If it’s too good to be true, it’s too good to be true.

Yesterday i wrote about recognizing lies.  It is also fundamental to anyone who deals with contracts that they recognize that the higher a price one gets, the higher a risk one is taking.  So, if you buy “junk” bonds, you are getting a high interest rate, but along with the high interest rate comes a high risk you’ll get paid nothing at all.  That’s why they are called “junk” bonds — they’re the bonds of high-risk borrowers.  If you want to lend to those borrowers, you might get a lot back, but you might get nothing.  You can assume, therefore, that if you are told you can’t lose — that you’ll always make money, — that the risk you are taking is infinite.

These are the fundamental points Ben Stein made in this last Sunday’s New York Times when he connected the Bernie Madoff fraud, the sub-prime mortgage crisis, and the 80’s rise and fall of Drexel Burnham Lambert, the investment bank that specialized in the junk bond market:

ABOUT two years ago, a little delegation from a major investment bank arrived at my home in Beverly Hills. These nice young people were from the bank’s “wealth management division.” I told them straight away that I didn’t have anywhere near enough wealth to make their trip worth their time, but they smilingly insisted that we could help each other.

They told me that if I invested a certain sum with them, they would make sure that a large chunk of it was managed by a money manager of stupendous acumen. This genius, so they said, never lost money. He did better in up markets than in down markets, but even in down markets he did well. They said he used a strategy of buying stocks and hedging with options.

I protested that a perfect hedge would not allow making any money, because money made on the one side would be lost on the other. They assured me that this genius had found a way to spot market inefficiencies and, indeed, to make money off a perfect hedge.

I thanked them for their time and promptly looked up Bernard Madoff online. Nothing I saw was even a bit convincing that he had made a breakthrough in financial theory. . . .

My point is not that I was so smart. I am not and I was not. Mistakes are a big part of my life. My point is that, as humans, we seem unable to learn from our mistakes very well.

I have never heard of an entity that could make money in all kinds of markets consistently, year in and year out. Yet we continue to believe that there will be one.. . .

The same goes on a much larger scale for the debacle of subprime mortgages. In essence, it is a much larger version of the Drexel Burnham Lambert junk-bond debacle of the 1980s. Back then, investors were charmed by the idea that the lower-ranked the bond, the more money it would make. It seemed like a great idea: there’s this little corner of the market that the big boys turn up their noses at. But in this little corner, huge money is made. It’s almost like the myth that you get great bargains in poor parts of town.

In fact, the Drexel episode should have taught us to be wary, indeed, of poorly rated debt. But it didn’t. The new version of the myth was so alluring that it drew in not just billions of dollars from lenders and mortgage bond buyers, but much more in derivatives linked to the myth.

Knowing liars

Lawyers should be good at spotting fraud, but they often aren’t.  Same thing with historians. But this time the historians got it right:

About that fabricated (and now canceled) Holocaust memoir, by Herman Rosenblat, which David Mehegan writes about at Off the Shelf … Lesson: sometimes professors know what they are talking about.

Deborah Lipstadt called it a year ago. Here’s Lipstadt, a professor of Modern Jewish and Holocaust Studies at Emory, writing on December 7, 2007: “There is a Holocaust story making the rounds on the Internet which is clearly not true.” At this point, she seems to think it’s just a bit of Internet flotsam: “If you get this email do NOT send it on to other people. Delete it.”

Defamantion and Anonymity

From the Washington Post:

In a First Amendment case with implications for everything from neighborhood e-mail lists to national newspapers, an Eastern Shore businessman argued to Maryland’s highest court yesterday that the host of an online forum should be forced to reveal the identities of people who posted allegedly defamatory comments. . .

The businessman, Zebulon J. Brodie, contends that he was defamed by comments about his shop, a Dunkin’ Donuts in Centreville, posted on NewsZap.com. The shop was described as one “of the most dirty and unsanitary-looking food-service places I have seen.” . . .

For advocates of strong protections for anonymous speech and the Internet, online chat rooms are the 21st-century successors to the town square and the political pamphlet.

“There’s a long tradition in U.S. history of at least anonymous political speech, and certainly when you contemplate the Internet and the new opportunities it offers, this is the way a lot of speech happens,” Sam Bayard, assistant director of the Citizens Media Law Project at Harvard Law School, said in an interview.

At the same time, however, many argue that the First Amendment should not become a shield for those responsible for defamatory remarks. The reach of the Internet has allowed anonymous speech to potentially influence more people than ever, compounding the harm of a false claim.

This may be a far tougher and more important issue than it first appears.  We’ve lost touch with a lot of the “public square”-type of feeling that once existed.  Our newspapers are losing all capacity to cover the deeds of the corporate sphere.  The editor of the Manchester Guardian writes in the New York Review of Books of the Guardian’s struggles against one of Europe’s most powerful corporations over claims of defamation in a  story worthy of detailed attention:

News organizations in the Western world, struggling with declining audiences and revenue, are shedding journalists, closing down foreign operations, and cutting costs. But they are also increasingly inhibited by efforts-of government officials and of private corporations-to prevent them from protecting sources or from carrying out difficult investigations. Many minds are rightly focused on the regulatory, economic, technological, and legal issues that news organizations committed to serious journalism should be addressing.

We understand already that anonymous comments, because of their anonymity, are unreliable.  Yet we also know that people feel comfortable expressing themselves online particularly because of their ability to remain anonymous.  If we allow too much reach to people suing for being defamed, we will inevitably cause people to pull back from making even anonymous comments on any controversial matter involving a powerful person or company.  There’s simply too much risk and too much cost in being alleged to have defamed someone to bother.

So, should we allow someone to defame a particular Dunkin’ Donuts anonymously online, or should we allow a Dunkin’ Donuts to sue someone who might be correct in what they say but unable to defend the truth of their position?  That seems to me the choice: to either allow unjustified and unreliable speech or to shut down reliable and damaging speech.

Buying art? Buyer beware!

I teach Contracts.  One funny thing about the topic is that the “law” that applies to any given transaction is the contract itself.  In other words, if the words of the agreement (which can be written and/or oral) determine the outcome of a given situation, those words almost always control.  There are very few “immutable” contract rules — that is, rules that cannot be changed by agreement of the parties to the contract.

Thus, much of teaching contract law concerns the interpretation of contracts and “default” rules — that is, rules that apply to situations the parties have not agreed about.  Perhaps that is why I so often like using cases involving the sale of art in my classes — they so often require the understanding of the default rules.  As Joshua Kaufman, a lawyer in D.C., recently pointed out in a talk at the Smithsonian Museum, art transactions typically involve the least paperwork of any sort of commercial transaction:

“The art business is unique,” Kaufman said, “in terms of paperwork and due diligence. It has the least amount of paper of any commercial transaction.” That means you go into a gallery, buy what you like, and the dealer hands you a receipt for your purchase. Perhaps you even get a little paper describing the provenance. But buyer beware! The art market is filled with complexities, especially when it comes to auction houses.

MERRY Christmas!

It’s not my holiday, but it’s a holiday, and to everyone I wish a merry day. We need merriness as often as we can get it.

Incidentally, there is no “war on Christmas,” though it is true that the Puritans themselves banned the celebration of Christmas in Boston for 22 years. They frowned on merriness:

The Puritans who immigrated to Massachusetts to build a new life had several reason for disliking Christmas. First of all, it reminded them of the Church of England and the old-world customs, which they were trying to escape. Second, they didn’t consider the holiday a truly religious day. December 25th wasn’t selected as the birth date of Christ until several centuries after his death. Third, the holiday celebration usually included drinking, feasting, and playing games – all things which the Puritans frowned upon. One such tradition, “wassailing” occasionally turned violent. The older custom entailed people of a lower economic class visiting wealthier community members and begging, or demanding, food and drink in return for toasts to their hosts’ health. If a host refused, there was the threat of retribution. Although rare, there were cases of wassailing in early New England. Fourth, the British had been applying pressure on the Puritans for a while to conform to English customs. The ban was probably as much a political choice as it was a religious one for many.

It’s way later than 1984.

Here’s a creative new toy for law enforcement — RFID “dust.” RFID devices are those tiny electronic devices embedded in the things we buy, in our currency, in our passports, in more and more of everything we’ve got. The devices electronically store information that can be read with an RFID reader. Dr. David J. Atkinson, at Our Weird and Wonderful Future, wonders about the creative and creepy ways these new RFID particles, measuring 0.05 x 0.05 mm, will be used:

At 5 microns thick, the RFID chips are easily embedded in sheets of paper. But since existing tags are already small enough to embed in paper, it leads one to wonder what new applications might be enabled.

Used in paper currency, for example, the chips could serve as a guarantee of authenticity. Gift certificates are another benign application. What about identification? Tracking?

With 128k ROM (not much memory, but enough) imagine how this stuff might be used. What if police dusted a crowd at a demonstration — participants could be rounded up later. Sprinkle a little bit on hubby, then see if it shows up where it should not. Dust on hands, transferred during handshakes …where would it go? Who would pick up the dust? The potential of RFID to shred our last bits of privacy is huge. And where needs be, it will happen.

The e-book will open a new front in an ongoing legal revolution.

The New York Times reports today that “[f]or a decade, consumers mostly ignored electronic book devices, which were often hard to use and offered few popular items to read. But this year, in part because of the popularity of Amazon.com’s wireless Kindle device, the e-book has started to take hold.”

An e-book that works well is a dream of mine.  At any given moment, I literally am reading 25 different books.  Whenever I travel, one of my toughest choices is which 2 or 3 I’ll bring with me.  Not only are my infinitely wide, but my moods change constantly.

But as the e-book takes hold, expect a new wave in the copyright wars.  With more and more books being published in electronic form, they’ll be as easy to copy and disseminate as music is now.  So illegal copying and distribution will be inevitable.

In addition, the cutting and pasting of portions of books will create a whole new set of questions regarding fair use.  We will witness the resurrection of the commonplace book:

“Commonplacing is the practice of entering literary excerpts and personal comments into a private journal, that is, into a commonplace book or, to use a 17th century synonym, a silva rerum (“a forest of things”).  Typically the excerpts were regarded as exceptionally insightful or beautiful or as applicable to a variety of situations, and so as such they are often especially quotable. . . . The practice of commonplacing can be traced back in the European tradition to the 5th Century B.C.E. and the Sophist Protagoras.

Historically commonplacing has played an important role in education, and it has served as a vital tool of erudition.

“Boys … had to keep notebooks or commonplace books in which to record, and then learn, idioms, quotations, or figures useful in composition or declamation. Not a little of that wide learning and impressive range of quotation adorning Elizabethan literature comes from these commonplace books.” Schools in Tudor England, by Craig R. Thompson (Washington: Folger Shakespeare Library, 1958): p. 16, cf. 44.

“Students with literary tastes, in days when books were hard to come by, kept ‘commonplace’ or notebooks into which they copied out verses or prose extracts that particularly appealed to them.” The Intellectual Life of Colonial New England, by Samuel Eliot Morison (Ithaca: Cornell University Press, 1965; reprint of the 2nd ed., 1956): p. 49.

–Norman Elliott Anderson, Commonplacing in the Spiritual Traditions

Will a professor’s commonplace book require permission for the reprinting of every excerpt?  There inevitably will be questions about when the excerpts are too long, though I would imagine a collection of excerpts that are small enough and together comprise a wholly new work (a literary collage) should be considered transformative enough to constitute fair use.  Inevitably, though, there will be lawsuits arising in particular situations.

Charges of plagiarism, no doubt, will also increase.  I strongly suspect that some of the recent incidents of plagiarism involving respected writers were the results of the inevitable errors that creep into works that require an enormous amount of research.  A quotation taken during research from one work is mistaken at the writing stage as a paraphrase and ends up verbatim in the finished product.  Someone spots the quotation (a process that will be even easier when the texts themselves are all electronic), and, voilà, charges of plagiarism fly through the blogosphere and plague the historian for the rest of her career.

These legal problems are inevitable.  I’ve said it before and I’ll say it again.  Law is a product of the material circumstances in which it arises, not an abstract set of truths brought down and imposed on reality.  When the material circumstances change, the law will have to change.  We are living through the most profound change in the availability of information since Gutenberg.  The law will change, and it will be a very interesting ride.

Bush v. Gore lives, as it should.

As the New York Times observes today, one of the most controversial parts of the Supreme Court’s 2000 decision in Bush v. Gore was the Court’s pronouncement that the decision would have no precedential effect: “”Our consideration is limited to the present circumstances,” the majority famously said, “for the problem of equal protection in election processes generally presents many complexities.”

In our legal system, courts are bound to follow decisions of, among others, the Supreme Court.  The principle, known as stare decisis, is fundamental to the common law system we adopted from England.  The Supreme Court in Bush v. Gore, therefore, was stating that for that case only, stare decisis would not apply.

Why did the Court make this unprecedented pronouncement?  Many believe it was because the equal protection grounds supporting the Court’s decision, if applied in future cases, would open the doors to lawsuits that never before had been considered viable.  The requirement of equal protection of the law is, to put it mildly, a complicated subject.  Quite plainly, the law makes legitimate discriminations between groups every day.  Accordingly, a legitimate claim that a law denies equal protection requires some sort of reasonable belief that the law might have been enacted to discriminate on illegitimate grounds.

The Supreme Court in Bush v. Gore had no reason at all to believe that the Florida Supreme Court’s recount order it was reviewing had been intended to give greater weight to one preferred class of voters over another.  Thus, the Supreme Court did not want the equal protection principles it was applying to supply legal arguments in future cases it was not prepared to hear — I seriously doubt, for example, that a state’s decision to locate most of its waste disposal facilities in areas that are predominately populated by minorities or the rural poor would satisfy any existing equal protection analysis.  But if Bush v. Gore’s reasoning does apply, who knows?

The New York Times observes that despite the Supreme Court’s proclamation, courts are beginning to apply the reasoning of Bush v. Gore. That in itself is interesting.  What I find more interesting is that there was not more outrage on the point at the time.  Stare decisis is generally understood to control courts by limiting their rulings to the principles enunciated in earlier decisions.

But stare decisis also provides a control over the court that makes a decision.  If its decision is baseless, later courts will say so and overrule it.  The Supreme Court could not face later courts, or even a later incarnation of itself, declaring that the equal protection principles applied in Bush v. Gore were baseless.  Accordingly, it tried to declare that any future consideration of whether they were baseless was off limits.

Right wingers often, and falsely, declare that liberal judges are activists who make law and conservative judges merely apply the law as it exists.  But I can think of no more “activist” decision than Bush v. Gore, where the Court tried to declare “this is the law for this case, and something else will be the law for another case.”

RIAA to stop suing over illegal downloads

From the ABA Journal:

Ending a controversial enforcement effort in which it appeared to be fighting something of a losing battle, the Recording Industry Association of America says it will stop suing consumers over illegal music downloads via the Internet.

“The decision represents an abrupt shift of strategy for the industry, which has opened legal proceedings against about 35,000 people since 2003,” reports the Wall Street Journal. “Critics say the legal offensive ultimately did little to stem the tide of illegally downloaded music. And it created a public-relations disaster for the industry, whose lawsuits targeted, among others, several single mothers, a dead person and a 13-year-old girl.”

Instead of using lawsuits as leverage to try to protect music copyrights, the RIAA now plans a more practical enforcement effort concerning illegal downloads. With the help of Internet service providers, those who repeatedly download music illegally and ignore ISP warnings are expected to have their Internet service first slowed down and then stopped entirely, the newspaper explains.

The art behind the bull

BAGnewsNotes makes an interesting connection between Bernie Madoff as con artist and Bernie Madoff as art collector:

How fitting, and brilliant even, to grace his office and his media portrait with Lichtenstein’s 1973 lithographic series of this animal, in which the bull, just like Madoff’s own presentation of financial reality, reflected the same morphing into abstraction.

Of course, just as I pointed out recently in connection with the Lehman Brothers vast art collection, Madoff’s art collection is now nothing but one more asset to be sold off along with the office furniture.

And the impact of Madoff’s monumental financial fraud on the art world is not limited to his own collection.  According to ArtInfo, a number of major art patrons have lost hundreds of millions of dollars with the collapse of the Ponzi scheme.

Survival

John Kline and my father both were GIs in the106th Division during WWII.  On December 19, 1944, they both were captured by the Germans during the Battle of the Bulge.  They were the lucky ones.   The 106th Infantry Division, average age of 22 years, suffered 564 killed in action, 1,246 wounded and 7,001 missing in action at the end of the offensive.   Most  of these casualties occurred within the first three days of battle, when two of the division’s three regiments was forced to surrender.  You can read Kline’s diary of his wartime experiences here.

My father swears he hasn’t had a bad day in his life since his liberation.  He’s a lawyer, which I suppose is one possible way to justify this post.  Another is that the friend with whom he huddled for warmth during their first night of captivity was Jim Dew, a painter and professor at the University of Montana.  This is one of his works, entitled Placid, which resides in the Montana Museum of Art & Culture.

Negotiating with authorities as part of the art itself

From the Harvard Law School’s Project on Negotiation:

Among the artists who most explicitly deal with business and law are Christo and Jean-Claude, whose “massive art installations, often using nylon or woven fabric to highlight buildings or works of nature. Their most recent project (2005), “The Gates,” consisted of 7,503 16-foot-tall steel gates with suspended swaths of saffron-colored nylon that snaked through 23 miles of paths in Central Park.”

While art may not seem like an area rife with negotiation, the nature of Christo and Jeanne-Claude’s large-scale works invariably requires coordinating with a variety of stakeholders including local, state, and federal officials, community groups, environmentalists, landowners, and the general public.

The two received the 2008 Great Negotiator Award on Sept. 23 from the Program on Negotiation (PON) at Harvard Law School, which recognizes those who have made lasting contributions to the fields of negotiation and dispute resolution. . . .

Christo said that often the negotiating process itself infuses a project with importance.

In discussing the “Wrapped Reichstag,” the parliament building in Berlin that was veiled by the artists in more than 1 million square feet of woven polypropylene in 1995, Christo said the opposition to the effort by then-Chancellor Helmut Kohl only heightened the work’s significance.

In an attempt to stop them, Kohl ordered a roll-call vote in parliament. To garner support, the artists canvassed the country talking to the parliament members’ constituents to plead their case. Ultimately, they persuaded 79 members of Kohl’s conservative party to vote with them and approve the project.

“The permitting process creates the identity of the work. … It creates the dynamics, power, identity. The process sometimes makes the work more important, much more important than we could imagine.”

Law is real, and so is art.

From Mirrors. Photographs from the Arkansas State Prison 1915-1937, found and printed by Bruce Jackson, 8/19/2004 (with pointers from Jonathan Lethem and Julie Langsam):

Piecing together coherence

“Life is made up of a series of judgments on insufficient data, and if we waited to run down all our doubts, it would flow past us.”

– Learned Hand, On Receiving an Honorary Degree 137 (1939).

We all always want to know more. The worst discussions I have in class are those that begin with a suggestion from a student along the lines of, “Well, the plaintiff might have done X,” when there is no more reason to believe X happened than to believe the laptops of every student in the class were being used to take notes. In fact, the plaintiff might have done X, but the mere possibility is not enough on which to base a judgment or decision. If, on the other hand, there are facts or reasoning within the case that support a reasonable inference the plaintiff might have done X then perhaps X is worthy of being taken into account.

Juries never have all the facts. Wouldn’t it be nice if God could provide us his videotape, with all the angles the networks apply to sporting events.

But we make judgments, and we make decisions, and without our capacity to decide reasonably well based on a minimum of knowledge we’d be utterly lost. Life would flow right past us. The other day, writing about the reassignment of the Plain Dealer’s well-respected music critic, I wrote that “[a]s far as I know, such a reassignment breaches no duties, contractual or otherwise.” Do I know that for a fact? Of course not. I am not privy to the thoughts, discussions, or plans of any of the parties to the lawsuit. I don’t have a copy of the relevant contracts.  But what do I know? If there had been a breach of a contract or any other legal duty, Rosenberg’s lawyer would have alleged that breach.

In short, non-facts — things that don’t happen — are often as telling or even more telling than the things that happen. Will Girl Talk be sued for copyright infringement? I have no special insight. Some people are certain Girl Talk will be sued. Others believe Girl talk is protected by the doctrine of fair use.

Me? No one has sued Girl Talk yet. That speaks volumes. What else persuades me?  Girl Talk’s recordings use the samples they weave together to create works that can in no way be substituted for the sampled works. In short, as aural collages go, Girl Talk and Negativeland are as good as they get, and if I were interested in vindicating my right to charge for any sample of a recording I owned the copyright to, I’d stay as far away as I could from a lawsuit against those two acts.

But no doubt there is data out there I am unaware of that sooner or later will make me look like a fool.  That’s simply the nature of human existence.

Roberto Bolaño made a somewhat similar point in explaining the transmutation of life’s chaos into the order of stories:

Let’s say the story and the plot arise by chance, that they belong to the realm of chance, that is, chaos, disorder, or to a realm that’s in constant turmoil (some call it apocalyptic). Form, on the other hand, is a choice made through intelligence, cunning and silence, all the weapons used by Ulysses in his battle against death. Form seeks an artifice; the story seeks a precipice.

Mr. Potato Head, Esq.

E-Commerce Times reports that “Hasbro has dropped its lawsuit against the makers of a popular online version of board game “Scrabble.” As reported last summer by the New York Times, “Looking to cut down its main competition and most high-profile copycat in the growing market for social gaming, Hasbro . . . sued the two Indian brothers behind the popular Web game Scrabulous, which has more than half a million regular users on the social network Facebook.”

Given the boost to Scrabble’s sales provided by Scrabulous’s popularity, many had wondered at the wisdom of Hasbro’s lawsuit. At the time, Josh Quitner wrote, “[A]s a tech writer and life-long student of what passes for Internet economics, I’m baffled. Is Hasbro just a stupid Potato Head? Or is this a brilliant game of Stratego?”

Mike Masnick explains:

It’s difficult to see how Hasbro could have handled the Scrabulous situation any worse. Scrabulous, of course, was a Scrabble-like game made for Facebook, which quickly became one of the most popular apps on that social-networking site. Hasbro, which owns the rights to Scrabble in the U.S., didn’t have its own version, and rather than recognize an opportunity, it chose to shoot itself in the foot, suing the brothers who created it. The Scrabulous guys eventually came back with a slightly modified game, which became quite popular as well, while many angry Facebook fans organized boycotts of Hasbro products. Prior to that, of course, the attention brought about by Scrabulous had resulted in a renaissance for the game, leading many people to go out and buy physical Scrabble sets. Yes, Hasbro took a situation that was driving more sales of the board game, and turned it into one where thousands of people were boycotting its products.

Back when Hasbro filed the lawsuit, Barry Nagler, Hasbro’s General Counsel, had explained that “Hasbro has an obligation to act appropriately against infringement of our intellectual properties.”

I’ve said it before and I’ll say it again: being a good lawyer isn’t just a matter of knowing and enforcing the law. It’s a matter of knowing and using the law to advance the best interests of your clients. The mere fact your client’s intellectual property is being “infringed” does not mean that your client’s best move is to go out and try to crush the infringer.

In these difficult times, artists will need to depend on artists to produce new and innovative art.

Back in November, I wrote about conflicts between non-profit theaters and novice playwrights in connection with producing commercially unproven plays.  I also suggested that the solutions to those conflicts were not as profoundly difficult as some were suggesting. One such solution was to require the most successful productions by non-profit theaters to underwrite newer productions.

Yesterday, the National Endowment for the Arts reported that nonprofit theaters in the United States have seen unprecedented expansion across the United States.  Nonetheless, “while the research indicates broad growth and generally positive fiscal health, it also reveals decreasing attendance rates and vulnerability during economic downturns.”

Among the report’s findings were the following:

• Individuals and foundations remain the biggest contributors to nonprofit theater. In 2002, individuals donated 40 percent of all contributed revenue, and foundation giving made up 22 percent.
• Between 1990 and 2005, nonprofit theater revenues fluctuated sharply with business cycles in the U.S. economy. After the 2001 recession, nonprofit theater revenue (including both ticket sales and contributions) dropped nearly 12 percent in 2002. Revenue continued to decrease slowly from 2002 to 2005.
• Audience trends are flat or in decline. The percentage of the U.S. adult population attending non-musical theater has declined from 13.5 percent (25 million people) in 1992 to 9.4 percent (21 million people) in 2008. The absolute size of the audience has declined by 16 percent since 1992.

Given our current economic meltdown, the report does not bode well for the future of innovative theater.  Individual and foundation giving are not likely to sustain theatrical experimentation, and new sources of funding, including playwrights themselves, are going to have to be found.  In short, the global crisis in the markets and the resulting futility of depending on wealthy patrons makes all the more compelling Lewis Hyde’s call for artists to support artists:

Potential profitability is not a criterion for funding awards at [our theater]; 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 [financing our productions]. 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.

Franz Welser-Möst is a snob, Donald Rosenberg is engaged in a seemingly futile lawsuit, and Cleveland is no farmer’s village.

I am flattered and honored that people whose opinions I enormously respect, including Jill Miller Zimon, have asked me to opine on this matter, reported by the New Yorker:

The Cleveland Plain Dealer created a scandal when it demoted its staff classical-music critic, Donald Rosenberg, to general arts-reporter status because of his overwhelmingly negative reviews of the Cleveland Orchestra-specifically its conductor, Franz Welser-Möst. Now Rosenberg is suing the conductor, the Plain Dealer, the orchestra, and specific staff members of both organizations, detailing a conspiracy in which the orchestra put massive pressure on the newspaper. We give you the details, as listed in Roseberg’s public suit.

A scandal it might be. As Sam Bergman writes on the Minnesota Orchestra website:

So what’s really going on here? Well, Rosenberg, though widely respected as a writer and critic, has had something of a bee in his bonnet ever since the Cleveland Orchestra’s current music director, Franz Welser-Möst, took up his post in 2002. As Tim Smith, another respected critic, put it on his blog, “Don has judged that Welser-Möst is lacking in certain abilities in certain repertoire, that he doesn’t necessarily get the best out of music or the eminent ensemble.” As a result of this conclusion, Rosenberg has been handing out more unfavorable notices than one would normally expect to read about an orchestra as august as Cleveland’s.

Here’s my take on the matter: I am shocked, shocked that a newspaper exercises influence over its reporting, reviewing, and editorializing to advance the interests of its patrons.

Don’t get me wrong.  The Plain Dealer might lose whatever credibility it has left in caving to the Cleveland Orchestra to insulate it from Donald Rosenberg rigorous criticism.  As Bergman puts it, “while the relationship between those who perform and those who write about performers will probably never be anything but uneasy, it crosses a dangerous line for those on the performance side to exercise backroom power to remove a writer they find inconvenient.”

But I’m a law professor, not a public relations consultant.  My opinion is being sought, I presume, because Rosenberg filed a lawsuit.  And Rosenberg’s lawsuit may be even more futile than the often harsh criticism he has directed at one of our city’s hallowed cultural institutions.

In short, even taking Rosenberg’s allegations to be true, the Plain Dealer reassigned him (unlike the 21% of its unionized newsroom staff that has been laid off) because the newspaper did not like what he was writing about the Cleveland Orchestra. As far as I know, such a reassignment breaches no duties, contractual or otherwise. That the Plain Dealer may lose credibility as an objective journalistic outlet as a result is one thing; the newspaper’s loss of credibility, however, does not give rise to a reporter’s right to recover damages.

Rosenberg’s complaint (pdf) claims that on August 25, 2004, he wrote an article in the Plain Dealer that quoted Franz Welser-Möst, the Conductor and Music Director of the Cleveland Orchestra, stating that, among other disparaging remarks regarding Cleveland and the Orchestra’s donors, Cleveland is as an “island” and “an inflated farmer’s village” with a world-class orchestra.

No matter how you evaluate legal questions, Welser-Möst’s comments were stupid and condescending.  If Cleveland could recover damages for stupid and condescending comments, though, . . . well, you get the drift.  We’d be the Paris of the Great Lakes.

Rosenberg’s complaint goes on to allege that in response to his story, the Orchestra’s public relations director told Rosenberg he would suffer “consequences.”  These consequences, according to Rosenberg’s complaint, included a “campaign to besmirch Plaintiff’s reputation as a music critic,” efforts to “tortiously interfere” with his business relationship with the Plain Dealer, and the creation of “obstacles to his ability to function as a music critic.” This “retributive and punitive campaign of vilification against” Rosenberg, among other things, allegedly violated the “public policy” of the State of Ohio, Plaintiff’s employment rights, and promises that had been made to him by the Plain Dealer. In addition, the campaign allegedly defamed Rosenberg.

What does this legalese mean?  First, Rosenberg is claiming that the PD was out to discredit him as a music critic.  Second, he seems to suggest that criticizing a critic is somehow in violation of Ohio law and public policy and of his contractual rights with the PD.  Finally, he claims that the PD knowingly lied about him.

There are several problems with Rosenberg’s legal claims.  First, any critic is himself fair game for criticism.  If the First Amendment (which Rosenberg brandishes in his support) means anything, it means that we allow a free and open debate among opposing viewpoints.  Rosenberg has often been harsh in his criticism of the Cleveland Orchestra and especially of Welser-Möst.  He can hardly claim to any legal harm resulting from strong disagreement with his views, even from within his own paper.  Has anyone read the debates between, say, Kevin O’Brien and Dick Feagler?

As to any breach of contract Rosenberg might be alleging, my best guess is that he is an employee at will, which means that he can be fired for any reason at any time.  If the PD doesn’t like what he’s writing, they can fire him.  And they didn’t fire him.  They transferred him to a different beat.  Nor am I aware of any Ohio law or policy that forbids an employer or even a newspaper from firing or transferring a reporter who’s work they don’t like.

Finally, Rosenberg claims he has been defamed.  That claim deserves a closer look.   Defamation is a false statement made, with knowledge of its falsity, for the purpose of injuring its victim.  The complaint Rosenberg filed specifies the following ways in which he was defamed: (1) a statement that “the credibility of the newspaper had been compromised” by Rosenberg’s withering reviews of Welser-Möst’s conducting, (2) an assertion Rosenberg was “attacking the orchestra,” (3) a claim Rosenberg’s reviews were “unfair,” and (4) a statement that the Plain Dealer’s situation had become “untenable” as a result of Rosenberg’s negative reviews of the orchestra.

None of these statements are the kinds of factual assertions that are likely to support a finding of defamation.  If your employer claims your conduct is hurting its business because you have, undeniably, been expressing harsh views, can that be characterized as a lie?  It is important to note that Rosenberg is not claiming that the PD lied about what he said — the entire dispute is about how to characterize — how to describe with adjectives — what he said.  A newspaper is a business.  If its reporters are not serving that business, the newspaper is no more obligated to keep employing the employee than is a retail establishment required to keep employing an impolite salesman.

I may be overly cynical in the views I am expressing here.  My journalist friends are concerned with the ethics of this situation.  But I don’t understand why a newspaper is any more obligated to employ someone it believes is undermining its message, as long as the newspaper is not lying about the reporter’s behavior, than is any other employer.  If the PD no longer liked Donald Rosenberg’s reviews of the Cleveland Orchestra, it had every right to relieve him of his duties to review the Cleveland Orchestra.

The Plain Dealer’s readiness to cow tow to the Cleveland Orchestra may damage the newspaper’s credibility, but that is another matter altogether.  By all means, if you loved Donald Rosenberg’s reviews and feel the Plain Dealer has sold its soul to a snob who has no use for our “farmer’s village” other than to exploit George Szell’s priceless legacy, stop going to see the Cleveland Orchestra.  Of course, that course of action may indeed reduce us to little more than a farmer’s village.  Lord knows we won’t be manufacturing cars or auto parts any longer.

But Donald Rosenberg?  He has no contractual, moral, constitutional, or other enforceable right to force the Plain Dealer to allow him to continue to criticize Franz Welser-Möst in its pages.  Maybe he’d like to start a blog.  I know Carolyn Jack would welcome him aboard

ADDENDUM: Jack adds in the comments that “Mr. Rosenberg is not an at-will employee. He is a member of The Newspaper Guild and covered under the existing contract between the Northeast Ohio Newspaper Guild and The Plain Dealer. He can be fired only for just cause.”  the point is well taken, but, inasmuch as Mr. Rosenberg was not fired, I do not think it detracts from the central point of my analysis.  He still is employed as a journalist for the PD; the fact he is not covering the beat he covered for so long does not, as far as I can know, create for him any legal right to recovery.

Lawyers in movies, then and now

In Bad Lawyers in the Movies, Michael Asimow reflects on the ways movies have depicted lawyers over the years:

In years past, film and television presented us with a set of lawyers who were decent people and honest, competent professionals – sometimes even heroes. In film, Atticus Finch, Paul Biegler, Clarence Darrow, Amanda Bonner, or Judge Dan Haywood served as wonderful role models for everyone in the profession from law students up to grizzled veterans. Today, it’s just the opposite. Most film lawyers are bad role models. Lawyers on the big screen are teaching lawyers and law students that uncivil and unethical behavior is rewarded in law practice. Law students are taught that they must be Rambo with a briefcase to be successful; perhaps young people who find that model attractive are disproportionately choosing legal careers. While there is little or nothing that we can do to alter the way lawyers are portrayed in popular culture, we can make use of film and television to better understand the fundamental problems besetting our profession. Do a lot of lawyers have alcohol or drug problems? Do many of them act in a rude, uncivil manner? Do they chase ambulances? Do they treat associates and staff members exploitatively? Do lawyers work too many hours, thus wrecking personal relationships? Are many of them deeply dissatisfied with their career choices? Is there a big firm, win-at-all-costs mentality? Yes, to all these questions. These are the realities of law practice at the millenium. We need to seriously address all of these problems and invest in finding solutions to them, whether or not we ever succeed in improving our public image. Thinking about the way that we’re portrayed in film can teach us a lot about ourselves.

Should we even consider foreign law in making our own?

Justices Scalia and Thomas have argued that the the Supreme Court should not even refer to foreign law in justifying and explaining its decisions (except perhaps in interpreting treaties), because it would violate the original intent of the Framers. Scalia has even called invoking foreign precedent a “dangerous practice.”

The refusal to even consider the views of foreign courts has always struck me as nonsensical. An argument’s persuasiveness is measured by its persuasiveness. If an argument based on foreign law is persuasive, why forbid its consideration except from some misbegotten xenophobia?

Paul Finkelman, in “Foreign Law and American Constitutional Interpretation: A Long and Venerable Tradition,” refutes Scalia and Thomas for three principal reasons summarized in the introduction to his article. First, “[i]f the Court is going to rely on history, then surely historians must push the Court to offer the best history it can. It serves no good purpose when a justice claims adherence to history and then ignores vast amounts of historical evidence that do not fit with his preferred outcome.” Second, “[t]he history of the Court in the eighteenth, nineteenth, and early twentieth centuries demonstrates that the Court often used foreign law to help it decide cases that did not involve treaties. . . . Indeed, such use of foreign law might constitute a jurisprudential tool equivalent to stare decisis-it has been legitimized because it has been used for so long and so often by so many different justices.” Finally, “early in our history the Court often used foreign law to suppress liberties. Given this fact, it would be jurisprudential hypocrisy for the Court to turn against the use of foreign law now, when it might be used to protect or enhance liberty and fundamental rights.”

Involved in a lawsuit? Be ready to welcome the world into your life.

One of the downsides of engaging in litigation, even on behalf of a righteous cause, is the way in which you must open much you consider private not only to your adversary but often also to the public.  Your motives, your finances, your personal relationships, and, in certain circumstances, your physical and emotional health will be subject to inquiry in the course of a lawsuit.  Often, these questions and answers will be part of the public record.  Court records, after all, are public records.

Fortunately, unless you are considered newsworthy, most of the public will not go rooting through court files.  It is inevitable, though, that the new technologies and media outlets will be used to exploit the exposure of personal matters.

So I am not surprised that, as reported in the ABA Journal, “Outraged by deposition testimony in a fraud suit against a Houston automobile dealership, a client of a Texas attorney arranged, with the lawyer’s help, to post a six-minute excerpt on YouTube.”

In this case, the judge ordered the post taken down (because the deposition was not yet part of the public record in the case), but he refused to sanction the lawyer and client who had initially posted it. “However, the final salvo hasn’t yet been fired in battle to publish the deposition excerpt on YouTube. [The plaintiff's attorney] plans to file a written transcript of the deposition at the courthouse, as part of the record in the case, and then post the full deposition on the site. Under those circumstances, says [the defense lawyer] . . . , his client would be unlikely to protest.”