There is nothing new under the sun?

What is creativity? What is originality?

AP doth protest too much, methinks.

It’s interesting how often the people who scream the loudest about a problem are the ones who in fact are vulnerable to precisely the criticism they are voicing.  I’m no psychologist, though you clearly need no professional degree to understand that zealotry apparent certainty can betray insecurity. AP has of late been rather extreme in its rush to protect its rights in copyrighted material. Now AP seems poised to take on Google’s contention that it is engaged in non-infringing fair use when it engages in its regular practice of displaying the headline and lead paragraph, along with credit and a direct link, of the news stories published by, among others, AP.

As Larry Dignan points out on ZDNet, AP regularly — a lot, every day — reports stories that are based purely on other public sources without either acknowledging or linking to those sources.  He concludes that “once folks figure out they can damn near replicate most of the AP just by finding source material things are going to get ugly quickly.”

Why do we enforce contract promises?

Over the course of my professional career, Law and Economics has grown from one school of thought among many to one so dominant that many of its postulates have virtually become unquestioned premises from which legal reasoning begins. The Law and Economics school of thought is wide-ranging, but might fairly be described the way Wikipedia puts it: Law and Economics is an “approach to legal theory that applies methods of economics to law. It includes the use of economic concepts to explain the effects of laws, to assess which legal rules are economically efficient, and to predict which legal rules will be promulgated.”

One of the most influential premises of Law and Economics is that contractual promises are enforced purely because of their capacity to maximize the society-wide allocation of resources. Thus, it is said that the contractual promise has no moral value over and above its economic value. This view both explains why typically someone suing for breach of contract can recover only the financial equivalent of the benefit they would have received had the contract been performed. There is no additional quantum of damages added to provide an incentive not to breach.

Thus, it is said, a contractual promise is in fact a promise either to fulfill the promise or to pay the damages that result from breach. This view, it is argued, has long been the view of the common law, as exemplified by Oliver Wendell Holmes’ late 19th Century statement that “the duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it, and nothing else.” Thus, the thinking goes, if someone who has made a contractual promise can make out better by breaking the promise, paying damages for breach, and entering a different deal, that result is not merely tolerable — it is to be desired. Such a breach of promise is known as an “efficient breach” because it theoretically results in an increase in overall resources: the party injured by the breach is supposed to get everything he was supposed to get under the contract, the breaching party is getting something better, and the new party with whom the breaching party contracts is getting a deal he would not otherwise have gotten.

The Law and Economics view is by no means the only one current in the theorizing about the basis for enforcing contractual promises (and the interpretation Law and Economics devotees put on Holmes’ statement is disputed). As a contracts professor and litigator, though, my experience is that the idea that the contract promise has no moral value over and above its economic value is a very, very influential one.

It is a view, too, that is of a piece with the rise to virtual unquestioned dogma that unregulated free markets always result in the highest social good. One problem, though, is that unregulated free markets entrench the power of the wealthiest. So people bound by promises (the “promisor”) can force the person to whom they are bound (the “promisee”) to change the terms of the promises if the promisor has greater financial ability to force the promisee into a legal resolution that is unacceptable to the promisee.

The disparity in economic power the theory of efficient breach does not account for is on display in the power corporations hold to renegotiate employment contracts.  Since an employee can only recover for breach whatever damages are available to him through law, the threat of being limited to that remedy can be a powerful one. Thus, as the New York Times pointed out last week,

Contracts everywhere are under assault.

The depth of the recession and the use of taxpayer dollars to bail out companies have made it politically acceptable for overseers to tinker with employment agreements.

But, as David Skeel, a law professor from the University of Pennsylvania quoted in the article points out,

We run roughshod over some contracts and not over others. . . . Right now, employment contracts seem to be the type of contract that is viewed as eminently rewritable.

So we have Larry Summers, President Obama’s Chief Economic Adviser, arguing in connection with the bonuses paid to AIG employees that the contractual promises are too sacred under the law to undo: “”We are a country of law. . . There are contracts. The government cannot just abrogate contracts. Every legal step possible to limit those bonuses is being taken by Secretary Geithner and by the Federal Reserve system.” On the other hand, the UAW’s agreement to give up rights under its contract with the auto companies was required by the government as a condition of the federal monies the automakers received.

So, are contractual promises “sacred” in some way, or are they only worth whatever the parties to them can extract given their relative financial strength and political influence? I don’t think I know.

Free Speech, Copyright, and Fair Use: We can express ourselves any way we want, even in ways that “steal” your own forms of expression, unless there’s a good reason to stop us.

Calling the right a creator has in his or her work intellectual property is misleading. It conveys the imipression thatthe work is property in the same way a television of a piece of land is property. You can fence in land. You can stop anyone from using your television. But intellectual property is not personal property the way things are and it is not real property the way land and the buildings attached to land are. Artists often think otherwise. In an interview on myartspace.com, for example, Steven Bogart, asked about his position on copyright, says simply, “Artists have a right to control their images and the right to be credited. ”

He might wish it so, but it isn’t so. Plainly, the lawsuits that result in findings that the use of copyrighted works are non-infringing fair use of copyrighted works all involve uses over which the artists have no control. If they had control, there’d be no lawsuits. Nor does fair use require crediting the artist whose work is used without consent.

There are many, many reasons underlying the fact U.S. law does not treat the product of creative expression like it treats personal or real property. Among them may be some comprehension that creativity is not the individual act of divine inspiration that Romantic poets believed and that in fact resulted in the rise of copyright as we know it.

But another, and very American reason U.S. law does not treat the products of creative expression the same ways it treats land holdings or the products of manufacturing is that the use of creative expression, authorized or not, is itself expression, and the freedom of expression is at the very core of what it means to be American. The fair use doctrine, which allows the use of copyrighted materials in certain circumstances without the consent of the owner of the copyright, is based squarely on the First Amendement’s guarantee of the freedom of expression.

Accordingly, in determining whether the unauthorized use of copyrighted work is non-infringing fair use, courts look at, among other things, whether the challenged use has a negative impact on the commercial market for the copyrighted work. While the commercial damage to the copyrighted work is a significant factor, Christina Bohannon, a law professor at the University of Iowa, believes that the importance of the right to free speech should require that it should be required in order for a court to find infringment. As she explains in the abstract to her paper, “Copyright Harm and First Amendment,” a showing of harm is required in every single other constitutional restriction on free speech and there is no justification for treating copyright differently:

Copyright law is a glaring and unjustified exception to the general rule that the government may not prohibit speech without a showing that the speech causes harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant’s speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is not always required and is so poorly defined that the concept has become circular. Moreover, the defendant ordinarily bears the burden of proof to show the absence of harm. As a result, courts often find liability for infringement (and therefore burden speech) where harm is purely speculative.

Potential explanations for copyright’s anomalous treatment are unpersuasive. Copying involves speech as well as conduct, and the fact that copyrights are in some sense property does not come close to justifying its aberrant treatment. Moreover, copyright’s role in encouraging creative expression does not obviate First Amendment concerns. Rather, it provides a way to reconcile copyright law and free speech. Drawing substantially from First Amendment cases holding that speech restrictions must be justified by a governmental interest, this article argues that the First Amendment requires real proof of harm to the copyright holder’s incentives in order to impose liability for copyright infringement. It also explores the types of harm that might arise in copyright infringement cases and considers whether the First Amendment permits recognition of these types of harm. The article concludes that although demonstrable market harm is cognizable under First Amendment principles, recognition of harm to the reputation of copyrighted works, the author’s right not to speak or associate, or the copyright holder’s privacy interests is generally not compatible with the values of free speech.

Of course, I could say in response to Professor Bohannon the same thing I say to those who say artists do have the right to control their work and to attribution for any use of their work. You may wish it were so, and there may even be reasons to believe your position merits my sympathy, but that assertion isn’t the law and doesn’t make it the law.

Don’t let history disappear, redux.

Last week one of my most engaged students came to me and said, “The New Deal didn’t help the recovery from the Depression.  It was entirely World War II.”  I sighed.  The reason he might believe what he said is true is because he’s a Republican and he has been listening to the arguments for their near unanimous congressional opposition to the Obama administration’s efforts to help the economy.  As the New York Times reports today:

For more than half a century, America’s political leaders – Republican and Democrat – have sought to wrap themselves in the legacy of Franklin Delano Roosevelt, the man credited with replacing fear with hope and ending the Great Depression. But in recent years some writers and economists have been telling a version of this story that is quite different from the one generally taught in school or seen on the History Channel.

In this interpretation Roosevelt is a well-meaning but misguided dupe who not only prolonged the Depression but also exacerbated it. For many people, it’s like hearing that Little Red Riding Hood’s grandmother and not the wolf is the rapacious killer.

Since the financial crash this fall, the revisionist look at the Great Depression has attracted new attention . . . . But more than that, it has become an intellectual banner for Republican opponents of the Obama administration’s ambitious bailout and stimulus proposals.

Amity Shlaes, a syndicated columnist who works at the Council on Foreign Relations, helped ignite this latest revisionist spurt with her 2007 book, “The Forgotten Man: A New History of the Great Depression.”

“The deepest problem was the intervention, the lack of faith in the marketplace,” she wrote, lumping Herbert Hoover and Roosevelt together as overzealous government meddlers.

The current financial crisis, as well as continuing praise from conservatives, helped propel the book back onto the Times best-seller list in November. Jonathan Alter, an editor at Newsweek and the author of “The Defining Moment: FDR’s Hundred Days and the Triumph of Hope” – which has also benefited from the renewed fascination with the 1930s – calls Ms. Shlaes’s book a “taste badge,” flaunted by Republicans looking for a way to oppose the administration.

Today’s article didn’t do much but explain there is this revisionist view and that it is the intellectual basis of the Republicans’ current political positioning.  Intead, it more or less gave a “he said, she said” account of the “competing theories about the Depression and the New Deal” as they were articulated  “at a conference at the Council on Foreign Relations’ New York headquarters, co-hosted by the Leonard N. Stern School of Business at New York University, and partly organized by Ms. Shlaes.”

There are plenty of good critiques of Ms. Schlaes, including Eric Rauchway’s in Slate, and, on a regular basis, Paul Krugman (here, for example). Even political allies, like Megan McArdle, find the fashionable right wing view Shlaes popularized and the Republican party has adopted as its own to be gross caricature:

The problem is that Shlaes way, way, way overstates her case.  There is an academic argument that the National Recovery Administration prolonged the Great Depression . . . . But the Great Depression is complicated, and it’s hard to make the case that government intervention was the main problem with the economy.  As economic history, the book is interesting if one sided.  But as an argument, it leaves a lot to be desired.

But reading political rhetoric is a poor substitute for an immersion in history.  I am lucky that my father at 85 is as sharp, energetic, and passionate as ever, and his memories of growing up poor in the Thirties and the profound differences FDR made are vivid.  Reading books rather than mere opinion pieces is important too.  I recommend strongly David Kennedy’s Freedom From Fear: The American People in Depression and War, 1929-1945 (Oxford History of the United States).

Maybe it’s that we’re a “sound bite” culture.  I don’t know.  But in my adulthood, which more or less began with Ronald Reagan’s flip dismissal of all governmental action as the problem, not the solution, I’ve continually been shocked at the frequency with which people are ready to accept without question that premise and its counterpart — that unregulated markets are wiser than any human institutions can ever be and always are the best solution.

Curly takes the stand.

Hat tip to Minor Wisdom.

We have lost too, too much. Don’t let history disappear.

I am not sure at all that my students understood that Wednesday morning last November that we were living in an extraordinary historical moment, that I could not have imagined growing up that a black would be elected President.  I try too to explain to my son how horrific a year 1968 was to me as a boy of almost 9.  41 years ago tomorrow Martin Luther King was killed.  Two months before King’s assassination, the Viet Cong began the Tet Offensive, which made plain to to most Americans that winning the Vietnam War would require more resolve than it was worth. Less than one month after King’s assasination, a combination of a nationwide workers’ strike and student uprisings led to street fighting in Paris that verged on genuine revolution.  One month after that  Bobby Kennedy was shot dead just moments after winning the Democratic primary in California, thereby appearing to have gained the electoral momentum to get the party’s nomination and, I think likely, to be elected President on a strong anti-war platform.  But the Democrats imploded later during their convention in Chicago, where Mayor Daly loosed his police force on anti-war protestors, whom the cops outnumbered 5 to 1.  In August, Soviet tanks rolled into Prague and crushed the brief brigtht moment known as the Prague Spring, a moment that the SolVidarity uprising 21 years later in Gdansk echoed, an echo that made anyone who remembered 1968 skeptical that 1989 would be any different.  In November of 1968 Richard Nixon was elected President, which resulted in an escalation and expansion of the war in Southeast Asia (and the straight line from there to the Khmer Rouge’s genocide in Cambodia) and an administration which used its governmental powers to silence people it explicitly identified as its “enemies” and engaged in criminal enterprises to ensure it would remain in power. It was a very scary time.  Today is no golden age, but it’s much, much better than 1968.  We need to remember that.  And, believe it or not, historical memory is an important issue in arguments over the rights of copyright holders to control the use of their works.

Greenberg v. AIG: the evidence and the truth

The difference between journalists and lawyers?  Journalists, at least as they practice their craft these days in this country, practice a pretended objectivity by giving voice to both sides of a dispute.  I presume the purpose is to leave the reader to be the judge.  It’s a way of going about thet job that gives the impression of being as fair as it is possible to be.  Fox News has grounded its entire image  in precisely this perception of what is most fair: “We report, you decide.”

I’ve bemoaned before the absence of critical thinking that goes into this style of reporting.  The New York Times is at it again today, this time on a subject far more important than whether a hot artist’s most valuable products infringe the copyrights of other creators — how AIG got our country into the financial mess it’s in and whether we ought to trust the people who brought us here to lead us out.  Hank Greenberg, the long-time head of AIG who was deposed in 2005, testified yesterday to Congress and claimed that the Obama administration should have let AIG go bankrupt, that the administration’s policies have deprived AIG of its most valuable assets by driving off the people who led AIG into its catastrophic state, and that Mr. Greenberg’s policies — which included the creation of the credit default swaps that “insured” the mortgage backed securities that were doomed to failure — had nothing to do with the eventual failure of AIG.  He might not have provided reserves to allow AIG to afford the liabilities it had assumed when it sold the credit default swaps (thereby earning itself enormous amounts of money, profits that of course contributed to the fortunes made by Mr. Greenberg and the other geniuses who our government has driven away), but, he says, he would have set aside reserves to meet those liabilities (thus averting the necessity of the bailout) had he been allowed to stick around.

The story does give the other side of the story, quoting a spokesperson for the current management of AIG contradicting Mr. Greenberg and asserting flat out that he lacks any credibility:

“Hank Greenberg continues to deny his role in allowing [AIG's Financial Products Division] to write the multisector credit-default swaps which sowed the seeds for AIG’s troubles,” the company said, referring to the financial products unit. It went on to denounce Mr. Greenberg as evading questions and lacking credibility as a business strategist.

“He refuses to acknowledge that he approved entry into the credit-default swap business, approved more than $40 billion of swaps written on C.D.O.’s containing subprime loans, and didn’t hedge or put up reserves against them,” the company said. Collateralized debt obligations are securities made from pools of loans and other forms of debt.

“We don’t understand how he can be viewed as having any credibility on any AIG issue.”

My problem with this type of journalism is that it doesn’t make judgments that can be made.  It often may be difficult to tell right from wrong with certainty, but there are often clear judgments to be made about which position is better and which worse.  Mr. Greenberg’s self-interest in these matters, his lifetime of self-promotion in the interests of building an immense personal fortune, and his rank hypocrisy are legendary.  A journalist is capable of giving both sides of an argument and of understanding context and making judgments.  To fail to do so leaves the reading public to do that work themselves, something that people simply don’t have the time to do.

Lawyers, on the other hand, do contend always with adversaries setting forth evidence that seems to contradict the evidence they are presenting on behalf of their own clients.  But setting forth the evidence is only part of a lawyer’s job.  The lawyer also structures that evidence into arguments on behalf of his client’s position, explaining specifically how that evidence should be viewed.  Then decision makers (juries, judges, arbitrators, etc.) decide.  The lawyer doesn’t rely on the decision-maker to figure out how to explain the evidence.  The lawyer gives the decision-maker the means of understanding it.

I don’t know why journalists don’t do so more often.

The financial crisis is an opportunity for innovation in legal practice and law schools.

This blog is supposed to be about law and innovation — both the ways law affects innovative and creative endeavors and the ways creativity informs the practice of law.  I’m not sure where I go t the nerve to believe I have something worth saying on these matters, but it is gratifying when I find out that I’m not entirely empty-headed.  The New York Times yesterday published an editorial observing that the economic downturn is hitting the legal profession just as profoundly as it is hitting any other occupation.  As the Times notes, The “American Lawyer is calling it ‘the fire this time’ and warning that big firms may be hurtling toward ‘a paradigm-shifting, blood-in-the-suites’ future.” The thrust of the editorial, though, is that crisis is an opportunity for change and that the legal profession is much in need of change: “The silver lining, if there is one, is that the legal world may be inspired to draw blueprints for the 21st century.”

I am not at all happy with the job market, especially for my students.  They are talented, well educated, and hard working people who will do a lot of good for their clients.  But I am gratified that the types of changes the Times are ones I’ve long believed are important.  I do believe the U.S. legal system is a brilliant embodiment of practical justice, but it’s biggest defect in achieving justice is its cost.  It is appalling that achieving any sort of justice against any adversary willing to fight you (regardless of the merits of his cause) will invariably cost you enormously.  The fact someone whose position has little or no merit can make you expend enormous amounts of money to prove the demerits of his claims undermines justice by tilting the entire system radically in favor of the more wealthy members of our society. The internet has brought home this phenomenon to artists who want to make their work available and to people who want to post their family videos, but it will be one familiar to anyone who has called upon the legal system or been dragged into it, whether through divorce, the need to obtain payment from one’s customers, the need to get relief from economic or physical threat, or any of the myriad other ways one might need to call upon legal process to attain justice.

Two ways the economy will force down the costs of using lawyers are (1) the salaries of lawyers at the top end (which the Times notes begin at $160,000 at the wealthiest law firms) will have to be reduced and (2) the reduction of money available to spend on lawyers will mean “more leverage to push . . . for successful outcomes” on the part of those who have traditionally been less well financed.

Moreover, law firms will have to change their billing practices, replacing the “billable hour,” Law firms also, of course, will have to come up with more efficient ways of delivering their services.

The Times also suggests the economic crisis might require law schools to “become more serious about curricular reform,” in particular by “including more focus on practical skills.”  I could not agree more — making clear the inextricable bond between legal theory and legal practice has been central to my work as a law professor.  I don’t understand how you can teach law without understanding how it works.  My conviction is evidenced, I hope, by the school i’ve chosen to teach at this year and (at least) next, the University of Detroit Mercy Law School.

But I am skeptical of the power of the economy to change law schools.  Lawyers and judges have for a long time called for  law schools to focus more on training lawyers (rather than teaching legal theory in a way that makes sense primarily to law professors, not lawyers or judges), and still the changes have been very, very slow and very, very minor.  Law schools do not look to their success at training lawyers to guide their curriculur decisions; rather, they principally look to a rankings system that rewards law schools that admit students most like the students at the schools that are already the highest ranked. That’s a formula to entrench the status quo, not a formula for change. Nor does the critique from within law schools of the most influential rankings system really do much to solve the institutional deference to the status quo.  Brian Leiter, a law professor at the University of Chicago, publishes his own rankings and regularly critizises the most influential rankings, but even he relies principally in judging law schools on the “scholarly reputation” of faculty (which is largely based on where the professors teach and the law reviews in which they publish, both of which are merely indicators of how well those professors fit the prevailing view of quality) and student undergraduate grade point averages and LSAT scores (both of which correlate to success as law students, not as lawyers).

It cannot hurt, though, that the New York Times has joined the chorus calling for law school’s to focus their curricula more on the practice of law.

Who should most influence the creation and intepretation of our laws?

Where did our laws go wrong and help create the current financial crisis?  My own experience over the 28 years since I began law school has been that at the intellectual level we have become more and more enamored of the idea that the free market is the best measure of all value and that at the professional level we have become more and more obeisant to the financial industry.  Markets do a lot of good, but it boggles my mind when complex legal problems involving competing values and belief systems are in facile ways reduced to a weighing of measurable quantities.  And the investment bankers I worked among during my years as a lawyer in New York City were bright, but they were no smarter than the lawyers, painters, non-profit fundraisers, contractors, social workers, doctors, nurses, teachers, writers, and engineers I knew.

As Simon Johnson, a Professor at MIT’s Sloan School of Management and former chief economist of the International Monetary Fund, points out in the Atlantic, it might precisely be our willingness to defer politically to the people we referred to as financial “wizards” that got us in this mess:

Top investment bankers and government officials like to lay the blame for the current crisis on the lowering of U.S. interest rates after the dotcom bust or, even better—in a “buck stops somewhere else” sort of way—on the flow of savings out of China. Some on the right like to complain about Fannie Mae or Freddie Mac, or even about longer-standing efforts to promote broader homeownership. And, of course, it is axiomatic to everyone that the regulators responsible for “safety and soundness” were fast asleep at the wheel.

But these various policies—lightweight regulation, cheap money, the unwritten Chinese-American economic alliance, the promotion of homeownership—had something in common. Even though some are traditionally associated with Democrats and some with Republicans, they all benefited the financial sector. Policy changes that might have forestalled the crisis but would have limited the financial sector’s profits—such as Brooksley Born’s now-famous attempts to regulate credit-default swaps at the Commodity Futures Trading Commission, in 1998—were ignored or swept aside.

The problem is that, as Joan Walsh points out, the Obama administration’s efforts to “fix” the financial industry seem to perpetuate the misplaced reliance on the financial industry that the Democratic Party started back in the Clinton administration and that continues, unabated, to this day in the actions of Tim Geithner and Charles Schumer, the Democratic senator from New York.

Perhaps, though, we’re in on the beginning of a trend in a direction other than the one we’ve taken in the 30 or so years of my professional life.  With the demise of investment banks we’ll no longer see the best and the brightest of our college graduates flowing into investment banking and financial consulting jobs.  At a recent job fair at Columbia University, Kevin Long, a recruiter for Environ, which provides international consulting services on environmental sustainability, cleanup and other issues, was quoted as follows:

We’re delighted. In the past, we have had to compete with investment banks, hedge funds people that were pulling the best engineers and scientists out of these schools. And this year, because of the conditions of the economy, we’re getting an opportunity to go after those students.

Who knows?  If the people we consider the smartest are engineers and medical providers and social workers, maybe we’ll pass laws that enrich them rather than laws that enrich investment bankers.  And maybe that will be better.  Certainly it will bring in a broader range of views.  I don’t mean we should ignore the financial industry, but we should realize when someone tells us by making laws and policy that are intended to directly enrich them we will indirectly be doing ourselves the greatest good, we should perhaps start checking our wallets.

I think we should shoot puppies!

There — that headline should ensure I never can be confirmed for federal office.

Dawn Johnsen, a law professor at the University of Indiana, is President Obama’s nominee to head the Justice Department’s Office of Legal Counsel, which ” provides authoritative legal advice to the President and all the Executive Branch agencies.”  It’s the office that produced the “torture memos,” those shockingly ill-reasoned legal fig-leafs for the Bush administration’s policies regarding the treatment of “detainees in the War on Terror.” Ms. Johnsen was an “unsparing critic” of those memos.  As a result, Senate Republicans are threatening to filibuster her nomination.  But that’s not the reason they are expressing.  What is their pretext?  Twenty years ago in a footnote of a brief she wrote in a lawsuit in which she represented the National Abortion Rights Action League, she wrote that “forcing a woman to bear a child when she had no desire to do so was ‘disturbingly suggestive of involuntary servitude.’” Thus, the Republicans threatening filibuster say, she has “equated abortion with slavery” and is therefore unqualified to fill those posts once occupied by John Yoo and Jay Bybee (currently a tenured law professor and a federal court of appeals judge, respectively), who purported to provide legal justification for the waterboarding and beatings of U.S. prisoners.  (The torture, of course, ensured that we can never bring the terrorists subject to it to justice since no U.S. court would ever consider the evidence obtained by torture reliable enough to convict those terrorists.)

The Republicans are also threatening to do all they can to block the nomination of Harold Koh to be legal counsel to the State Department.  Koh is the dean of Yale Law School.  Why is he unqualified to fill the job he’s nominated for?  Because, purportedly, he thinks “Sharia law could apply to disputes in U.S. courts.” This stuff is actually taken seriously. Even though none of it is true.

I’m flabbergasted.  Effective persuasion and argument require being open to all sorts of ideas, but it also requires constraints — one cannot persuade with unpersuasive arguments.  But whether justifying torture or opposing perfectly reasonable people who happened to oppose the justification of torture, there seems to be a remarkable willingness to rely on the hope that whatever one says, no matter how empty or absurd, will have an impact.  It reminds me of the “Obama pals around with terrorists” line.  Since he had professional connections with Bill Ayers 30 years after Ayers’ days in the Weather Underground, we were supposed to imagine Obama hangs out on his off days with his friends from Al-Qaeda.  I would expect the U.S. Senate could have as much sense as the entire electorate demonstrated last November in rejecting those ridiculous arguments.  So far, it seems, I’m wrong about the Senate.

The rise of the conservative legal movement

Over at Firedoglake there is an interesting discussion going on in the comments to a blog post between readers and Steven M. Teles, the author of The Rise of the Conservative Legal Movement.

There is no question in my mind that this country’s legal community has become enormously more open to arguments that assume the wisdom of unregulated free markets and the primacy of property rights in the 28 years since I began law school. “Law and Economics,” an ill-defined legal movement that exclusively applies economic criteria to legal decision-making has gone from being a set of arguments to consider on issues that plainly were economic in nature to an all-encomp0assing explanation of legal decision making in any and all situations.  The Federalist Society, an enormously well organized and well funded organization that coordinates the activities and thoughts of its members from cradle (their first days in law school) to grave (lifetime appointments on the Supreme Court), has gone during that time from non-existent to enormously influential. As the post explains:

Legal academics shape the ways in which judges think and in which bureaucrats administer programs. Judges for their part play an active political role, making decisions that define the contours of politics, often telling elected politicians what they can and cannot do. And lawyers often become politicians. Hence, the law is a key arena of political battle. A generation ago, conservatives were badly out-gunned in this arena. They were badly outnumbered and intellectually underpowered. Now, they are in a position of considerable importance. Republican appointees are a majority on several key appelate courts. Conservative ideas about the limits of politics and the vital importance of markets have reshaped the law’s intellectual basis. And the US Supreme Court has shifted sharply to the right.

Thus, as Rachel Morris puts it, Teles’ book explains the conservative impact on our legal system not as some sinister right-wing plot but, rather, as an intellectual movement:

The story of how conservative lawyers extracted themselves from the wilderness is often cast as a sinister tale, as if the Federalist Society were an affiliate of the hooded and robed cabal that Tom Cruise infiltrates in Eyes Wide Shut. Steven Teles, a political scientist at Johns Hopkins University and a fellow at the New America Foundation, offers a more rational take in The Rise of the Conservative Legal Movement, and in a new article in Studies in American Political Development. However, with Alberto Gonzales’s blank stare lingering in the mind’s eye, Teles’s assessment still sounds quite outlandish: he suggests that the real secret of the movement’s success was its thirst for ideas and intellectual debate.

I’ll follow the discussion with Teles closely. I highly recommend it.