The Lonesome Death of Hattie Caroll and the recent death of her killer.

William Zantzinger, a Maryland man who became the subject of 1964 Bob Dylan song “The Lonesome Death of Hattie Carroll, died earlier this month at the age of 69.

How the Stimulus Bill will become law.

With Obama’s stimulus bill wending its way through Congress, there seems no better time to review the legislative process, and I have never found a better way than Schoolhouse Rock to do exactly that:

It’s a good day for feisty working women.

On January 6, I wrote about “Writing Wrongs the American Way” in connection with the travesty of the Supreme Court’s decision in the Lily Ledbetter case and the pending legislation intended to correct that wrong.  Well, today President Obama signs the Lilly Ledbetter Fair Pay Act into law.  In today’s New York Times, Gail Collins explains clearly and concisely the injustice Ledbetter suffered:

Ledbetter, now 70, spent years working as a plant supervisor at a tire factory in Alabama. How, when she neared retirement, someone slipped her a pay schedule that showed her male colleagues were making much more money than she was. A jury found her employer, the Goodyear Tire and Rubber Company, to be really, really guilty of pay discrimination. But the Supreme Court, in a 5-to-4 decision led by the Bush appointees, threw out Ledbetter’s case, ruling that she should have filed her suit within 180 days of the first time Goodyear paid her less than her peers. (Let us pause briefly to contemplate the chances of figuring out your co-workers’ salaries within the first six months on the job.) Until the Supreme Court stepped in, courts generally presumed that the 180-day time limit began the last time an employee got a discriminatory pay check, not the first.

Ledbetter, unfortunately, will not benefit from the new law.  The Supreme Court decision in her case was a final judgment that cannot be undone.  But Collins does her some justice in celebrating her willingness to fight for her rights.  And I’m glad to see too that Collins recognizes the importance of lawyers in the fight for justice too:

It’s a good day for the feisty working women who went to court to demand their rights and the frequently underpaid lawyers who championed them. They’re strangers to one another; most of them made their stands and then returned to their ordinary lives. But they’re a special sorority all the same.

Here’s an old film that fueled my imagination

And still another take on appropriation and originality

One artist’s take on issues related to Shepard Fairey

When does appropriation serve creativity? Quite often, in fact.

A commenter to yesterday’s post on Shepard Fairey’s Obama poster has suggested that I don’t believe in copyright because I believe that, even though Fairey created his image by initially tracing a copyrighted photo, the changes he made to the image and its re-contextualization within the campaign poster might well be sufficiently transformative to make his work non-infringing fair use.  In fact, I’d go so far as to say I genuinely believe Fairey’s image is a creative work in its own right even though it derives from another work.

In that regard, it’s worth noting that Henry McKervey and Declan Long, in “Makers and Takers: Art and the Appropriation of Ideas, write::

[I]t is the expression of an idea which is subject to legal protection. While perhaps this has meant that an artist such as Gillian Wearing can be faced with difficulties over the unattributed re-application of her work, the law also could be said to give artists a relative amount of freedom to take and re-use material in any number of subtly different ways without the spectre of plagiarism remaining ever-present. In a work such as Douglas Gordon’s 24 Hour Psycho, for instance, there is in one sense very little of the artist’s ‘own’ work (Hitchcock’s classic thriller being merely re-played at a radically slowed-down pace) yet Gordon’s intervention makes for a powerful, transformative artistic statement. The question of “knowing originality when you see it” is almost beside the point in cases such as this: artists’ strategies of appropriation prompt questions of originality to become thematically intriguing on, one level, while also being critically irrelevant and, on occasion, inappropriate, on another.

Believing that genuinely transformative appropriation is legitimate does not imply I do not believe in copyright.  It means, rather, that I believe that copyright should serve the only purpose it constitutionally is meant to serve: increased invention and creativity.

And did anyone notice that the John Williams composition played at the inauguration, “Air and Simple Gifts,” borrowed heavily from Aaron Copland’s Appalachian Spring, which itself appropriated a Shaker hymn?

A funny thing happened on our way from the Cold War

Who would’ve thought it? We win the Cold War, but unfettered free markets don’t lead to prosperity and peace.  We sanctify property, but we find property rights don’t promote productivity.  Nature Biotechnology reports that a new survey shows scientists consider the proliferation of intellectual property protection to have a strongly negative effect on research.

Copying or transforming?

Brian Sherwin of myartspace>blog is very upset with Shepard Fairey for creating the Obama poster (pictured on the left) because Fairey produced his image by, first, stenciling the original photograph pictured on the right. Fairey never attributed the image to the photographer and, of course, never compensated him. I don’t share Sherwin’s umbrage. The photo on the right is a generic image that is indistinguishable from photos seen constantly the world over these last several months. The image on the left became a resonant symbol. The photo could not begin to be considered a substitute for the poster. I think the poster is in fact “transformative” of the photo.

Oppositional figures?

Art and law are ways of exploring, defining, and even creating the world. They are also often romanticized as methods of expressing opposition — opposition to the ruling order, opposition to the status quo, opposition to conventional wisdom. Princeton will soon be hosting a symposium on The Art of Opposition. The promotional materials state:

Throughout history artists have created works as a form of opposition, whether to a dominant political order or to familiar social mores and conventions. This polemical mode of conceiving and interpreting art continues: artists frequently present their own work as a challenge to the status quo, while scholars and critics of contemporary art reinforce the notion that for art to be relevant it must at some level present a critique of prevailing habits and attitudes. For art historians, the concept of art as a form of protest or a challenge to established convention remains a frequent point of departure for research, particularly in relation to certain artists or in the study of specific historical junctures.

Art too, of course, has a long history of reinforcing the status quo, of glorifying the powers-that-be. Virgil’s Aeneid is at least in significant part pro-Augustan propaganda. And you don’t exactly find the world’s greatest art (or most art) in the more pedestrian places. Patronage has its price.

Law as well has its long history of opposition. Our entire system of litigation is founded an adversarial process. More to the point, however, lawyers have often been at the forefront of progressive social movements. As in the case of artists, however, it is not skill and creativity that frees one from the mass of humanity, or even from the forces that crush the most noble parts of humanity. It is the use to which one puts that skill and creativity.

Are lawyers and artists completely different and atagonistic?

Wendy Duong of the University of Denver Sturm School has written an article entitled “Law Law is Law and Art is Art and Shall the Two Ever Meet? Law and Literature: the Comparative Creative Processes.”

It’s a fascinating article and well worth dowloading and reading, but here I’d like to take issue with one of her principle points.  As she puts it in the abstract to her article:

The two disciplines, Law and Art, remain divergent and incompatible in three core aspects: (i) the mental process of creation and the utilization of facilities, (ii) the work product or output, and (iii) the raison d’etre of law versus art. The Article points out that the mental process and utilization of facilities inherent in law has little to offer the creation of art, and the two creative processes are antagonistic to each other. In fact, the rationality and logic properties of law the objective of rendering certainty to uncertain future outcomes so as to achieve and maintain order — will interfere with, and can even destroy, the creation of art.

I will confess that I would not generally consider the product of legal practice “art” and it would be a stretch to fit even certain extraordinary legal products art –  Perhaps the Declaration of Independence? The Constitution? Certain influential legal opinions?)

But does law “render certainty to uncertain future outcomes”?  I passionately believe that an enormous part of the law does not do that at all, that what in fact it does is the kind of activity Ms. Duong attributes to art.

Life is infinite.  Each case courts decide are intended first, of course, to resolve the specific cases they are resolving.  But to the extent they render opinions, they are only contingently trying to address the future, and they know those contingent efforts are subject to irrelevance under new circumstances.

Moreover, life is constantly changing, and the law has to grow out of the material conditions it is always striving to govern.  In doing so, it is constantly striving to envision the future material conditions the law might apply to and to anticipate those conditions in making law.  Lawmakers then do not decide with a certainty what law they want to impose from above on the future; they collaboratively work out the best approach to whatever they can envision, knowing all the while that the law may well have to change in the future.

The practice of law too is the constant telling of stories — stories to persuade, stories to inspire, stories to justify visions of the future.  In doing so they are as constrained as artists in the “realities” available to them.  Lawyers are artists.  They may have to make decisions, but that doesn’t mean that in getting to those decision-making points they are not as creatively engaged as artists.

Finally, if lawyers aren’t engaging in the same mental facilities as artists, I don’t have a clue what mental processes artist and lawyers engage in.  I suspect if those ways of thinking are entirely divorced from one another, the lawyers aren’t practicing law well and the artists are not producing good art.

And if artists’ visions are irrelevant entirely from decisions people make in life (You must change your life.), what is it?

Good lawyers understand they are poets.

I wrote last week that lawyers are artists, not technocrats. Tim Nolan, a lawyer in Minnesota clearly agrees, and in an article focused on Wallace Stevens — one of the greatest American poets of the 20th Century and an insurance lawyer for the entirety of his professional life — goes on at length about the similarities of writing poetry and practicing law:

Writing poetry and practicing law bear similarities that are not often examined. In litigating a lawsuit, a lawyer is often overwhelmed with facts, documents, statements, memories (good and bad), emotions, a hovering concept of justice (good and bad), time lines, bullet points, visual aids, legal precedent, practical precedent, clients, judges, jurors. From all of this, the lawyer must draw out a story, with a cast of characters (sometimes stock characters), themes, partial resolutions and final outcomes. The good lawyer is able to not only marshal all these resources, but draw out and suggest the final conclusion for the good of his client.

The poet, facing a blank piece of paper, has a similar task. From endless possibilities, what must be said? What words will be used to say it? What images will convey what needs to be said? What kind of intent or insight will the music and sounds evoke? . . .

There is physical and intellectual malleability to both pursuits. As a lawyer, you can push facts and precedent around, or embrace them, or ignore them. You know there must be at least one jurist in some obscure court who thinks exactly as you do and supports your position.

As a poet, you can push lines around, invent language, make the reader laugh or cry, speak in a voice that is yours or is imagined entirely.

It is a mistake to think that the law is objective or scientific and poetry is merely subjective. Young lawyers, especially it seems those who clerk for appellate courts, often feel they can objectively predict what the courts will do. Experienced lawyers understand that while possible outcomes can be identified, the facts, the desires of the parties, the collective wisdom of the jury, the predilections of the judge, all wonderfully defy clear prediction.

The young poet thinks no one has ever felt this before; no one has ever said this so eloquently; the reader will be enthralled. With time, the poet comes to know that centuries’ worth of better writers have been mining the same territory, and while not much can be truly “new,” one’s own peculiar “slant” has never been here before.

Both poetry and the law involve the effort to move from the objective to the subjective — from fact to feeling — from observation to intuition. In a jury trial, how the lawyer presents his case is in some ways more important than what is presented. This is what drives the general public crazy about lawyers — how could they argue either side convincingly? What shamelessness! Lawyers know it is not difficult at all.

A lawyer and a poet must both be advocates and possess a strong sense of service toward the client or the reader. Accompanying this sense of service, there must be a generosity of spirit, a readiness to be empathetic. The lawyer must empathize with the client. The poet must have true empathy with the reader.

For both a lawyer and a poet, the imagination must always be present. Stevens, in reviewing an insurance claim, used the same imagination at work in his poems to determine whether or not to pay the claim.

Here is what a lawyer and poet must both be able to do — pick up a fact or image of nearly total insignificance — a mere marble along the way — and make it significant by the imaginative effort of paying attention. I am not advocating that lawyers or poets make up facts or images. Rather, I am saying that if the lawyer or the poet pays enough attention, he can learn that what seems insignificant hardly ever is, and, indeed, the outcome of the entire case, the meaning of the poem itself, may ultimately turn on it.

Business and law adjusting to our new world

It’s become almost trite to suggest that the new material underpinnings of the music marketplace demand new legal and marketing models, but getting people past their convictions that existing business and legal models are eternal is not an easy thing.  We can point to different models in the past — artists were once dependent not on the marketplace to make a living but, rather, on patrons.

But Corey Smith is proof that there are new and profitable models to follow.  His model is based on the widespread distribution of his music for free.  As Dave Kusek reports:

Corey’s whole business model is based on giving away lots of music for free and building relationships with his fans. Last year he grossed $4.2 million with a team of seven people. He does it primarily through touring and developing seriously close relationship with his fans.

Who’s the good guy?

When they begin studying law my students most of my students, like children and cartoons, divide the world into good and evil. They believe that most cases can be explained by figuring out who’s the “good guy” and who’s the “bad guy.” To the beginner, every explanation is a strained effort to demonstrate why someone in a case has lied, cheated, or stolen. I try to explain to them that cases involving evil doers victimizing innocents are the easy ones. More importantly, perhaps, they’re the rare ones. The tough stuff to understand and explain are the vast majority of feuds, the feuds in which each side believes it is acting in good faith and for the best.

Life inevitably results in misunderstandings, accidents, mistakes, death, and failures (of investments, businesses, buildings and bridges, operations, etc.). Doing justice is most sensibly and correctly resolving the fights that result from those inevitable, though regrettable, events.

Justice, therefore, is blind.

So I am particularly disturbed by the willingness of people to cast aside the law on the grounds that certain lawbreakers meant only to do good. Charles Fried, Solicitor General under Reagan, for example (whose scholarship on Contracts I very much respect), condemns torture without qualification and yet argues we can’t prosecute people who decided to break the law and order torture because well, . . . unlike actual criminals the people who justified and ordered torture meant well:

But should the high and mighty get off when ordinary people committing the same crimes would go to prison? The answer is that they are not the same crimes. Administration officials were not thieves lining their own pockets. Theirs were political crimes committed by persons whose jobs were to exercise the powers of government on our behalf. And the same is even truer of the lower-level officers who followed their orders.

They are the same crimes — breaking the law in the belief that breaking the law is justified. Then why should Dick Cheney and the lawyers who lied about the law to justify torture get off?

Michael Mukasey is the Attorney General, and this week he apparently made the decision not to prosecute a former Justice Department lawyer who quite plainly could be indicted and tried for breaking federal law:

[A] former senior Justice Department official, Bradley Schlozman, set out to hire so-called “Right-Thinking Americans,” including members of the Federalist Society and other Republicans, for what were supposed to be apolitical career positions. He then gave them plum assignments on civil rights cases when he was helping to run the Civil Rights Division, beginning in 2003. . . . Mr. Schlozman . . . gave false statements to Congress when he repeatedly denied factoring politics and ideology into his hiring decisions.

The . . . case against Mr. Schlozman relies heavily on his words, from e-mail and phone messages to colleagues and underlings. His disdain for the traditional independence and mission of the Civil Rights Division is palpable. He spoke brazenly about reshaping the division by doing away with “pinko” and “crazy lib” lawyers and others he did not consider “real Americans.”

“As long as I’m here, adherents of Mao’s Little Red Book need not apply,” he wrote in one e-mail message. The report found that Mr. Schlozman transferred three lawyers out of the division because they were viewed as liberals who opposed his political agenda. The transfers, the report found, violated federal civil service law and “constituted misconduct.” All three lawyers brought federal discrimination claims and returned to the division after Mr. Schlozman’s departure.

Yet, without explanation, the Justice Department has decided not to prosecute Mr. Schlozman.

Charles Fried and Michael Mukasey can identify with federal officers and lawyers. They are or were federal officers and lawyers. They know even when people try hard things sometimes go wrong. But that doesn’t mean people who set out to do wrong things for even good reasons are above the law.

Fried and Mukasey know that, but somehow that knowledge escapes them when the defendants look and act just like them. That’s not the rule of law. It’s the rule of an aristocrats watching out for each other.

Someone must have traduced Maher A. . . .

Scott Finet, in one of the most frequently cited law review articles ever published — Franz Kafka’s The Trial as Symbol in Judicial Opinions — wrote in 1988 of literature in law. Specifically, he discussed the ways judges use references to The Trial, concluding that in writing opinions they used the novel’s depiction of Joseph K.’s encounter with an utterly arbitrary and incomprehensible legal system to illustrate their own system’s rationality and fairness:

This article will show how judges make references to The Trial in published decisions as a symbol of their commitment to the shared value of rational choice. Their references to The Trial seem to be an effort to resolve, on a symbolic level, the contradictions between the ideology of an orderly, rational legal decision making process and the sometimes incongruent workings of that process. This is not to say that the decision making process is or is not always predictable and based on rational choice, but that judicial decision makers, in an effort to legitimize themselves and the process, attempt to convince those affected by their decisions that the process is predictable and based on the shared value of rational choice.

Thus, Finet described one way judges frequently use The Trial – to discuss someone who is faced with the need to find the reason for his predicament. For example, a criminal defendant might be seeking the reasons for his prosecution, something Joseph K. was never able to discover:

In the cases that refer to The Trial one often encounters the supplicant who seeks information and resolution to his or her quest just as Joseph K. did in The Trial. The role of the information seeker can be played by the plaintiff or the defendant. Judges cite The Trial to demonstrate that they, unlike the illegitimate court in The Trial, are committed to the shared value of rational choice and that they will provide a resolution to the supplicant’s search.

Finet article is now over 20 years old.  I wonder what he’d make of the predicament faced by Guantanamo detainees, some of whom, we’re told, are too dangerous to release but can never be prosecuted because no U.S. court will allow the admission of evidence obtained by torture.   Even more to the point, perhaps, is the case of Canadian Maher Arar, arrested by U.S. officials on a stopover in New York, sent (via “rendition”) to Syria, and tortured there for a year before it was realized he was an innocent Canadian. And last year a U.S. court established that Mr. Arar could not sue in U.S. courts to establish that U.S. officials “acted illegally by removing him to Syria so that Syrian authorities could interrogate him under torture.” The Trial is not so much a contrast here; Mr. Arar found himself in New York’s Kennedy airport in a situation much like Joseph K. did at the very beginning of Kafka’s novel:

Someone must have traduced Joseph K., for without having done anything wrong he was arrested one fine morning.

Law in Art/Law as Art

I’ve taught in law schools for 13 years. Before that I practiced in New York City for over 11. What I’ve largely found is that lawyers have little use for law professors, and law professors have little use for lawyers.  Where I am this year, the University of Detroit Mercy Law School, is an exception to this rule, and a rare one.  The far more common, if strange, disconnect between the academic world and the world of practice is illustrated by the academic field known as “Law and LIterature.”  Wikipedia accurately describes Law and Literature as both the study of law in literature and of the literary characteristics of legal writing.:

The law and literature movement focuses on the interdisciplinary connection between law and literature. Believed to have originally begun as a subcategory of jurisprudence, the movement encompasses the complementary ideas of law in literature and law as literature.

The problem, as Daniel J. Kornstein, a writer and a lawyer, is that the law and literature movement has had no impact on the practice of law:

The greatest shortcoming in Law and LIterature to date has been its failure to reach and engage the practicing lawyer. For the most part, Law and Literature has remained firmly entrenched in legal academia, its realm of origin. The shirtsleeve lawyer is essentially untouched.

I have from the start intended for this blog in large part to remedy this lack of connection between literature, and other arts, and the practice of law. Just as the Law and Literature movement examines both law in literature and law as literature, I try to focus on law in creative endeavors and law as a creative endeavor. I suppose part of what drives me to do so is that I have taught primarily first year law students, and they, like most people, have given very little thought to the art they have encountered and only begin under my watch to understand that, perhaps primarily, I am training them to be artists, not technocrats.

Colbert, remixed!

Law as performance

The courtroom as theater is such a commonplace notion that it has even been the subject of installation art, including the installation pictured here, “Set: Room 302,” a collaboration between Judy Radul and Geoffrey Farmer. Commenting on the piece, Richard Fowler, a lawyer, makes explicit some of the ways both the artists and he himself as a lawyer treat a trial as, literally, a performance:

Room 302 uses a courtroom to convey, through performance and the setting itself, ideas about truth and reality. The roles of the lawyer, witness, guard and court reporter are enacted and observed reading from scripts. Occasionally, two unseen voices can be heard directing the performers. With the court reporter overseeing the performance, scenes are redone, sounds and events recreated. In essence, a real event is recreated by the performance to produce a new reality; we judge the past by what we are shown in the present.

Trials are a process by which we attempt to recreate the past in the present so that judges can decide what happened. Rules of evidence guide the process and ensure the integrity of the recreation. For example, evidence must generally be a first hand account – the witness must have seen or heard the event themselves. Rumour, gossip, stories passing from one person to another, inferences, opinions – the ingredients of real life – are not admissible. Conventions and formalities govern the performances of the lawyers. The process is grounded in solemnity and dignity: the judge and lawyers wear robes, the judge is ‘my lady,’ and opposing counsel ‘my learned friend.’ . . .

The courtroom is like any theatre and the trial like any performance. The lawyers learn their lines and practice their performances. Witnesses are given advice about how to play their roles. Court clerks guide the performance, directing witnesses, introducing the judge and providing some narrative of events. Sheriffs usher the audience, provide security, and open and close the room.

It is within this context that I, as a defence lawyer, defend people. The prosecutor directs her witnesses to describe an account of a past event; I attempt to throw doubt on that account. Does the witness’ account make sense, is it reliable, is it exaggerated, or is the witness lying? I attempt to unravel the carefully prepared performances of the witnesses, to move them from their script. The witness is now improvising. Without a script frailties of perception and cognition are soon revealed, sources of contamination exposed, and bias or prejudice indicated. The judge relies on these raw ingredients to adjudge the performance; was it genuine, impartial, reliable, credible or exposed as exaggerated, embellished, unreliable and incredible?

My difficulty is convincing my students law isn’t just the rules, but a performance constrained by the rules, and that they have to not only learn the rules, but also then learn how to integrate the rules into meaningful depictions of the real life they and everyone else live outside the classroom

Law is, first and foremost, human drama.

Today in Contracts class I tried to get my students to understand they have to understand the reality of the case law they’re reading, not merely the rules the cases articulate. The rules only go so far. There are a lot of reasons understanding rules alone is a woefully inadequate way to understand the workings of any legal system, but I did try to get across that if the students would envision choosing, preparing, and questioning the witnesses described and quoted in the case they had read for today, they might understand why one witness in particular had been so effective.

The case was Frigaliment Importing Co. v. B.N.S. International Sales Corp., 190 F.Supp. 116 (S.D.N.Y. 1960), a case memorable in part because the Judge starts his opinion out like this: “The issue is, what is chicken?” The case really does turn on the definition of “chicken.” A U.S. exporter had contracted with a European buyer for the delivery of a large shipment of what the parties had described in their conversations and in the documents they exchanged as “chicken.” The seller delivered, in part, older stewing chickens rather than younger roasters or fryers. The latter are not only younger; they’re also tastier and more expensive. The buyer sued for the difference in price between the young chicken he thought he had bought and the old chickens he received.

The seller won. Among the witnesses was “Defendant’s witness Weininger, who operates a chicken eviscerating plant in New Jersey[. He] testified ‘Chicken is everything except a goose, a duck, and a turkey. Everything is a chicken, but then you have to say, you have to specify which category you want or that you are talking about.’” I tried to get across how effective Weininger must have been. I explained he might well have been like a guy out of The Sopranos — an everyday kind of New Jersey guy who runs a slaughterhouse grunting out in a loud and low voice this funny and telling line. All the students wanted to talk about was that the rule of construction “ut magis valeat quam pereat” ought to control.

Wrong. Rules don’t decide cases, and Latin rules of interpretation definitely don’t decide cases. Human beings decide cases, and human beings are swayed by vivid drama far more than they are swayed by technicalities. Even when we speak of disputes between institutions of finance that are decided by the testimony of accountants we are swayed by drama. There will be a lot of these kinds of cases (decided by the testimony of dueling accountants) in the near future. But there always have been. Back at the end of the last century, Nick Leeson — the self-described “rogue trader whose unchecked risk-taking caused the biggest financial scandal of the 20th century” — was the center of legal action against accountants “forced to explain how their audits of Barings failed to spot Leeson’s creation of a financial abyss capable of bringing down Britain’s oldest merchant bank.”  BNet at the time almost breathlessly explained:

This situation is by no means unique. Accountants from rival firms regularly square up to each other across the courtroom and in the offices of City law firms. The accountancy giants have been regularly pitched against each other in protracted legal battles since the 1970s.

If one realizes the pitched battles between accountants representing rival financial institutions and financial regulators can be described as high drama, one ought to explain that anything legal can, and is, high drama.

One shouldn’t be surprised, therefore, that even at the beginning if the last century the New York Times recognized that trials scenes are, almost inevitably, a regular occurrence in almost any kind of play.

Lawrence Lessig on The Colbert Report