Bail out the Big Three!

Thanks to the Cleveland Plain Dealer for this and for this, from Thomas Suddes:

It’s hard to imagine anything more disgusting than the blowhards who claim that consigning Chrysler, Ford and General Motors to Bankruptcy Court would be a good thing.

In fact, cutting Big Three workers’ wages would also cut spending at supermarkets and malls, shrinking many other Ohio paychecks, too.

And benefit cuts would add clients to Ohio’s Medicaid tab, which bulges now like a glutton’s waistline.

Critics of a Big Three bailout relish double-talk – “magic of the market,” “creative destruction” – because it hides the cruel, real-world truth. A collapse of the Big Three would destroy Ohio families and towns, especially in Greater Cleveland and the Dayton area. Ohioans in Twinsburg, Lordstown, Warren, Moraine and a score of other towns deserve better from their country than to be declared human surplus.

According to data from the state Department of Development, almost 15,000 Ohioans work for General Motors, about 11,000 for Ford, almost 7,000 for Chrysler and 6,000 for Delphi, the parts manufacturer. If you want to argue that losing or “downsizing” those payrolls would be no big deal, try to sell that story elsewhere. I’m from Youngstown and my father worked in a steel mill. So did the whole neighborhood. Correction: What was the neighborhood. End of story – a heartbreaking story.

In the 1970s, Wall Street and Washington caused American steel’s troubles, but the “Free to Choose” economic cult predictably blamed the United Steelworkers. Union members had the gall to prefer a living wage and decent benefits to company-town serfdom. Yet the steel those “overpaid” men and women produced – not wage cuts dreamed up by economists with lifetime jobs – is what built Ohio.

Sure, there’s more in play politically in the Detroit bailout stalemate than campaign contributors’ 30-year war on the living standards of American working families.

As Gerald F. Seib wrote so eloquently in Tuesday’s Wall Street Journal, congressional factors also are at work. First, “Western, environmentally minded [Democratic] leaders . . . don’t see the auto companies as particularly important to their region, or friendly to their green causes.” Second, among congressional Republicans, “foreign-owned auto plants concentrated in the Republican-leaning . . . South . . . stand to benefit if the Big Three American companies go down.”

Suddes is right that a bankruptcy consigns Ohio (and Michigan, and several other states — but I live and work in Ohio and Michigan) to economic disaster.  In bankruptcy, the debtor delays and reduces its payment of its debts, and it cancels contracts without any liability.  In other words, if any of the Big Three go into bankruptcy, every business that services the auto industry directly or indirectly will be jeopardized.  Perhaps these businesses will be reconsituted somewhere and some way in the future, but in the meantime entire cities, towns, and states will be uprooted.  Richard Shelby of Alabama declares in the Senate that we can’t bail ou the Big Three.  He doesn’t mention the benefit that would bring to the non-union, Japanese and German auto makers with factories in his state. Some people do mention the United Auto Workers, as if its mere existence is proof of corruption and ineptness, but they don’t mention the enormous concessions the UAW has made in the past several years.  It is time to help out Detroit and the entire surrounding Great Lakes region.

Thankgiving Weekend Music Break

Arlo Guthrie: Alice’s Restaurant

The Power to Pardon and Turkeys

The President and governors have the power to pardon and grant other relief and/or immunities from criminal prosecution.  The web site Pardon Power reports the news on the exercise of these powers.  As it explains, a “pardon” is

The removal of all disability or punishment. Pardons may be granted before or after conviction. Today, they are usually granted in order to restore civil rights (the right to vote, hold public office, participate in a jury, own a firearm, etc.). Pardons can have conditions attached. There has been a steady decline in the granting of pardons since 1900 whether one looks at the raw number of pardons, the percentage of applications that result in pardons or the percentage of presidential clemency decisions which result in pardons. There has, however, been a more accelerated decline since the late 1960s.

The site also defines on its home page the terms amnesty, clemency, commutation, expungement, remission, reprieve, respite, and sealing, all powers that executives can exercise unilaterally to relieve the burdens of criminal prosecution, whether that prosecution is a potential one, an ongoing one, or a completed one.

Each year the President and some governors engage in a “pardon” of a turkey, which I suppose is intended to deflect our minds from the annual mass sacrifice of turkeys for our national day of gratitude.  This year, as seattlepi.com reports, Sarah Palin’s pardon turned into an seeming parody of itself:

Moments after pardoning a Thanksgiving turkey, she gives a news conference at a turkey farm – unaware that apparently unpardoned birds are being executed behind her. MSNBC’s captions include, “Turkeys Die as Governor Palin Takes Questions from the Media,” “Gov. Sarah Palin Keeps Talking While Turkeys Get Slaughtered Behind Her,” and “Gov. Palin Apparently Oblivious to Turkey Carnage over Her Shoulder.”

As the Gothamist notes, this is “probably why the White House Turkey Pardon is done at 1600 Pennsylvania Avenue and not at a slaughterhouse.” Then again, another law professor writes: “Deal with it, you candy-asses. If you eat meat, something like that is going on in the background for you too.”  A Palin supporter writes, “After she’s sworn in in 2013, I hope President Palin arranges for a ritual turkey slaughter to be going on behind her at every press conference,”  Another: “Farmers kill animals. Then they sell them. Grocery stores package them. Meat-eaters buy them and eat them. This is no big deal – except if you reside in the Ivory Tower or the David Brooks/Kathleen Parker/Arianna Huffington/Daily Kos intellectual complex.”  Still another likes the suggestion that Palin “did it on purpose. Tough call: I’m sure she wasn’t fazed by the sight, but it certainly isn’t above her to undermine the stupidity of the ‘turkey pardon’ tradition. If she was having a little passive-aggressive fun, she’s certainly earned it.

From a different point of view, as Joe Windish observes, Michael Pollan wrote in The Omnivore’s Dilemma:

Sometimes I think that all it would take to clarify our feelings about eating meat, and in the process begin to redeem animal agriculture, would be to simply pass a law requiring all the sheet-metal walls of all the CAFOs [concentrated animal feeding operation], and even the concrete walls of the slaughterhouses, to be replaced with glass. If there’s any new right we need to establish, maybe this is the one: The right, I mean, to look. … The industrialization-and brutalization-of animals in America is a relatively new, evitable, and local phenomenon: No other country raises and slaughters its food animals quite as intensively or as brutally as we do. No other people in history has lived at quite so great a remove from the animals they eat. Were the walls of our meat industry to become transparent, literally or even figuratively, we would not long continue to raise, kill, and eat animals the way we do.

The turkey pardoned this year by the President, incidentally, is known as the “National Thanksgiving Turkey.”  This year’s National Thanksgiving Turkey, according to the White House, was  flown after its pardon “first class to Disneyland Resort in Southern California, where he [was] the grand marshal of ‘Disney’s Thanksgiving Day Parade.’ After the parade, guests will be able to visit the turkey in Frontierland section.”

Rhetoric, hot air, and powerful speech

Charlotte Higgins in the Guardian writes about Barak Obama’s power as a speaker and its connections to ancient oratory, Obama’s training as a lawyer, and the connections between writing and speaking:

There have been many controversial aspects to this presidential election, but one thing is uncontroversial: that Obama’s skill as an orator has been one of the most important factors – perhaps the most important factor – in his victory. The sheer numbers of people who have heard him speak live set him apart from his rivals – and, indeed, recall the politics of ancient Athens, where the public speech given to ordinary voters was the motor of politics, and where the art of rhetoric matured alongside democracy.

Obama has bucked the trend of recent presidents – not excluding Bill Clinton – for dumbing down speeches. . . .Though he has speechwriters, he does much of the work himself. (Jon Favreau, the 27-year-old who heads Obama’s speechwriting team, has said that his job is like being “Ted Williams’s batting coach.”) . . .

More than once, the adjective that has been deployed to describe Obama’s oratorical skill is “Ciceronian”. Cicero, the outstanding Roman politician of the late republic, was certainly the greatest orator of his time, and one of the greatest in history. A fierce defender of the republican constitution, his criticism of Mark Antony got him murdered in 43BC.

During the Roman republic (and in ancient Athens) politics was oratory. In Athens, questions such as whether or not to declare war on an enemy state were decided by the entire electorate (or however many bothered to turn up) in open debate. Oratory was the supreme political skill, on whose mastery power depended. Unsurprisingly, then, oratory was highly organised and rigorously analysed. The Greeks and Romans, in short, knew all the rhetorical tricks, and they put a name to most of them.

It turns out that Obama knows them, too. One of the best known of Cicero’s techniques is his use of series of three to emphasise points: the tricolon. (The most enduring example of a Latin tricolon is not Cicero’s, but Caesar’s “Veni, vidi, vici” – I came, I saw, I conquered.) Obama uses tricola freely. Here’s an example: “Tonight, we gather to affirm the greatness of our nation, not because of the height of our skyscrapers, or the power of our military, or the size of our economy …” In this passage, from the 2004 Democratic convention speech, Obama is also using the technique of “praeteritio” – drawing attention to a subject by not discussing it. (He is discounting the height of America’s skyscrapers etc, but in so doing reminds us of their importance.)

One of my favourites among Obama’s tricks was his use of the phrase “a young preacher from Georgia”, when accepting the Democratic nomination this August; he did not name Martin Luther King. The term for the technique is “antonomasia”. One example from Cicero is the way he refers to Phoenix, Achilles’ mentor in the Iliad, as “senior magister” – “the aged teacher”. In both cases, it sets up an intimacy between speaker and audience, the flattering idea that we all know what we are talking about without need for further exposition. It humanises the character – King was just an ordinary young man, once. Referring to Georgia by name localises the reference – Obama likes to use the specifics to American place to ground the winged sweep of his rhetoric – just as in his November 4 speech: “Our campaign … began in the backyards of Des Moines and the living rooms of Concord and the front porches of Charleston”, which, of course, is also another tricolon. . . .

It is not just in the intricacies of speechifying that Obama recalls Cicero. Like Cicero, Obama is a lawyer. Like Cicero, Obama is a writer of enormous accomplishment – Dreams From My Father, Obama’s first book, will surely enter the American literary canon. Like Cicero, Obama is a “novus homo” – the Latin phrase means “new man” in the sense of self-made. Like Cicero, Obama entered politics without family backing (compare Clinton) or a military record (compare John McCain). Roman tradition dictated you had both. The compensatory talent Obama shares with Cicero, says Catherine Steel, professor of classics at the University of Glasgow, is a skill at “setting up a genealogy of forebears – not biological forebears but intellectual forebears. For Cicero it was Licinius Crassus, Scipio Aemilianus and Cato the Elder. For Obama it is Lincoln, Roosevelt and King.”

Steel also points out how Obama’s oratory conforms to the tripartite ideal laid down by Aristotle, who stated that good rhetoric should consist of pathos, logos and ethos – emotion, argument and character. . . .

In English, when we use the word “rhetoric”, it is generally preceded by the word “empty”. Rhetoric has a bad reputation. McCain warned lest an electorate be “deceived by an eloquent but empty call for change”. Waspishly, Clinton noted, “You campaign in poetry, you govern in prose.” The Athenians, too, knew the dangers of a populace’s being swept along by a persuasive but unscrupulous demagogue (and they invented the word). And it was the Roman politician Cato – though it could have been McCain – who said “Rem tene, verba sequentur”. If you hold on to the facts, the words will follow.

Cicero was well aware of the problem. In his book On The Orator, he argues that real eloquence can be acquired only if the speaker has attained the highest state of knowledge – “otherwise what he says is just an empty and ridiculous swirl of verbiage”. The true orator is one whose practice of citizenship embodies a civic ideal – whose rhetoric, far from empty, is the deliberate, rational, careful organiser of ideas and argument that propels the state forward safely and wisely. This is clearly what Obama, too, is aiming to embody: his project is to unite rhetoric, thought and action in a new politics that eschews narrow bipartisanship. Can Obama’s words translate into deeds? The presidency of George Bush provided plenty of evidence that a man who has problems with his prepositions may also struggle to govern well. We can only hope that Obama’s presidency proves that opposite.

One of the most impressive and useful things to me about Obama’s speeches is his ability to unite his rhetorical moves (like the use of anaphora and epiphora noted in the Higgins’ article) to very powerful themes.

The most notable example of this to me was his 2004 Convention speech — the part about there not being a “Red or Blue America,” but, rather, “a United States of America,” etc. That speech, in addition to employing numerous rhetorical flourishes, employed them all to further the idea we who grew up in the U.S. have all grown up with: e pluribus unum; out of many, one. To me, that idea — that we are a united country precisely because we recognize and respect our vast differences — has always been one of the best things of what it means to be a U.S. citizen.

Sometimes I think that when we talk about rhetoric we focus on the devices at the price of the content we mean them to convey. I always think the primary task is to identify a theme or themes the speaker/writer wants to convey — then one can use the devices to further that theme. Without the theme, the devices really are just empty rhetoric.

A couple of small laughs

A couple of amusing things this morning, a dismal day here in Detroit.  First, from CNet comes the news that

A British woman has reportedly been kicked off a jury for posting a “note” on Facebook asking her friends what they thought of the trial.

She was given the boot after the court received a tip about the posting. . . .

The woman’s name has not been released, but the court appears to have been Burnley Crown Court in Lancastershire, and the case involved child abduction and sexual assault. According to The Sun, the woman posted details of the case on Facebook and added, “I don’t know which way to go, so I’m holding a poll.” Yeah, that’s bad.

The trial is said to have continued with 11 jurors instead of 12.

 And from Overlawyered comes the tip that Sullivan & Cromwell, a major and very established New York City law firm, employs an attorney named Soo Yoo.  Which reminds me of William Gaddis’s A Frolic of His Own, in which 

Oscar Crease [is] a college instructor who is suing both a film company and himself.  Firstly, he is convinced that a Hollywood mogul has plagiarised an unpublished play of his about the American Civil War and turned it into a blood-and-guts blockbuster.  Secondly, he has managed to get himself run over by his own car while hotwiring it and, through the insurance company, he is claiming damages against himself. 

The brand of Crease’s Japanese car? Sosumi.

Zippy the Pinhead: “Siegel, Shuster & Z-Man”

Should museums return antiquities to their countries of origin?

The headline on Stephen Litt’s piece in yesterday’s Cleveland Plain Dealer, “Analysis: Museums often pay the price for looted antiquities,” is misleading.  As Litt explains, it is more the exception than the rule that museums return antiquities to the countries from which those pieces have been looted.  Why?  “[I]f an object was looted, there will be no record of its existence. Many museums, including Cleveland’s, have collected and shown ancient works whose exact origins remain unknown.”

Nonetheless, the Cleveland Museum of Art recently agreed to send 14 objects back to Italy, where they’d been illegally dug up, cleaned, and restored before being put up for sale on a market that eventually lands them in museums around the world.  Litt explains that this agreement is part of a new wave of scrutiny museums are exercising over their collections.  Nonetheless, many consider the museums complicit in activities that are both illegal and immoral.  Cases such as the one involving the Cleveland Museum are the easy ones because there was clear proof the pieces were looted, not just an absence of documentation about where the pieces came from:

To experts such as Ricardo Elia, a Boston University archaeology professor and a close observer of the antiquities trade, such lack of documentation is proof that an object was looted. He estimated that as much as 90 percent of the antiquities purchased in recent decades by American museums are the product of looting.

But Timothy Rub, director of the Cleveland Museum of Art, said that lack of exculpatory evidence about an artwork’s origins doesn’t prove a wrongdoing was committed — or that the work should be relinquished on demand.

“If I’ve inherited as director custody of an object that doesn’t have a provenance before a certain date and somebody says, ‘It’s ours, give it back,’ that’s a pretty tough thing,” he said. “I’ve got to ask you to make a case.”

The difficulty of arguing such cases makes it unlikely that the recent wave of repatriations to Italy will lead to a vast purge of artworks from American museums.

Instead, if the negotiations show anything, it’s that museums, including Cleveland’s, are willing to part with antiquities only when foreign governments provide persuasive evidence connecting the works to recent criminal wrongdoing.

That’s a difficult threshold to reach, and it’s rare. The art bust in Switzerland, for example, documented the precise trail taken by specific objects from the looters who dug them up to the middlemen who cleaned and restored them, provided them with phony ownership histories and put them on the market.

“You may not see another case this dramatic for 20 or 30 years,” Elia said. “They found bags of Polaroid photographs and information from Hecht’s diaries.”

As I wrote in September in connection with the arguments going on over whether pieces like the Elgin Marbles and the Rosetta Stone should be returned to Greece and Egypt, Litt points out that antiquities are big, and illegal business, dominated by organized crime.

Negotiating between playwrights and non-profit theaters

The “Brewing Fight over Theatrical Rights” reported in today’s New York Times strikes this law professor as an easily resolved conflict.  Playwrights are complaining that non-profit theaters, in their standard form contracts to produce plays, are asking for 40 percent of the author’s royalties for the play for 10 years.  “In other words, if [the playwright] were to collect, say, $50,000 from [his play] over the next decade – a respectable sum for a well-received new play – the [non-profit theater] would receive $20,000 of it.”

The forty percent of future earnings (known as “subsidiary rights”) is standard for commercial theaters, but is a new high for non-profits.  From the playwrights’ point of view, it’s simply too much.  You don’t want your kids to grow up to be playwrights — they’ll starve.  The article quotes one playwright, Sarah Ruhl, who says, “If you’re talking about the difference between $18,000 a year or $30,000 a year, that’s the difference between being able to support yourself by playwriting – or not.”

The non-profit theaters, on the other hand, “argue that they deserve a cut because they increase the value of a new play with a first-rate New York production.”  And anyone involved in the non-profit world in these days knows that any source of income is desperately needed.  It isn’t really fair to say, as Ms. Ruhl does, “A nonprofit theater could raise that $12,000 from a corporation or a donor.”  For most non-profit theaters, it seems unlikely donors fall off trees.  Very few theaters are as well situated as the Lincoln Center Theater in New York and the Center Theater Group in Los Angeles, each of which has agreed to take no subsidiary rights.  It’s nice when you can draw on the charitable impulses of Wall Street and Hollywood moguls.  And the comment seems particularly insensitive coming from Ms. Ruhl, who, according to the New Yorker, “is thirty-four and has already won a half-million-dollar MacArthur Fellowship for her plays.”

So here’s the problem: for most playwrights, who make very little on their plays, 40 percent of their royalties for 10 years is too much.  For most theaters, the only way to produce plays is to tap every source of income they can.  Why not a sliding scale?  10 percent for the first X dollars in royalties, 20 percent for the next Y amount, etc.

This should not be war between playwrights and non-profit theaters.  They need each other, and mutually beneficial ground can easily be achieved.  Anyone should be able to see the common ground and I don’t expect this “brewing fight” to be a very bloody one.

Then again, when money is tight, people can get very nasty about the little remaining.  Those fights, though, are capitalism at its worst.  As Lewis Hyde, the writer about whom I wrote the other day, has noted, we already know that successful playwrights should support new playwrights and that we should not have to rely on private patronage to fund new plays.  In his Afterword to the Canongate edition of The Gift (pdf), Hyde writes about “the ethic by which the producer and director Joseph Papp used to manage the Public Theater in New York”:

Papp’s habit was to underwrite a great many theater productions and take a small ownership stake in each. Those that succeeded helped pay for those that came later. In the most famous example, “A Chorus Line” began at the Public Theater and then went to Broadway, opening in the summer of 1975. It ran without interruption for fifteen years, a commercial success that allowed Papp to support the work of less-established playwrights and companies. David Mamet, Sam Shepard, Elizabeth Swados, the Mabou Mines theater group and dozens more received support during the years that Papp managed the Public. Potential profitability is not a criterion for funding awards at Creative Capital; as with other arts funders, we ask our panels to look for originality, risk-taking, mastery, and so forth; we respond especially to projects that transcend traditional disciplinary boundaries. That said, the principle of sharing the wealth is essential to the Creative Capital model. It makes explicit the assumption that all who have succeeded as artists are indebted to those who came before, and it offers a concrete way for accomplished practitioners to give back to their communities, to assist others in attaining the success they themselves have achieved.

Friday night music break

Jimmy Cliff: Sitting in Guantanamo Limbo

The beginning of the end of a legal nightmare?

Sanity is beginning to take hold once again in our country’s legal institutions.  Judge Richard J. Leon is no wild eyed liberal.  He was appointed as a judge by George W. Bush in 2002.  Back in the ’80s he served as counsel to the Republicans in the congressional investigation of the Iran-Contra affair, and he was Special Counsel to the U.S. House Banking Committee for its “Whitewater” investigation.  In January 2005 he dismissed the habeus corpus petitions of 5 Algerian detainees in the U.S. military prison at Guantanamo Bay.

Yesterday, however, Judge Leon ordered (pdf) the release of the same 5 detainees after evaluating and rejecting government evidence that they were dangerous enemy combatants.  According to the Washington Post, “The Algerians were detained for years on allegations that they had been plotting to blow up the U.S. Embassy in Sarajevo when they were picked up by Bosnian authorities and later turned over to U.S. officials. Bush mentioned the bomb plot in his 2002 State of the Union Address. But the government withdrew those allegations last month without explanation.”  Judge Leon explained in his order that to allow the detention to continue based on “so thin a reed” (emphasis in original) of evidence as that presented by the government “would be inconsistent with this Court’s obligation.”  He also explained, “Unfortunately, due to the classified nature of the Government’s evidence, I cannot be more specific about the deficiencies of the Government’s case at this time.”

Judge Leon ordered that a sixth detainee, Belkacem ben Sayah, remain in custody because the government’s evidence against him was sufficient to label him an enemy combatant.

Last month another federal judge ordered the release into the United States of a small group of Chinese Muslims held at Guantanamo Bay.  The government conceded that those men are not threats to the United States.

But the Bush administration will not give up the fight it began years ago when it set up the prison at Guantanamo.  The Chinese Muslim prisoners have not been released pending the government’s appeal, which is based on the argument that regardless of the threat posed by the prisoners the courts do not have the power to order the executive branch to release a detainee into the United States.  And the Justice Department, in response to yesterday’s decision by Judge Leon, praised the decision to keep ben Sayah in custody while stating, “We are of course disappointed by, and disagree with, the Court’s decision that we did not carry our burden of proof with respect to the other detainees.”

As Jurist reports, “In a related development Wednesday, a military judge at Guantanamo Bay rejected evidence against detainee Mohammed Jawad [JURIST news archive], finding that it had been obtained through torture. Other evidence against Jawad for his pending trial by military commission was excluded in October, also because it had allegedly been obtained through torture.”

Perhaps this is the beginning of the end of a long national nightmare.  The Bush Administration set up the prison at Guantanamo after 9/11 on the theory that, since Guantanamo is not technically U.S. territory, the executive branch could do anything there to anyone without any legitimate review by any institution independent of the executive.  It could take people from China or Algeria, and even U.S. citizens, stick them in Guantanamo, torture them, and throw away the key, and there would be nothing anyone could do about it.

But let’s not be naive.  Four Supreme Court justices in Boumediene v. Bush (pdf) argued that the Guantanamo detainees were not entitled to the right to a habeus corpus hearing requiring the government to establish grounds for their detentions.  Justice Scalia in his dissenting opinion in Boumediene, joined by Justices Thomas and Alito, wrote that allowing the type of hearing that Judge Leon held “will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.”  Picking up on this vitriolic rhetoric from three of our highest jurists, conservative commentators wrote things like the following:

On June 12, the Supreme Court in Boumediene v. Bush gave the roughly 270 prisoners held at our prison camp in Guantanamo Bay, Cuba, the same constitutional rights as you and I. These foreign terrorists all plotted, planned, fought against and even killed American soldiers, who, now thanks to an oligarchy of five justices, can go before a U.S. federal judges in civilian court to challenge their years-long detention. (emphasis added)

Judge Leon made clear what the truth is: in the United States of America you cannot throw people into a cage and throw away the key without some legitimate basis for doing so.  The mere fact the military, the CIA, or (as in the case of the Algerians freed by Judge Leon) Bosnian authorities detained people and sent them to Guantanamo does not establish that they have plotted, planned, fought against, or killed U.S. soldiers.  We have to do away with Guantanamo, and we have to do away with torture.  We have fought and won wars far more threatening and damaging without abandoning our constitutional principles and the principles of the Geneva Convention.  January 20, 2009 cannot come soon enough.

I dont know how to tell you all just how crazy this life feels

From MSNBC:

John McCain may have lost the presidential election to Barack Obama, but his campaign seems absolutely determined not to lose to Jackson Browne. The singer/songwriter sued McCain in August after the Republican candidate for the highest office in the land used his song, “Running on Empty,” in a campaign commercial that targeted Obama’s energy plan. . . .

McCain, of course, is arguing that his use of the song was fair use, not copyright infringement (hyperlinks added):

The campaign’s fair use reading is based on the application of the standard four-factor test that includes the purpose and character of the use of the song (McCain argues it was non-commercial and transformative); the nature of the work (McCain derides the song as old, old, old, with a title that’s an acknowledged cliche); the amount and substantiality of the use of the song (McCain only used the title phrase, and cites a recent judgment against Yoko Ono, who had sought to prevent the unauthorized use of John Lennon’s “Imagine” in a film); and the effect of the use of the song (McCain says that rather than damage the song’s commercial potential, his use “will likely increase the popularity of this thirty year-old song”).

In some ways, the case is reminiscent of Master Card v. Nader 2000 Campaign Committee, in which the court dismissed Mastercard’s lawsuit against Ralph Nader’s 2000 Presidential Campaign Committee. Mastercard’s lawsuit alleged, among other things, that a Nader campaign add that borrowed heavily from Mastercard’s “priceless moments” television ads infringed on Mastercard’s copyright in those ads. The court concluded:

The Nader Ad does add something new and qualifies as a “transformative” work. Whether it “comments” on the original is the issue in question. MasterCard’s message depicted in its Priceless Advertisements is very plain and straightforward. In a series of advertisements, MasterCard presents various intangible moments that are highly valuable, yet unable to be “purchased” or are “priceless.” Hence, “there are some things that money can’t buy.”

This idea is followed by the message, that the viewer-consumer can purchase everything else with their MasterCard credit card–”for everything else, there’s MasterCard.” Ralph Nader’s Political Ad attempts to show various ways different Presidential candidates can be bought in the “big-money arena of Presidential politics” and contrasts the “priceless” truth represented by Ralph Nader as the remedy for the bought and paid for positions of others. Through this depiction, Ralph Nader argues that he not only sends across his own message, but that he wittingly comments on the craft of the original, “which cloaks its materialistic message in warm, sugar-coated imagery that purports to elevate intangible values over the monetary values it in fact hawks.” This commentary “may reasonably be perceived.” The message need not be popular nor agreed with. It may be subtle rather than obvious. It need only be reasonably perceived. Ralph Nader’s Political Ad is sufficiently a parody for the purposes of a fair use analysis, and consequently, is transformative.

William Patry, Google’s Senior Copyright Counsel, opines on typically futile efforts to use copyright to quell political speech here. There is a long history of this type of thing, as I’ve mentioned here and as you can see in the videos below, none of which was successfully blocked by the owners of the copyrighted works being used:

If you’re a bitter lawyer, there’s a site for you.

I had my down days in nearly twelve years of practice, but it didn’t (I hope) embitter me. There are a lot of bitter lawyers out there, though. Many of them are bitter because they would rather be doing something else. Many are quite creative. The ones at Bitter Lawyer have put that creativity to work on a website likely to be bookmarked on the web browsers of many big firm associates. They have webisodes, columns, and their own version of legal news (an interview, for example, with Ashley Dupre, the ex-prostitute patronized by ex-Governor Eliot Spitzer) . As the founders of the site write:

Feeling trapped? Head spinning with self-hate? Tired of taking orders from humorless workaholics? Have more than two headhunters on your speed dial? Talking to friends about moving to Sun Valley or writing a screenplay? Congratulations, you’ve come to the right place. The founders of Bitter Lawyer know exactly what you’re experiencing. We’ve worked at Big Firms, pulled all-nighters, been stuck in windowless conference rooms for weeks. In short, we know what it’s like to be an attorney, which is why we created this website.

Our singular goal is to create an engaging, insightful entertainment destination for lawyers. But we’re new at this. So please, send us your thoughts and opinions and tell us how to make Bitter Lawyer a more interesting and exciting experience. This is your site. Tell us what you want and we’ll do our best to deliver it.

Lewis Hyde: remaking copyright by recovering the past

Lewis Hyde is one of the great, and almost entirely unknown, U.S. geniuses. According to this past week’s New York Times Magazine, “David Foster Wallace called him ‘one of our true superstars of nonfiction.’ Hyde’s fans – among them Zadie Smith, Michael Chabon and Jonathan Lethem – routinely use words like ‘transformative’ and ‘life-altering’ to describe his books, which they’ve been known to pass hand to hand like spiritual texts or samizdat manifestoes. The source of much of this reverence is Hyde’s first book, The Gift (1983), which has never been out of print (it was recently rereleased by Vintage in a 25th-anniversary edition) and which tries to reconcile the value of doing creative work with the exigencies of a market economy.”

According to the Times, Hyde’s attention these days has turned to the ways computers and the internet have affected our views of creation and property. As I’ve written before, intellectual property may be property, but we make a huge mistake when we assume it is property just like land or couches are property. The ease with which we now can copy and instantly and disseminate intellectual property world-wide has, however, entirely upset existing intellectual property law. We should not be shocked by the legal chaos — when the material underpinnings on which law has been made change, the law is likely no longer going to work very well. When that upheaval occurs in a political climate that worships capitalism, we probably shouldn’t be surprised that, as Hyde puts it, “the last 20 years have witnessed a corporate ‘land grab’ of information – often in the guise of protecting the work of individual artists – that has put a stranglehold on creativity, in increasingly bizarre ways.”

One particular example of what upsets Hyde is the Sonny Bono Copyright Extension Act, which is commonly understood to be the result of Disney’s capacity to economically coerce legislation to protect its monopoly over Mickey Mouse. The point of copyright law is to encourage invention for the public good. As the Supreme Court has stated, “[t]he monopoly created by copyright thus rewards the individual author in order to benefit the public.” There is no reason to believe Mickey Mouse and Donald Duck would not have been invented and that Walt Disney would not have been fairly compensated for their invention without the Sonny Bono Copyright Extension Act’s posthumous extension of the Disney Corporation’s control over the images of Mickey Mouse and Donald Duck. Such laws provoke Hyde to write:

Always in the background lies the question of the commercialization of culture, exemplified at the moment by many things–the ‘enclosure’ of the public domain, the patenting of aboriginal medicines, proprietary control of genetic materials or of the internet, and the general market triumphalism that has followed the end of the Cold War.

According to Hyde, we can begin to achieve the intended purposes of intellectual property — to promote invention, not maximize the wealth of the inventors — if, as the Times writes, we recover

the idea of the cultural commons as a deeply American concept. To that end, [Hyde] excavates a history of the American imagination in which the emphasis is not on the lone genius (Thoreau scribbling hermetically in the Massachusetts woods) but on the anonymous pamphleteer, the inventor eager to share his discoveries. In an essay that offers a preview of his book (posted, fittingly, on his Web site), Hyde posits that the history of the commons and of the creative self are, in fact, twin histories. “The citizen called into being by a republic of freehold farms,” he writes, “is close cousin to the writer who built himself that cabin at Walden Pond. But along with such mainstream icons goes a shadow tradition, the one that made Jefferson skeptical of patents, the one that made even Thoreau argue late in life that every ‘town should have … a primitive forest …, where a stick should never be cut for fuel, a common possession forever,’ the one that led the framers of the Constitution to balance ‘exclusive right’ with ‘limited times.’ It is a tradition worth recovering.”

If you can’t say it clearly, you aren’t thinking it clearly.

At Language Log, Geoffrey K. Pullum makes a crucial point in criticizing Sarah Palin’s inchoherence:

I think being so utterly unable to explain what one wants to say is truly and reasonably regarded as a defect in one’s qualifications for office – partly because being so inept at talking in a controlled and sensible way strongly suggests that there was no sensible thought back there, and partly because even if there were sensible thoughts back there somewhere, a leader needs to be more skilled at articulating them.

I suppose I’d qualify Mr. Pullum’s statement in one way — where there’s incoherence, there rarely are sensible thoughts, even allowing for the ungrammatical nature of a lot of spoken language,

In short, if you cannot write or speak your thoughts coherently, you don’t have coherent thoughts. Think about it. How often have you heard a lecture, thought how much brilliance was there, and then gone home to write down notes embodying that brilliance, only to find out that there are gaps and fallacies filling spaces that must be filled if the brilliance is to persist?

If you can’t say it, you don’t know it. On this point, Malcolm Gladwell’s Blink has been widely misinterpreted (and was perhaps intended) as a brief in favor of gut feeling over analysis. I think, given the compelling examples he writes about, that Gladwell’s thesis would better be stated as follows: the gut feelings of people well trained and experienced in a field are often better than analysis. There is a huge difference between the gut feelings of hockey moms untrained in tax or foreign policy and hockey moms trained in tax and foreign policy when it comes to opining on tax and foreign policy. Richard Posner’s review of Blink explains (emphasis and hyperlink added) my point well:

As Exhibit A for the superiority of intuitive to articulate thinking, Gladwell offers the case of a purported ancient Greek statue that was offered to the Getty Museum for $10 million. Months of careful study by a geologist (to determine the age of the statue) and by the museum’s lawyers (to trace the statue’s provenance) convinced the museum that it was genuine. But when historians of ancient art looked at it, they experienced an “intuitive revulsion,” and indeed it was eventually proved to be a fake.

The example is actually a bad one for Gladwell’s point, though it is a good illustration of the weakness of this book, which is a series of loosely connected anecdotes, rich in “human interest” particulars but poor in analysis. . . .

But back to the case of the Greek statue. It illustrates not the difference between intuitive thinking and articulate thinking, but different articulate methods of determining the authenticity of a work of art. One method is to trace the chain of title, ideally back to the artist himself (impossible in this case); another is to perform chemical tests on the material of the work; and a third is to compare the appearance of the work to that of works of art known to be authentic. The fact that the first two methods happened to take longer in the particular case of the Getty statue is happenstance. Had the seller produced a bill of sale from Phidias to Cleopatra, or the chemist noticed that the statue was made out of plastic rather than marble, the fake would have been detected in the blink of an eye. Conversely, had the statue looked more like authentic statues of its type, the art historians might have had to conduct a painstakingly detailed comparison of each feature of the work with the corresponding features of authentic works. Thus the speed with which the historians spotted this particular fake is irrelevant to Gladwell’s thesis. Practice may not make perfect, but it enables an experienced person to arrive at conclusions more quickly than a neophyte. The expert’s snap judgment is the result of a deliberative process made unconscious through habituation.

Question authority, and then question those questioning authority

It may seem off topic to engage in a prediction regarding a sports event, but let it be heard here first — this weekend Michigan will beat Ohio State in football. In fact, you are likely to hear it nowhere else. Michigan is suffering its worst football season in history. Ohio sports writers are writing things like “Michigan (3-8) couldn’t be a bigger underdog if it were coming off a loss to St. Ignatius [an Ohio high school football power] at home instead of a loss to Northwestern.”

But my point is this: lawyers beat adversaries who never question the assumptions and premises most people never question. Lawyers need to make decisions. That’s a topic for another day. And one could question premises and assumptions forever without ever coming to a decision, so I’m not suggesting that one engage in perpetual questioning, that one ape Hamlet.

Rather, I am suggesting that the common wisdom is far more common than it is wise and that no lawyer ever got far for long by going with his unexamined gut instincts. And it almost seems a law of sports that when one team is considered unbeatable it will lose.

In the political arena, Tom Tomorrow has it right on.

Oh yeah: GO BLUE!

p.s. A friend at the ABA Journal is asking lawyers to complete the Journal’s survey on how you think the recession will affect the legal profession. You can do so here. All I know is that if Congress doesn’t help out the auto industry there are an awful lot of people in Michigan and Ohio who will lose their jobs and/or never get paid for goods and services they have already provided. I suppose, though, that bankruptcy lawyers will make out well.

McElhaney on being a good writer and speaker: let the story pick the words. Glass: and then explain the point.

How do you do what I’ve been writing about — making your thinking clear by avoiding empty phrases that don’t address the really dire questions you face?  My former Case Western Reserve colleague Jim McElhaney, who’s literally written the book on Trial Practice, has excellent advice in a column entitled “Stop Sounding Like a Lawyer“: “The first step in becoming a good writer and speaker is to concentrate on the story. Let the story-not the legal theory-pick the words.”

McElhaney does a good job in the article of telling a story and conveying its significance.  Ira Glass (a college classmate –  I have crossed paths throughout my life with remarkably talented and accomplished people without many of those traits rubbing off on me) explains that both a compelling story and reflection upon the story’s significance are necessary to capture an audience’s attention:

Surely you’re joking. I can tell by that ridiculous price.

On Friday I mentioned the case of a radio contest winner who successfully sued the radio station for the value of a Renaul Clio after she’d won a contest offering the car to the contest’s winner.  When she’d shown up to the station to claim her prize, the station had given her a tiny model of a Renault instead of an actual car.  This type of case turns on whether a reasonable person would believe the offer is a serious one.  Radio stations do offer cars as prizes.  In contrast, check out the following:

After seeing the ad, John Leonard, then a 21-year-old business student, discovered he could purchase individual Pepsi points from the company for 10¢ each.  After sending Pepsi $700,008.50 — representing money he had raised from five investors for 6,999,985 Pepsi Points, fifteen of his own Pepsi Points, and a little extra for “shipping and handling” — Leonard demanded his jet. Pepsi laughed off the claim, pointing out the Harrier had never been offered in the Pepsi Points catalogue and was just in the commercial to provide a humorous completion to the piece.

As indicated by Snopes.com, “If we have to put disclaimers on spots that are obviously farces, where does it end?” Pepsi spokesman Jon Harris said. Well, it didn’t end there. Leonard filed suit in Miami against Pepsi for breach of contract, fraud, deceptive and unfair trade practices, and misleading advertising.

Leonard lost.  In the opinion dismissing Leonard’s lawsuit, Judge Kimba Wood (speaking from personal experience, an excellent judge, though not immune from notoriety), did what lawyers often have to do — spell out in painstaking detail what most people accept as gut feelings.  In this case, she had to spell out that a reasonable person viewing the commercial would know that Pepsi was joking about the Harrier Jet:

Plaintiff’s understanding of the commercial as an offer must also be rejected because the Court finds that no objective person could reasonably have concluded that the commercial actually offered consumers a Harrier Jet. . . .

In evaluating the commercial, the Court must not consider defendant’s subjective intent in making the commercial, or plaintiff’s subjective view of what the commercial offered, but what an objective, reasonable person would have understood the commercial to convey. . . .

If it is clear that an offer was not serious, then no offer has been made . . .  An obvious joke, of course, would not give rise to a contract. . . . On the other hand, if there is no indication that the offer is “evidently in jest,” and that an objective, reasonable person would find that the offer was serious, then there may be a valid offer.

Plaintiff’s insistence that the commercial appears to be a serious offer requires the Court to explain why the commercial is funny. Explaining why a joke is funny is a daunting task; as the essayist E.B. White has remarked, “Humor can be dissected, as a frog can, but the thing dies in the process….” The commercial is the embodiment of what defendant appropriately characterizes as “zany humor.”

First, the commercial suggests, as commercials often do, that use of the advertised product will transform what, for most youth, can be a fairly routine and ordinary experience. The military tattoo and stirring martial music, as well as the use of subtitles in a Courier font that scroll terse messages across the screen, such as “MONDAY 7:58 AM,” evoke military and espionage thrillers. The implication of the commercial is that Pepsi Stuff merchandise will inject drama and moment into hitherto unexceptional lives. The commercial in this case thus makes the exaggerated claims similar to those of many television advertisements: that by consuming the featured clothing, car, beer, or potato chips, one will become attractive, stylish, desirable, and admired by all. A reasonable viewer would understand such advertisements as mere puffery, not as statements of fact, see, e.g., Hubbard v. General Motors Corp., 95 Civ. 4362(AGS), 1996 WL 274018, at *6 (S.D.N.Y. May 22, 1996) (advertisement describing automobile as “Like a Rock,” was mere puffery, not a warranty of quality), . . . and refrain from interpreting the promises of the commercial as being literally true.

Second, the callow youth featured in the commercial is a highly improbable pilot, one who could barely be trusted with the keys to his parents’ car, much less the prize aircraft of the United States Marine Corps. Rather than checking the fuel gauges on his aircraft, the teenager spends his precious preflight minutes preening. The youth’s concern for his coiffure appears to extend to his flying without a helmet. Finally, the teenager’s comment that flying a Harrier Jet to school “sure beats the bus” evinces an improbably insouciant attitude toward the relative difficulty and danger of piloting a fighter plane in a residential area, as opposed to taking public transportation.

Third, the notion of traveling to school in a Harrier Jet is an exaggerated adolescent fantasy. In this commercial, the fantasy is underscored by how the teenager’s schoolmates gape in admiration, ignoring their physics lesson. The force of the wind generated by the Harrier Jet blows off one teacher’s clothes, literally defrocking an authority figure. As if to emphasize the fantastic quality of having a Harrier Jet arrive at school, the Jet lands next to a plebeian bike rack. This fantasy is, of course, extremely unrealistic. No school would provide landing space for a student’s fighter jet, or condone the disruption the jet’s use would cause.

Fourth, the primary mission of a Harrier Jet, according to the United States Marine Corps, is to “attack and destroy surface targets under day and night visual conditions.” . . . Manufactured by McDonnell Douglas, the Harrier Jet played a significant role in the air offensive of Operation Desert Storm in 1991. . . . The jet is designed to carry a considerable armament load, including Sidewinder and Maverick missiles. See id. As one news report has noted, “Fully loaded, the Harrier can float like a butterfly and sting like a bee–albeit a roaring 14- ton butterfly and a bee with 9,200 pounds of bombs and missiles.” . . . In light of the Harrier Jet’s well-documented function in attacking and destroying surface and air targets, armed reconnaissance and air interdiction, and offensive and defensive anti-aircraft warfare, depiction of such a jet as a way to get to school in the morning is clearly not serious even if, as plaintiff contends, the jet is capable of being acquired “in a form that eliminates [its] potential for military use.”

Fifth, the number of Pepsi Points the commercial mentions as required to “purchase” the jet is 7,000,000. To amass that number of points, one would have to drink 7,000,000 Pepsis (or roughly 190 Pepsis a day for the next hundred years–an unlikely possibility), or one would have to purchase approximately $700,000 worth of Pepsi Points. The cost of a Harrier Jet is roughly $23 million dollars, a fact of which plaintiff was aware when he set out to gather the amount he believed necessary to accept the alleged offer. . . . Even if an objective, reasonable person were not aware of this fact, he would conclude that purchasing a fighter plane for $700,000 is a deal too good to be true.

Plaintiff argues that a reasonable, objective person would have understood the commercial to make a serious offer of a Harrier Jet because there was “absolutely no distinction in the manner” in which the items in the commercial were presented. Plaintiff also relies upon a press release highlighting the promotional campaign, issued by defendant, in which “[n]o mention is made by [defendant] of humor, or anything of the sort.” These arguments suggest merely that the humor of the promotional campaign was tongue in cheek. Humor is not limited to what Justice Cardozo called “[t]he rough and boisterous joke … [that] evokes its own guffaws.” Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 483, 166 N.E. 173, 174 (1929). In light of the obvious absurdity of the commercial, the Court rejects plaintiff’s argument that the commercial was not clearly in jest.

Leonard v. Pepsico has become a favorite of Contracts professors.  There are several good reasons why.  First, it plainly states the applicable rule: an offer is an offer if a reasonable person would take it as an offer, regardless of what the person making the offer subjectively intends.  Second, of course, it allows us to use in-class video, which makes us feel as if we’re somehow staying in touch with our students’ desires.  Third, Judge Wood does a good job at the skill that is so central to good lawyering — articulating feelings that most people are satisfied at merely feeling, not explaining.  In this case, the feeling is the feeling of humor (that Pepsi was just joking), but more often judges are required to explain why something is “just” when most non-lawyers would be satisfied with merely asserting “I just think it’s fair” or “I just think it’s not fair.”

Good lawyers, in short, begin their work where most people end their thinking.  Good lawyers take what people “feel” and make explicity and clear the reasons for those feelings.

Leonard v. Pepsico is an excellent case to illustrate one more very important principal.  What people intend is often embodied in and expressed by the price they are offering.  No one could take seriously an offer to buy a Harrier Jet for $700,000.  In fact, I might say (and often do to my Contracts students) that nothing is as expressive as price.

Friday Night Music Break: Was (Not Was): Hello Dad, I’m in Jail

Friday Night Music Break: Laurie Anderson: Only an Expert

Top 10 of the World’s Weirdest Compensation Claims

I haven’t fact-checked this post, so I would take it with a grain or entire shaker of salt, but it’s amusing to read the Top 10 or the World’s Weirdest Compensation Claims.  As a Contracts professor, I am particularly amused by the following two (numbers 4 and 1 on the list):

In 2005 a Romanian prisoner, Pavel M., while serving 20 years for murder, sued God. He argued that his baptism was an agreement between him and God under which, in exchange for value such as prayer, God would keep him out of trouble.

Cathy McGowan, 26 of Derby, England, was overjoyed when a DJ told her that she had correctly answered a quiz question and had won the competition prize: a Renault Clio. However, when she arrived at the radio station to pick up her prize she was presented with a 4-inch model of the car. In 2001, she sued and a judge at Derby County Court ruled that the Radio Station and its owners to pay £8,000 for the real vehicle.

I would, incidentally, expect my current Contracts students to be able to answer on their exam why it would be that Ms. McGowan should have received the value of the real vehicle.  For that matter, they should be able to explain why Pavel M.’s breach of contract claim would be dismissed as well, though that argument might fall within the scope of Civil Procedure: my guess is that there is no governmental court in the United States that has subject matter jurisdiction over claims against God.  Personal jurisdiction, on the other hand, wouldn’t be a problem, assuming God is everywhere.  Putting aside the jurisdictional issues, it is difficult for me to opine on the merits of Pavel M.’s contract claim since I don’t have the terms of the agreement he reached with God.

On a not altogether incidental but less frivolous note, I should point out that frivolous claims (which Ms. McGowan’s plainly wasn’t) really aren’t the problem many people claim them to be.