Is there a connection between the failure of law schools to teach legal practice and the 2d class status of those who do teach legal practice?

I have of course made the point that law schools oddly enough do not emphasize training their students to be lawyers. Some even say law schools are woefully inadequate in doing so.

I can’t help but think there’s some connection between this disconnect of the academy from the profession and the fact that the people in law schools who do focus on teaching students how to practice law are generally not tenure track faculty. They are what Peter D.G. Brown in “Confessions of a Tenured Professor” calls “contingent faculty.” Although he is writing about college faculty, his observations certainly have their analogs in law schools:

I must confess that belonging to the de facto elite minority makes me very uneasy. Most tenured faculty view themselves as superior teachers with superior minds. In this view, the arduous six-year tenure process clearly proves that all of us are superior to “them” and have deservedly earned our superior jobs by our superior gifts and our superior efforts. I must also confess that we tenured faculty really do appreciate the fact that ad-cons have unburdened us from having to teach too many elementary foreign language courses, English composition and the many other tedious introductory, repetitive and highly labor-intensive classes, to which we tenured souls have such a strong aversion that it must be genetic.

And so we have “a two-tiered system where [tenured faculty] make at least three times as much per course as [contingent faculty] and enjoy all the other wonderful perks of tenure: lifetime job security and the academic freedom it provides, regular opportunities for advancement and promotion, comfortable pensions, large furnished offices, telephones, computers, sabbaticals and other generous leave opportunities — the list goes on and on.”

Brown is genuinely shocked at what legal writing professors and clinicians know too well is the predominant view of the “scholars” on law school faculties:

I confess that I must have been overly naïve, but I was utterly dumbfounded when an administrator repeatedly told me that he saw no value whatsoever to the institution in keeping any adjunct instructors more than a couple of years, after which they ought to simply move on and find something else to do. I’m sure my tenured colleagues would find it totally unacceptable if they could be told at the end of any semester that they should simply leave, that there was no value to their accumulated expertise, thank you, because the college wished to hire a fresh young face at a lower salary.

Brown is worried about the effects of this two-tier system on students, just as I am about the focus by law faculties on legal scholarship at the expense of legal practice:

It is time that more tenured faculty woke up to the fact that their entire professional existence, replete with their comfortable incomes, their fascinating research, their coveted sabbaticals, their agreeable teaching loads of less labor-intensive and more satisfying courses — all this is made possible by the indispensable efforts of a million ad-cons doing so much more for so much less. Equitable compensation, health and retirement benefits, opportunities for advancement and professional development: all these should be available for everyone in higher education and are long overdue. Since teachers’ working conditions equal students’ learning conditions, it is a truly deplorable message we are sending our students!

His description of non-tenure track faculty at the college level matches my experience at the law school level: they “are trying desperately to find summer work, praying that their cars will run for another year and wondering if their children will even be able to afford college.” Moreover, these professors “typically focus on teaching, and the precarious nature of their employment drives them to excel in their classroom performance. Not surprisingly, they often have a more lively interest in developing innovative pedagogy.”

And so Brown issues a call for action from his tenured colleagues:

Tenured faculty members across the country need to wake up now and begin to play a crucial role in supporting equity for their contingent colleagues. . . . If more tenure-track faculty would summon the courage to speak out in support of their fourth-class colleagues, it could really make a decisive difference . . . . Not only are tenured faculty members largely immune from retaliation; they possess widespread credibility plus significant monetary and other resources to help tip the scales in favor of equity.

A lesson for Rand Paul in the differences between the Constitution and statutory law

In the interview below with Rachel Maddow, Rand Paul is taking the position that got Robert Bork’s nomination to the Supreme Court rejected — that the federal government in the Civil Rights Act of 1964 should not have outlawed private businesses open to the public from discriminating based on race.

Moreover, he is just plain wrong to suggest that the impact of the Civil Rights Act on private businesses is the same as the impact gun rights advocates argue the 2d Amendment to the Constitution should have — Paul says those gun rights activists are arguing that private businesses, including restaurants, do not have the right to ban them from carrying guns inside those businesses.

He’s just plain wrong because the Constitution only bans discrimination based on race by government, and it only protects the right to bear arms against restrictions imposed by the government. It is a statute passed by Congress – the Civil Rights Act of 1964 — that bans private businesses open to the public from discriminating based on race. There is no such statute requiring private businesses to restrict one’s right to bear arms.

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Princeton values money-grubbing over open contribution to current political debate.

Whether or not it is merited, there is considerable political import being attributed to Elena Kagan’s college thesis, a study of the collapse of Socialism as a political movement in the U.S. in the early decades of the 20th Century. On the far right, the thesis is being touted as proof that “Elena Kagan is an open and avowed socialist.” Slightly less conclusory, the Weekly Standard acknowledges that “[o]bviously, one imagines that Kagan’s views have evolved significantly over the last three decades” since her work as an undergraduate, but asserts that “it’s certainly worth noting the radical roots of the nation’s top lawyer.”

What is this evidence of the “radical roots” of Elena Kagan’s thinking? In the conclusion of the 130 page undergraduate paper that describes the political dissolution of the organized socialist political movement in New York City during the first couple of decades of the 1900s — largely due to the conflicts the Socialists came into with the Communists —  she wrote:

In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness. Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation. Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nation’s established parties? . . .

Through its own internal feuding, then, the [Socialist Party] exhausted itself forever and further reduced labor radicalism in New York to the position of marginality and insignificance from which it has never recovered. The story is a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America. Radicals have often succumbed to the devastating bane of sectarianism; it is easier, after all, to fight one’s fellows than it is to battle an entrenched and powerful foe. Yet if the history of Local New York shows anything, it is that American radicals cannot afford to become their own worst enemies. In unity lies their only hope.

Ben Smith of Politico concludes that the thesis is written “from a general sympathetic position,” but that really what it all adds up to is her “practical minded conclusion” that “for those who . . . still wish to change America” the lesson is “[i]n unity lies their only hope.”  Smith concludes that “if there is a takeaway for the Kagan of today, I think it’s that practical-minded conclusion, and the sense that she is, in the end — and like Obama — a very practical pol.”

Andrew Leonard takes an even more pro-Kagan view of the thesis, concluding that it proves her “a superb writer who grounds her argument in scrupulous attention to historical detail.” Leonard, while he may be over-inflating the importance of undergraduate work, at least recognizes that the thesis cannot be viewed as propaganda but, instead, involves a complicated history completely ignored by those who would reduce political debate to simplistic labels like “socialist” or “fascist” or “conservative” or “liberal.” The history Kagan addressed in her thesis involved the fight against the truly atrocious labor standards faced by U.S. factory workers, and to ignore that context and how far we’ve come would be to engage in stupidity. Leonard writes:

Kagan makes a pretty good case that sectarian bickering and factionalism doomed the Socialist Party to irrelevance. The leaders of the New York Socialist Party embraced a moderate, accommodationist approach to improving worker conditions that put them at odds with rank-and-file workers who tended to be more militant. This made it easy for Communist Party organizers to infiltrate the garment worker unions and challenge the Socialist Party leadership’s control. Ultimately, a disastrously mishandled strike destroyed the credibility of both the Socialist and Communist factions, and worker demands for better conditions were sublimated into Roosevelt’s New Deal.

It would be stupid to infer what I believe now from what I wrote as an Ivy League senior in 1981. Yes, I’m Kagan’s precise contemporary. It is also stupid to run fearfully under the cover of words like “socialism” and “radicalism” without understanding that the history of a century ago that Kagan did write about nearly 30 years ago involved fights against injustice in which almost everyone in this country today would side with the “socialists” and “radicals.” I don’t think we want to return to the days when labor in this country was treated the way labor is in, say, China today.

But perhaps the stupidest thing of all is this: as Techdirt reports, Princeton has asserted that distribution of the thesis infringes the university’s copyright in it and has demanded that it be taken down from sites that have posted it.  ”The University is selling copies of her thesis, and apparently the commercial value just shot up:

It has been brought to my attention that you have posted Elena Kagan’s senior thesis online…. Copies provided by the Princeton University Archives are governed by U.S. Copyright Law and are for private individual use only. Any electronic distribution is prohibited, as noted on the first page of the copy that is on your website. Therefore I request that you remove it immediately before further action is taken.

Even assuming the newsworthiness of the thesis, its age, the youth and inexperience of its author and other factors do not make posting the thesis a non-infringing fair use, Princeton’s move is just stupid. One year ago, Princeton’s endowment was nearly $13 billion. Money-grubbing over a few bucks to be made on a new-found asset in the undergraduate work of a student from 30 years ago hardly seems a worthy of an institution that prides itself on conferring true genuine education to its student body and wisdom to the world.

It’s not where you take things from—it’s where you take them to.

From Jim Jarmusch’s Golden Rules, which are about film making but have an awful lot of relevance to the practice of law:

Rule #1: There are no rules. There are as many ways to make a film as there are potential filmmakers. . . . Therefore, disregard the “rules” you are presently reading, and instead consider them to be merely notes to myself. One should make one’s own “notes” because there is no one way to do anything. If anyone tells you there is only one way, their way, get as far away from them as possible, both physically and philosophically.

Rule #2: Don’t let the fuckers get ya. They can either help you, or not help you, but they can’t stop you. . . .

Rule #3: The production is there to serve the film. The film is not there to serve the production. . . .

Rule #4: Filmmaking is a collaborative process. You get the chance to work with others whose minds and ideas may be stronger than your own. . . . [T]reat all collaborators as equals and with respect. A production assistant who is holding back traffic so the crew can get a shot is no less important than the actors in the scene, the director of photography, the production designer or the director. Hierarchy is for those whose egos are inflated or out of control, or for people in the military. Those with whom you choose to collaborate, if you make good choices, can elevate the quality and content of your film to a much higher plane than any one mind could imagine on its own. If you don’t want to work with other people, go paint a painting or write a book. . . .

Rule #5: Nothing is original. Steal from anywhere that resonates with inspiration or fuels your imagination. Devour old films, new films, music, books, paintings, photographs, poems, dreams, random conversations, architecture, bridges, street signs, trees, clouds, bodies of water, light and shadows. Select only things to steal from that speak directly to your soul. If you do this, your work (and theft) will be authentic. Authenticity is invaluable; originality is nonexistent. And don’t bother concealing your thievery—celebrate it if you feel like it. In any case, always remember what Jean-Luc Godard said: “It’s not where you take things from—it’s where you take them to.”

Art builds on art, be it Shepard Fairey’s Obama Hope poster or the re-tellings of myths and legends.

I have made clear, at length, my view that Shepard Fairey’s Obama Hope poster is a legitimate, non-infringing fair use of the photo Fairey appropriated as its source material. But I think Fairey himself expresses well in this interview from The Knowledge the basis of that belief, that the very nature of a lot of art (and, I might argue, all art) is to build on and refer to pieces of the culture in which we live and that without the freedom to appropriate pieces of that culture in ways that don’t merely exploit the value the creators of those pieces themselves have built we will diminish our culture. Fairey explains:

“I do think that copyrights and intellectual property are important—it’s important to be able to keep people from making verbatim copies of a particular creation that could somehow hurt the creator. If I spend time conceiving and making a piece of art and somebody else sees that it has market value and replicates it in order to steal part of my market, then that’s not cool. But the way I make art—the way a lot of people make art—is as an extension of language and communication, where references are incredibly important. It’s about making a work that is inspired by something preexisting but changes it to have a new value and meaning that doesn’t in any way take away from the original—and, in fact, might provide the original with a second life or a new audience.”

He goes on to explain, in terms that are very personal to me, the implications of an alternative view, often referred to as a position in favor of “strong” copyright protection”:

“The problem with copyright enforcement is that when the parameters aren’t incredibly well defined, it means big corporations, who have deeper pockets and better lawyers, can bully people. I don’t want to start making enemies in the corporate world, but there are plenty of cases. For example, there is a tradition of certain fairy tales being reinterpreted, and now, all of a sudden, a big corporation that has a mouse on its logo decides it’s going to copyright these fairy tales, which ends the cycle of these things being reinterpreted. What happens with these big entertainment companies is that they start to get a monopoly on the creation of culture. But I think that the more people participate in the creation of culture, the richer the culture becomes. In the case of the Obama poster, I was just exercising my First Amendment rights—and my free speech is exercised visually. People who want to talk or write in order to share an opinion about Obama can do that, but when I want to say what I think about him, I need to make a portrait. And if I can’t make a picture based on a reference because all references are copyrighted, then my only options are to pay a licensing fee—and possibly be turned down because the person licensing the image doesn’t agree with my political viewpoint—or to try to get a personal sitting with Barack Obama to make a portrait of him, which presents its own obstacles. So I don’t think all this is good for free speech.”

This is a personal matter because my sister, Amy Friedman, writer and teacher extordinaire, has for twenty years written on a weekly basis versions of fairy tales, folk tales, and legends from around the world and throughout history, an enormous corpus of work that is syndicated by Universal Press Syndicates under the name Tell me a Story (entire archive available). Needless to say, copyright concerns throughout this decades long endeavor, only one of many in which she engages, have been foremost in her mind, but there has never been any doubt either that her stories, while based on pre-existing creations from as many cultures and as many times as are virtually conceivable, are legitimate art in their own right and, therefore, enjoy their own copyright protection.

Amy’s story is important in another way. Not only would the Disney’s of the world co-opt the subject matter she makes her own, but she also is an artist in the truest sense. She is not a best-selling author. No one I’ve ever known works harder, and working at making a living as a writer, as she always has, is as difficult a task as one would wish upon a sister. She doesn’t depend on her copyrights to make her living — she depends on delivering a product that consumers want, whether they be students or parents who want wonderful audio stories for their kids. People like Mark Halperin, rich best-selling author and conservative pundit, , who bitch about copyright protection don’t know what they’re talking about. They live in an age in which digital information can be remixed and distributed worldwide by anyone with a laptop and an internet connection, an age in which their views of authorship and artistic production are, in a word, outmoded. The real artists are people like Amy, who eke out a living (one whose comfort level she expresses no complaints about).

Elena Kagan is no blank slate, and to say otherwise is to spout lies.

Enough already with this myth that Elena Kagan is a blank slate, typified by Michael Gerson: “The most prominent thing about Kagan is her extraordinary ability, while holding high-profile jobs in the legal profession, to say nothing on the major issues of the day.”

As I explained yesterday at some length, there’s good reason to believe Kagan will be forthcoming in her confirmation hearings about precisely what Gerson states it would “be helpful to know”: “her political, legal, and constitutional views.”

But even more importantly, this view that Kagan has been silent on political, legal, and constitutional issues is pure fiction. SCOTUS Blog, in almost 10,000 words, summarizes her career, and includes links to her legal scholarship. Eugene Volokh, no liberal, writes the following:

Kagan was a working scholar from 1991–95, and then 1999–2003. Between those years, she worked in the Clinton Administration; after those years, she was dean at Harvard Law School, a position that these days leaves its holder with very little time to do serious scholarship. In those eight years, she wrote or cowrote four major articles (linked to here), Presidential Administration (Harv. L. Rev. 2001), Chevron’s Nondelegation Doctrine (Harv. L. Rev. 2001, cowritten with David Barron), Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine (U. Chi. L. Rev. 1996), The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion (Sup. Ct. Rev. 1993). She also wrote three shorter but still substantial pieces, When a Speech Code Is a Speech Code: The Stanford Policy and the Theory of Incidental Restraints (U.C. Davis. L. Rev. 1996), Confirmation Messes, Old and New (U. Chi. L. Rev. 1995), and Regulation of Hate Speech and Pornography After R.A.V. (U. Chi. L. Rev. 1993).

Quantitatively, this is quite good output for eight years as a working scholar. It looks a lot smaller if one looks at her career from 1991 to 2009, when she was appointed Solicitor General — but for the reasons I mentioned above, that’s not the right way to look at it.

Moreover, two of her articles have been judged to be quite important by her colleagues. Presidential Administration has been cited 305 times in law journal articles (according to a search of Westlaw’s JLR database) — an extraordinarily high number of citations for any article, especially one that is less than 10 years old. In fact, a HeinOnline list of all articles with more than 100 citations, run in August 2009, reports that her article was at the time the 6th most-cited law review article of all the articles published since 2000. Many legal scholars, even ones working in the relatively high-citation fields of constitutional law and administrative law, have never and will never write an article that is so much cited.

Chevron’s Nondelegation Doctrine has been cited 75 times, a very high number for an article’s first 10 years; I suspect that only a tiny fraction of one percent of all law review articles are cited at such a pace. Private Speech, Public Purpose has been cited 129 times, likewise a very high number. The Changing Faces of First Amendment Neutrality has been cited only 36 times, but that probably stems in large part from the fact that Supreme Court Review articles from that era are not on Westlaw or Lexis (ridiculous, especially for a faculty-edited journal with the Supreme Court Review’s excellent reputation, and likely stemming from a short-sighted non-licensing decision by the University of Chicago Press).

And while some articles might be heavily cited because they fit with academic ideological fashions, I don’t think these would qualify.

Blank slate, my ass.

My favorite part of her writing is her may be her reminiscence of Justice Thurgood Marshall, for whom she clerked. It might be less in the scholarly mode, but it is perhaps as revealing as anything about what she would be like as a judge:

Justice Marshall thought all lawyers (and certainly all judges) should be reminded . . .  that behind law there are stories-stories of people’s lives as shaped by law, stories of people’s lives as might be changed by law. Justice Marshall had little use for law as abstraction, divorced from social reality (he muttered under his breath for days about Judge Bork’s remark that he wished to serve on the Court because the experience would be “an intellectual feast”); his stories kept us focused on law as a source of human well-being.

That this focus made the Justice no less a “lawyer’s lawyer” should be obvious; indeed, I think, quite the opposite. I knew, of course, before I became his clerk that Justice Marshall had been the most important-and probably the greatest-lawyer of the twentieth century. I knew that he had shaped the strategy that led to Brown v. Board of Education and other landmark civil rights cases; that he had achieved great renown (indeed, legendary status) as a trial lawyer; that he had won twenty-nine of the thirty-two cases he argued before the Supreme Court. But in my year of clerking, I think I saw what had made him great. Even at the age of eighty, his mind was active and acute, and he was an almost instant study.

Above all, though, he had the great lawyer’s talent (a talent many judges do not possess) for pinpointing a case’s critical fact or core issue. That trait, I think, resulted from his understanding of the pragmatic-of the way in which law worked in practice as well as on the books, of the way in which law acted on people’s lives. If a clerk wished for a year of spinning ever more refined (and ever less plausible) law-school hypotheticals, she might wish for a clerkship other than Justice Marshall’s. If she thought it more important for a Justice to understand what was truly going on in a case and to respond to those realities, she belonged in Justice Marshall’s chambers.

None of this meant that notions of equity governed Justice Marshall’s vote in every case; indeed, he could become quite the formalist at times. During the Term I clerked, the Court heard argument in Torres v. Oakland Scavenger Co. There, a number of Hispanic employees had brought suit alleging employment discrimination. The district court dismissed the suit, and the employees’ lawyer filed a notice of appeal. The lawyer’s secretary, however, inadvertently omitted the name of one plaintiff from the notice. The question for the Court was whether the appellate court had jurisdiction over the party whose name had been omitted; on this question rode the continued existence of the employee’s discrimination claim. My co-clerks and I pleaded with Justice Marshall to vote (as Justice Brennan eventually did) that the appellate court could exercise jurisdiction. Justice Marshall refused. As always when he disagreed with us, he pointed to the framed judicial commission hanging on his office wall and asked whose name was on it. (Whenever we told Justice Marshall that he “had to” dosomething-join an opinion, say-the Justice would look at us coldly and announce: “There are only two things I have to do-stay black and die.”

A smarter group of clerks might have learned to avoid this unfortunate grammatical construction.) The Justice referred in our conversation to his own years of trying civil rights claims. All you could hope for, he remarked, was that a court didn’t rule against you for illegitimate reasons; you couldn’t hope, and you had no right to expect, that a court would bend the rules in your favor. Indeed, the Justice continued, it was the very existence of rules-along with the judiciary’s felt obligation to adhere to them-that best protected unpopular parties. Contrary to some conservative critiques, Justice Marshall believed devoutly-believed in a near mystical sense-in the rule of law. He had no trouble writing the Torres opinion.

Elena Kagan, For Justice Marshall, 71 Texas L. Rev. 1125, 1127-28 (1993).

Confirmation Hearings for Supreme Court Nominees, Elena Kagan, and the mythical Borking of Robert Bork

During his confirmation hearings, prospective Chief Justice Roberts was questioned intensely about his respect for precedent, particularly in connection with Roe v. Wade. In keeping with the image he plainly intended to project as a true conservative, a non-activist who respects existing institutions, Roberts emphasized his respect for precedent. As I have previously written, Roberts’ purported respect for precedent didn’t prevent him recently from voting for and writing a concurring opinion in support of the Citizens United decision by the Supreme Court, a decision that overturned 100 years of precedent supporting congressional restrictions on corporate campaign contributions.

I bring this up because of how refreshing I find Elena Kagan’s views on the confirmation process. Ever since the rejection of Robert Bork’s nomination by Ronald Reagan, right wingers have defined the verb “to bork” to refer “to the way Democrats savaged Ronald Reagan’s nominee, the Appeals Court judge Robert H. Bork.” As a result, nominees since Bork have been careful to the point of absurdity to avoid revealing their views on their judicial philosophy or on particular judicial precedent.

But can anyone seriously believe that John Roberts would vote to uphold Roe v. Wade despite insisting, in connection with questions about it, on his respect for precedent? In advance of the Court’s decision in Citizen’s United, Jeffery Rosen wrote in the New York Times that Roberts could “support a narrow, restrained campaign finance decision that Republicans and Democrats can embrace, or he can hand down a broad, activist decision that turns our political system upside down.” Rosen expected the former because “when . . . Roberts became chief justice of the United States, he said that he hoped to emulate the modesty and unanimity of his greatest predecessor, John Marshall.”

We now know Roberts was lying.

It is worth keeping in mind, therefore, that  when he was nominated to the Supreme Court, Robert Bork

[P]romised to keep an open mind on the issue of abortion and the right to privacy. Liberal and moderate Democratic and Republican senators did not believe him, and they were right not to. Bork, after he resigned from the federal bench, admitted that he believed Roe v. Wade was wrongly decided and all but explicitly said that had he been on the Supreme Court he would have provided the fifth vote to overturn Roe v. Wade.

Sheldon Goldman, Judicial Confirmation Wars: Ideology and the Battle for the Federal Courts, 39 U. Rich. L. Rev. 871 (2004-2005), citing Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges at 71 (2003).

It’s worth noting Bork’s precise language in Coercing Virtue regarding Roe v. Wade and a later decision upholding it, Planned Parenthood v. Casey:

It is mind-boggling that citizens were admonished that accept Roe because they”must respect the “rule of law.” Both Roe and Casey are, in fact, crass violations of the rule of law; they are not rooted in any conceivable interpretation of the Constitution, and have nothing to do with “constitutional terms.”

This from the guy who said, in sworn testimony during his confirmation hearings, that he had an “open mind” about the constitutional basis for a right to privacy.

Why was Robert Bork rejected as a nominee to the Supreme Court? It was because his judicial philosophy was so out of tune with what the country expected of a Supreme Court judge in 1987 that the Senate deemed him unacceptable. We could not accept as a Supreme Court judge someone who at the time it mattered — when Congress was considering the legislation — opposed the Civil Rights Acts. We could not accept someone who once wrote passionately that the First Amendment protection of free speech did not extend to art and literature. As reported in 1987:

In 1963 and 1964, as a 36-year-old law professor, Mr. Bork wrote impassioned attacks on legislation to desegregate lunch counters and other public accommodations. He argued that the bill, by invading the liberty of proprietors to turn away blacks, was based on ”a principle of unsurpassed ugliness.” Not until 1973, when seeking Senate confirmation as Solicitor General, did he publicly renounce this view, stated with such unsurpassed surliness.

Even in his latest appearance he declined to revise his pinched view of civil rights. He has criticized some of the Supreme Court’s landmark civil rights decisions for reasons that vary from case to case. The bottom line, however, is almost always the same – unfavorable to minorities.

Free Speech. Repeatedly over the years, Judge Bork has taken a narrow view of the rights of expression. He declared that only the ”core” value of political speech was immune from government restraint. Not until 1984 did he allow as how art and literature might be protected, and then only because they sometimes relate to politics. His conversion, late, is also limited.

Even this limited liberty, in his view, remains utterly at the mercy of the majority when speech becomes advocacy of illegal action. The Court and the mainstream of public opinion have long tolerated strident dissent, reserving punishment for incitement to imminent lawless action. Judge Bork rejects this tradition. Senator Arlen Specter of Pennsylvania extracted from him a ”commitment” to apply settled law rather than his own view. But even such assurances failed to persuade the Judiciary Committee’s ablest questioner, who has decided to oppose the nomination.

So let’s get over this nonsense that Robert Bork was somehow wronged — Robert Bork was denied appointment to the Supreme Court because his judicial views were too far out of step with what the U.S. had come to expect from its Constitution in connection with protection against racial prejudice and restrictions on expression.

What does this have to do with Elena Kagan? Kagan believes that the Senate should explore a nominee’s views, that the confirmation hearings should not continue to be what they have been since the days of Robert Bork — silly, ritual dances that permit the likes of John Roberts to evade completely straight answers to questions that are of central importance to the operation of the Court. As Kagan has written:

The Bork hearings presented to the public a serious discussion of the meaning of the Constitution, the role of the Court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the Court in the proper direction. Subsequent hearings have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis. Such hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government. Neither can such hearings contribute toward an evaluation of the Court and a determination whether the nominee would make it a better or worse institution. A process so empty may seem ever so tidy–muted, polite, and restrained–but all that good order comes at great cost. And what is worse even than the hearings themselves is a necessary condition of them: the evident belief of many senators that serious substantive inquiry of nominees is usually not only inessential, but illegitimate–that their insistent questioning of Judge Bork was justified, if at all, by his overt “radicalism” and that a similar insistence with respect to other nominees, not so obviously “outside the mainstream,” would be improper. This belief is not so often or so clearly stated; but it underlies all that the Judiciary Committee now does with respect to Supreme Court nominations. It is one reason that senators accede to the evasive answers they now have received from five consecutive nominees. It is one reason that senators emphasize, even in posing questions, that they are asking the nominee only about philosophy and not at all about cases–in effect, inviting the nominee to spout legal theory, but to spurn any demonstration of what that theory might mean in practice. It is one reason that senators often act as if their inquiry were a presumption-as if they, mere politicians, have no right to ask a real lawyer (let alone a real judge) about what the law should look like and how it should work. What has happened is that the Senate . . . has let slip the fundamental lesson of the Bork hearings: the essential rightness–the legitimacy and the desirability–of exploring a Supreme Court nominee’s set of constitutional views and commitments.

Elena Kagan, Confirmation Messes, Old and New, 62 U. Chi. L. Rev. 619, 941-942 (footnotes omitted), reviewing Stephen L. Carter, The Confirmation Mess (1994).

So Kagan doesn’t have much of a paper trail. David Brooks therefore writes that she “is a person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess.” Consequently, he finds her “kind of disturbing.” It’s almost funny. Brooks wrote when John Roberts was nominated that

I love thee with the depth and breadth and height my soul can reach. I love thee freely, as men strive for right. I love thee because this is the way government is supposed to work. President Bush consulted widely, moved beyond the tokenism of identity politics and selected a nominee based on substance, brains, careful judgment and good character.

What inspired this poetic passion from Brooks? According to Brooks, Roberts “is principled and shares the conservative preference for judicial restraint.” And “[a]nybody who is brilliant during Supreme Court grillings, as Roberts is, will be impressive at confirmation hearings.” Finally, Roberts “has shown that character and substance matter most.”

So Kagan — who has put on the record her belief that Supreme Court nominees should address the issues that will come before the Court — is “disturbing,” but Roberts, who lied about being a conservative consensus builder with a deep respect for precedent has “substance, brains, careful judgment and good character.”

Yeah, right. Here’s my suggestion to all those who think Kagan’s a “blank slate” — why don’t you withhold judgment until the confirmation hearings. Let her answer questions, questions she’s on record stating she thinks are legitimate and should be answered. It’s more than we got from John Roberts.

Will the film, music, and publishing industries oppose Kagan’s nomination?

It will be interesting to see whether the film, music, and publishing industries generate or fund any opposition to Elena Kagan’s nomination to the Supreme Court. As the Hollywood Reporter states, the entertainment industry’s “worry about Kagan might be her philosophy on intellectual property matters. As dean of Harvard Law School from 2003 to 2009, she was instrumental in beefing up the school’s Berkman Center for Internet & Society by recruiting Lawrence Lessig and others who take a strongly liberal position on ‘fair use’ in copyright disputes.” Later, as Obama’s Solicitor General, she successfully argued against Supreme Court review of a 2d Circuit decision, opposed by the entertainment industry, that allowed Cablevision subscribers to store television programs they had recorded on the cable providers servers rather than on the subscribers’ own, in-home boxes. In the brief she filed in the Supreme Court opposing review, she emphasized the importance to the decision of fair use principles. The parties to the lawsuit had decided that fair use should not be considered in the case. Kagan therefore therefore argued that the case was not an appropriate vehicle for Supreme Court review of the issues raised by Cablevision’s actions:

When a subscriber engages in time shifting, recording the program and playing it back are two sides of the same coin. If fair-use principles would excuse a cable company from liability for unauthorized reproduction when an RS-DVR system copies and stores a program on a hard disk at a subscriber’s behest, the same principles might excuse the company from liability for unauthorized public performance when the system transmits the program to the subscriber for playback. Here too, the parties’ agreement to litigate the case without reference to fair-use principles has elevated to great importance a question that otherwise might have been insignificant. Brief for the U.S. in Cable News Network, Inc. v. C.S.C. Holdings at 14 (footnote omitted).

Stanford Law School recognizes law is a creative enterprise.

I think I should be proud. From the Stanford Law School Course Catalog:

Law and Creativity: Fiction and Nonfiction

Practicing law is very much a creative enterprise. Effective advocates and counselors provide innovative and thoughtful solutions to complex problems. But there often isn’t enough attention devoted in law school either to thinking creatively or to reflecting in a creative way on the issues students confront inside and outside the classroom. This course will respond to this gap by building a bridge between law and the arts, with the goal of helping students hone their ability to think creatively and use disciplined imagination.

Kent State 40 years ago, and making up facts to fit today’s world view.

Few things frustrate me in my teaching than my students ignorance of history that predates their adolescence.

Last week, on the 40th anniversary of the Kent State shootings, I wrote about both their impact on me then, and the frightening disconnect I see between current political rhetoric that compares President Obama’s policies to “fascism” and the very different reality of 40 years ago, when National Guard troops really did engage in activity that might genuinely be equated to fascism. I guess I shouldn’t have been surprised that I was attacked for thinking that calling President Obama a “fascist” seems silly to someone who remembers students being shot dead for protesting the invasion of Cambodia in 1970.

But I genuinely was surprised when in the comments to the post criticizing me another blogger stated that in discussing the Kent State shootings I “neglected” to mention that “the National Guard were shot at first” and that the host of the site in response to that comment wrote: ” Thank you very much for the historical accuracy you add to this issue. You are correct. Mr. Friedman has selective memory.”

The problem, of course, is that this purported “historical accuracy” is pure fantasy. There never has been any evidence that the students at Kent State were armed, much less that they shot at the National Guard. As the Cleveland Plain Dealer reports today, [t]wo trials and a presidential commission’s investigation could not determine what initiated the gunfire, although the presidential commission concluded that ‘the indiscriminate firing of rifles into a crowd of students and the deaths that followed were unnecessary, unwarranted and inexcusable.’” Why is this news now? Because the Plain Dealer reported the following 2 days ago:

The Ohio National Guardsmen who fired on students and antiwar protesters at Kent State University on May 4, 1970 were given an order to prepare to shoot, according to a new analysis of a 40-year-old audio tape of the event.

“Guard!” says a male voice on the recording, which two forensic audio experts enhanced and evaluated at the request of The Plain Dealer. Several seconds pass. Then, “All right, prepare to fire!”

“Get down!” someone shouts urgently, presumably in the crowd. Finally, “Guard! . . . ” followed two seconds later by a long, booming volley of gunshots. The entire spoken sequence lasts 17 seconds.

The previously undetected command could begin to explain the central mystery of the Kent State tragedy – why 28 Guardsmen pivoted in unison atop Blanket Hill, raised their rifles and pistols and fired 67 times, killing four students and wounding nine others in an act that galvanized sentiment against the Vietnam War.

People should know that before they begin spouting off about the policies of an American President they perhaps ought to know a little about history. And they certainly should know better than simply to make up facts that fit their world view.

ADDENDUM:

KENT STATE (trailer) from Mark Mori on Vimeo.

New force for the irreparable harm requirement in copyright preliminary injunction decisions? And might we see the Holden Caulfield sequel after all?

One week ago, the U.S. Court of Appeals for the 2d Circuit issued a very interesting ruling (inserted below)  in the case in which J.D. Salinger sued Frederik Colting, alleging that Colting’s work, 60 Years Later Coming Through the Rye, infringes Salinger’s copyright in Catcher in the Rye. First, and perhaps most importantly, the 2d Circuit stated that “we conclude that the District Court properly determined that Salinger has a likelihood of success on the merits.” In other words, the 2d Circuit concluded that based on the evidence already presented to the trial court, it is likely Salinger (who, since his death, has been replaced as the plaintiff by Coleen Salinger and Matthew Salinger as trustees of the Salinger Literary Trust) it has concluded that 60 Years Later is likely an infringement of Catcher in the Rye.

Nevertheless, the 2d Circuit vacated the trial court’s preliminary injunction forbidding U.S. publication of 60 Years Later and instructed the trial court to reconsider whether a preliminary injunction should issue because, according to the 2d Circuit, the trial court did not apply the appropriate standard in determining whether a preliminary injunction should have been issued. Most importantly, the trial court had not considered whether, assuming it prevails in the end in the case, the Salinger Trust would suffer harm that it could not be compensated for at final judgment in the absence of the preliminary injunction.

It is important to note that a preliminary injunction is an order that someone should do or not do something that is in effect only until the final verdict is rendered in a case. A preliminary injunction is intended to preserve the status quo during trial of a case in situations in which the failure of the court to ensure the preservation of the status quo would somehow damage the party seeking the injunction in a way that would prevent him from being made whole by a final judgment.

Thus, the trial court in the Salinger case only determined that Salinger’s infringement claim had a likelihood of success on the merits. That means that the court leaves open the possibility that after the parties have had a chance to fully develop their evidence and the court has had the opportunity to see witnesses testify live (rather than just via the written affidavits the court earlier considered), it might change its mind on whether Salinger in fact has successfully established an infringement.

More importantly, perhaps, the 2d Circuit made clear that the trial court also needs to consider factors other than the likelihood of the success of the infringement claim. The 2d Circuit stated that the trial court must reconsider whether to grant the preliminary injunction under the standard the U.S. Supreme Court applied in determining the legitimacy of a permanent injunction (that is, an injunction issued at the end of a case as a final judgment) a patent infringement action in eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006). That standard (the typical standard applied in most injunction cases) requires the court to consider four factors: “(1) that [the party seeking the injunction] has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.”

No single factor is dispositive, nor are the factors given equal weight and considered together in any easy formulaic way. All the factors are considered in a holistic evaluation. Interestingly, however, the right to non-monetary, injunctive relief typically requires that the availability of monetary relief be inadequate to make the party seeking the injunction whole. It may be possible for Colting to argue on remand that even should, his work be found to infringe the Salinger Trust’s copyright in Catcher in the Rye, should he be able to publish 60 Years On during the pendency of the case, the Salinger Trust can be made whole by recovering whatever profits have in the meantime been made on the book. The Salinger Trust, in the meantime, is likely to argue the mere publication of the book in the U.S. will harm the Trust in a way that cannot be remedied by money because the mere presence of the book will detract from the value of the Trust’s copyright in the character of Holden Caulfield.

William Patry, in his treatise on copyright, has noted that courts in copyright cases have in the past rarely given real consideration to the “irreparable harm” argument in issuing preliminary injunctions “The gutting is accomplished definitionally: rather than reject the requirement outright, courts define the adequacy of legal remedies in such a way that those remedies can never be considered a substitute for plaintiff’s alleged losses.” William F. Patry, Patry on Copyright, §22:12, citing Douglas Laycock, The Death of the Irreparable Injury Rule, 103 Harv. L. Rev. 687, 692 (1990). Thus, Patry writes, “Preliminary injunctions are issued far more often than they should be, at least from a review of available decisions.”

It makes me wonder whether the 2d Circuit is taking a stand here and insisting that the trial court give real consideration to the requirement that the Salinger Trust could not be made whole, even if it eventually prevails on its infringement claim, in the absence of a preliminary injunction. If so, we may yet see 60 Years On published in the U.S., even if for only a brief time.

Salinger v Colting 2d Circuit Appeal of Prelim Injunction Decision

The Great Lakes Union: a great idea that just keeps getting better

One year ago I made the following proposal: “The states and provinces bordering the Great Lakes should secede from the U.S. and Canada, form their own country (the Great Lakes Union), and exert exclusive control over the water in the Great Lakes. In other words, we’d “go OPEC” with respect to water.”

Steven Solomon, in Freshwater Scarcity: The Greatest Crisis Most Americans Have Never Heard Of, lends my idea some credibility. Solomon writes:

“Today, for the first time in human history, the global well is starting to go dry — and we are all about to learn the painful lessons of what happens when societies run short of history’s most indispensable resource.

“Freshwater is overtaking oil as human society’s scarcest critical resource. And just as oil transformed the history of the 20th century, freshwater scarcity is starting to re-define the geopolitics, economics, environment, national security, and daily living conditions of the 21st century.

“What is happening, essentially, is that under the duress of the voracious demand of our global industrial society that uses water at twice the rate of our rapid population growth, there is simply not enough available, sustainable supplies of freshwater in more and more parts of the world on current trajectories and practices, to meet the needs for food, energy, goods and accessible safe drinking water for our 6.7 billion, much less the 9 billion we’re becoming by 2050. Due to the uneven distribution of population pressures and water availability, global society is polarizing into water “Haves” and “Have-Nots.”

40 years ago (4 dead in Ohio) and today.

40 years ago today (May 4) I was 10 years old, sitting at home, when I heard about something I thought unthinkable that had just happened about 40 miles away from my home. National guard troops had fired on unarmed students at Kent State protesting the Vietnam War, killing 4 and wounding another 9. Nine days later at Jackson State, police killed students and wounded another 12 who were protesting the war and the killings at Kent State.

It was inconceivable to me that unarmed students exercising their First Amendment rights had been shot to death in the United States,  but my childhood was filled with nightmares of that sort. In 1967 I remember driving through parts of Cleveland that were under military occupation as a result of just one U.S. city among hundreds that had had exploded that year and the previous one. And, of course, in 1968, Martin Luther King and Robert Kennedy were assassinated in little more than 2 months, disappearing the 2 most prominent voices calling for the U.S. to pull its troops out of Vietnam.

And, of course, we were all at the time convinced of the inevitability of nuclear holocaust.

So I laugh when I hear earnest students of mine who insist that terrorism is the greatest threat this country has ever faced. And when conservatives express the fear that President Obama threatens us with fascism. We should not be fighting wars we can’t win in support of corrupt regimes. And we have huge problems at home:

In 2005, 21.2 percent of U.S. national income accrued to just 1 percent of earners. Contrast 1968, when the CEO of General Motors took home, in pay and benefits, about sixty-six times the amount paid to a typical GM worker. Today the CEO of Wal-Mart earns nine hundred times the wages of his average employee. Indeed, the wealth of the Wal-Mart founder’s family in 2005 was estimated at about the same ($90 billion) as that of the bottom 40 percent of the U.S. population: 120 million people.

But I remember vividly how sad I was on May 4, 1970.