge, and the government’s own standing to broker future bank rescues . . . . .