Okay, no more Times New Roman. But then what?

It’s a week, I guess, to think about typefaces. I’m convinced now by Kendall Gray that I should no longer require my students to hand in their documents using Times New Roman as their font. In legal writing, the default move is typically the conventional move — I don’t want to offend my readers, and if the vast majority of people do something a certain way, I can be relatively confident that doing it that way won’t offend my readers.

But if there’s a better way of doing something that won’t offend my readers I’ll always opt for the better way of doing things. And, as Gray points out, as esteemed a judge as Judge Frank Easterbrook has stated that “[d]esktop publishing does not imply a license to use ugly or inappropriate type and formatting—and I assure you that Times New Roman is utterly inappropriate for long documents . . . . It is designed for narrow columns in newspapers, not for briefs.”

But I wish Gray hadn’t left me hanging, wondering what font I should choose. The flow chart I referred to the other day doesn’t give me an alternative for legal documents, and the nearest analog (a book), leads me to fonts that aren’t available in Word. I do know from Ruth Anne Robbins’ article, Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents, Journal of the Association of Legal Writing Directors, Vol. 2, p. 108, 2004 , that because at least some designers believe that serif fonts are easier to read when dealing with large amounts of text, it makes sense for attorneys to choose serif fonts for the body of their documents.” Id. at 127 (hyperlink added). Sans serif fonts, on the other hand, are “easier to read on computers, overheads, and the like.” Id. But Robbins concludes, for the text of legal documents, you should, “[g]iven the choice, use a proportionally spaced font such as Times New Roman or Garamond.” Id at 133.

So I’m back, waiting on the resolution to Gray’s cliffhanger. Any suggestions out there? Again, note that I want something that works. I am convinced that, as Robbins puts it, “[v]isual effects . . . are as critical an element of persuasion as proper grammar and adherence to the rules of court and citation form.” Id. at 111. But at the same time I’m operating in a field in which, Easterbrook notwithstanding, Times New Roman is the conventional font, and I don’t want my documents to stand out because of the font I use.

Theft, a History of Music

Who owns Franz Kafka’s papers?

I’ve written before about my skepticism over allowing the dead to exert control over the living to a sufficient degree that we the living are deprived of cultural riches. And just last week I discussed this point with a student in connection with copyright. She expressed disappointment in Douglas Adams’ posthumously published work and wondered whether it wouldn’t have been better for him if nothing he hadn’t authorized for publication had been published. I explained that I don’t think it affects Douglas Adams, a dead man, one bit whether or not stuff he didn’t want published is published but that it might affect us a great deal. Not being the greatest fan of Adams, I brought up Franz Kafka, who legendarily told his friend Max Brod to burn his papers upon his death. Brod, of course, ignored the request. It seems to me it would’ve been an undeniable tragedy if instead Brod had obeyed his friends wishes.

My real point — and the point that drives a lot of what I write on this blog — is that we confuse things and act to our cultural detriment when we treat intellectual “property” like we treat real property. And that confusion of course extends to the ways we give dead people continued influence over their intellectual and artistic creations. So it seems serendipitous that in this coming Sunday’s New York Times Magazine Elif Bautman has an article about the ongoing legal battle in the Israeli courts over the fate of Franz Kafka’s personal papers.

Bautman asks precisely what I would:

The situation has repeatedly been called Kafkaesque, reflecting, perhaps, the strangeness of the idea that Kafka can be anyone’s private property. Isn’t that what Brod demonstrated, when he disregarded Kafka’s last testament: that Kafka’s works weren’t even Kafka’s private property but, rather, belonged to humanity?

But Eva Hoffe and Ruth Wiesler, the daughters of Max Brod’s secretary and presumed lover, are claiming that Kafka’s paper are their property and that they should be permitted to sell them. They are being opposed by the National Library of Israel, which is claiming a right to the papers under Brod’s will. Brod brought the papers along with him when he emigrated to Palestine after Kafka’s death.

It’s an interesting legal case — there are Brod’s inconsistencies, including words that indicate he meant to convey the papers to public authorities in Israel and actions that might seem to indicate otherwise; the eccentric daughters of Brod’s secretary/lover, the more important of whom in this battle seems to fit the caricature of a batty old cat lady; and, of course, the overarching presence of Kafka himself, over whose legacy this kind of legal battle seems, in retrospect, well . . . almost inevitable.

As one Israeli writer interviewed in the story explains:

If Brod could see what was happening now, . . . he would be horrified.” Kafka, on the other hand, might be O.K. with it: “The next best thing to having your stuff burned, if you’re ambivalent, is giving it to some guy who gives it to some lady who gives it to her daughters who keep it in an apartment full of cats, right?”

Lawyers need typefaces too.

I’ve said it before: lawyers must pay attention to everything, including typography:

using good typography is like dressing well for court, a way “we signal to clients, other attorneys, and judges that we take our work seriously and we take court seriously.” Moreover, bad typography detracts from your goal of persuading your audience your client is right. “When you show up to make an oral argument, you make sure that you present yourself as professionally and persuasively as possible. Similarly, your written documents should reflect the same level of attention to typography.”

And it’s not just typography in court documents we must worry about. There’s typography in presentations, on web sites, and in e-mail. Typography is everywhere. What do we do when we can’t afford a designer? How do we evaluate the designers we do encounter? From Inspiration Lab comes reference to Julian Hansen, who’s designed a poster depicting “a flowchart of the choices we go through choosing fonts, with a humorous approach.”

Wind of Change? It seems we’re becalmed.

In May of 2009 I asked whether there would be a wind farm on Lake Erie off of Cleveland soon. But it seems we’re stuck between environmental roadblocks on one side and free-market enthusiasts who oppose any governmental subsidies on the other. So far, all we have is repeated “news” that a Lake Erie wind farm “is in the works.” And, inevitably, opposition to Lake Erie wind farms has arisen. So it shouldn’t be a huge surprise that Salon reports today:

You could not ask for a more drastic demonstration of the contrast between how the United States and China are rolling out renewable energy technologies than the current state of offshore windmill deployment in the two countries.

The U.S. does not have a single offshore windmill currently in operation.

China, of course, is “charging ahead.” And while the Chinese don’t bother with things like environmental and economic regulations that otherwise would limit what they are doing, Salon emphasizes that the important point to notice is that “[s]lowly but surely, the West is losing its long-held domination of the technological high ground.” In short, “[w]hen research and development migrates from one country to another, so does innovation.” I can’t help but second Salon’s conclusion:

The strategic imperative is simply overwhelming. The struggle over energy policy shouldn’t be seen as a culture war between environmentalists and free-market fundamentalists. It should be a matter of basic common sense — do we want to be involved with making the future, or just buy it from China?

A Funk/Klezmer Song for Rosh Hashanah: Happy New Year!

Abraham Inc. Moskowitz and Loops of It – Live in studio
Uploaded by hydearck. – Music videos, artist interviews, concerts and more.

Whatever works, works. If it’s not hot news, it’s copyrighted opinion.

Whatever works, works. It’s a message I always try to pound into my students. No matter how brilliant you think one argument is, the judge’s mind might be captured by another. Which makes the editing out of an argument so weak it detracts from the strongest arguments so tricky. I remember one time winning a case on an argument my colleagues and I had concluded was too silly to bother making. But in that situation at least we knew one of our client’s co-parties in the case had made it so we knew the judge would see it. Sure enough, it was the argument that one us the case. The client was happy. And so were we.

As the Copyright Litigation Blog reports, just such a thing happened in Agora Financial, LLC v. Samler (D. Md. June 17, 2010) (pdf). The plaintiff, a financial newsletter, sued a website that had had lifted and republished the plaintiff’s investment recommendations. The plaintiff sued, claiming that the defendants actions were “Hot news misappropriation” and violated Section 43(a) of the Lanham Act.

“Hot news” is a relatively recent coinage that, in the words of Thomas Shevory, “refers to written material, often ‘facts,’ that have value for a short duration, and which will soon move into the ‘public realm’ losing their value completely.” Thus, news organizations have argued that “hot news” is entitled to protection. One problem with the argument is that facts alone cannot be copyrighted. As Shevory writes, “[g]iven the short time-frames at stake, questions of how to determine value, and underlying doubts about whether it should be protected at all, analysis of hot news can quickly become an extremely complicated undertaking.”

So what did the court in Agora Financial do? It ruled for the plaintiff-financial newsletter and held that the defendants’ appropriation was unlawful, but it avoided the difficult question altogether. It held instead that the appropriated material constituted “opinion” — not “fact” — and thus are entitled to copyright protection. The appropriation, therefore, constituted copyright infringement.

Not only does the case illustrate that you can win — and welcome the win — on different grounds than you argue, but that courts tend to find whatever way they can to avoid controversial reasons to find the way they want to find.

Is Damien Hirst a “plagiarist”? And what does that even mean?

The Guardian reports that Damien Hirst has been accused of plagiarism. More specifically:

Charles Thomson, the artist and co-founder of the Stuckists, a group campaigning for traditional artistry, collated the number of plagiarism claims relating to Hirst’s work for the latest issue of the Jackdaw art magazine.

He came up with 15 examples, with eight said to be new instances of plagiarism. The tally includes the medicine cabinets that Hirst first displayed in 1989, and its development in 1992 – a room-size installation called Pharmacy.

“Joseph Cornell displayed a cabinet with bottles on shelves called Pharmacy in 1943,” said Thomson. Nor were Hirst’s spin paintings or his installation of a ball on a jet of air original, he said, noting that both were done in the 1960s.

“Hirst puts himself forward as a great artist, but a lot of his work exists only because other artists have come up with original ideas which he has stolen,” said Thomson. “Hirst is a plagiarist in a way that would be totally unacceptable in science or literature.” (hyperlinks added.)

Here we go again. First of all, plagiarism is a loaded word that means nothing in the way that Thomson uses it except that he thinks that Hirst is a bad artist. There is no legal claim for plagiarism. There is for copyright infringement, though I can’t imagine that whoever owns the copyright to Cornell’s work would prevail on a claim against Hirst for infringement of the copyright in Pharmacy. You can’t copyright an idea.

Having not seen the works that Hirst supposedly “plagiarized,” I can’t say with any degree of confidence whether the other examples brought up in the Guardian article constitute infringment:

Aggrieved artists include John LeKay, a Briton who says he first thought of nailing a lamb’s carcass to wood like a cross in 1987, only to see it reproduced by Hirst. Lekay previously claimed in 2007 that he had been producing jewel-encrusted skulls since 1993, before Hirst did so. Lori Precious, an American, says she first arranged butterfly wings into patterns to suggest stained-glass windows in 1994, years before Hirst.

It is interesting, I think, that neither LeKay nor Precious intends to sue.“LeKay has become more interested in Buddhism than material wealth, so he does not plan to seek compensation.” (One could wish the owners of the copyrights in John Cage’s work were more attuned to the implications of Buddhism for a claim grounded in appropriation.) Precious is “[w]ithout the funds to pursue legal action.” She does note that, although the patterns in her work and Hirst’s are not identical,”[i]t’s the same material (butterfly wings) and the same idea (recreations of stained-glass windows).”

Perhaps Jackdaw ought to be more attuned to the importance of consistency. Laura Gascoigne, in a Jackdaw column entitled “Whose Art is it Anyway?“, argues that in contemporary art copying by fellow artists is a non-issue grounded in outdated notions of what originality is:

The insistence on the uniqueness of an artist’s imagery is a pathetic fallacy of the Romantic era which, like DACs, has only ever enriched already rich artists. Work by unknown artists has no rarity value. But the fallacy does, it’s true, provide artistic nobodies with the chance to rake back a quid or two from the big names.

In contemporary art, copying by fellow artists is a non-issue – the real issue is corporate theft of artistic capital. Gillian Wearing was quite right to complain that the use of her signs idea in ads for Volkswagen and Levi Jeans ìstops me doing my work because people think I’m working for an advertising agencyî, as was Andy Goldsworthy to prosecute Habitat for stealing his snowball idea to advertise chairs. Conceptual art is particularly vulnerable to this sort of abuse, as ideas in themselves cannot be copyrighted. Of course there’s an argument for saying that once an idea or an image is out in the world it belongs to everyone; but what belongs to everyone should then be protected from commercial hijack. The corruption of artistic meaning by advertisers is as repugnant as the appropriation of common language by corporations. Who gave Starbucks the right to trademark the phrase ‘Shared Planet’?

What is clear is that Jackdaw’s aim is to slag Hirst. In fact, that appears to be a central aim of the magazine, which on its homepage quotes Celia Walden from the Daily Telegraph:

[Jackdaw] is cultural samizdat, packed with earthy jokes and scandals that are ignored elsewhere in the interests of keeping folk such as the Margate Express (Tracey Emin) or Dick Flasher (Damien Hirst) sweet.

Arbitration often isn’t fast and cheap.

I’ve written before that the instinctive preference many express for arbitration over litigation in court is not always good for the client. But now it seems, according to Law.com, that litigators are beginning to question the very basis of that instinctive preference — that arbitration is faster and cheaper:

Large-scale commercial contracts often include arbitration clauses in the hopes of avoiding large-scale commercial litigation. But litigators are starting to find the quicker, cheaper, more private aspects of arbitration have turned into lengthy, expensive and often public quasi-trials.

This has a growing number of attorneys advising clients to either take their chances in court or tailor very specific arbitration clauses with the hopes of limiting the expense of arbitration. It’s a slow-moving process, however, as litigators are rarely consulted when corporate attorneys are drafting contracts.

In the old days, Cozen O’Connor litigator Philip G. Kircher said, arbitration used to mean a six-month process “from cradle to grave.” There was very little discovery, fewer depositions and less case management. The parties would go before one or three arbitrators and have a short, informal hearing with the rules of evidence more relaxed than in court.

As arbitration became more popular because of the expense of litigation, corporations’ growing distrust of juries and the length of time it took a case to get to trial, the arbitrators became all the more sophisticated. That resulted in the parties asking more of those arbitrators in terms of complex discovery, more depositions and pretrial conferences, he said.

“Slowly but surely, what was once supposed to be fast and cheap was becoming probably just as expensive, if not more so, than going to court,” Kircher said.

Kircher had two arbitrations recently that have gone through weeks of trial, hundreds if not thousands of exhibits, dozens of witnesses and lots of briefing. The panel then sits with the cases for months to review all of that material.

“Even when there’s a final award, more often than not the losing party tries to find a way to appeal it anyway, so [it gets] hung up for another year before the award is rendered to judgment,” Kircher said.

He is part of a growing segment of attorneys who would rather have the security of an appeal and the finality of a court decision by taking their cases to court. Kircher is advising his clients to create clauses in their contracts that agree to have a nonjury trial in the event of a dispute or at least agree on a certain jurisdiction, preferably in federal court.

[Hat tip to Philip Loree.]

Happy Labor Day! President Eisenhower on Unions.

President Dwight D. Eisenhower to the AFL-CIO, December 5, 1955:

You of organized labor and those who have gone before you in the union movement have helped make a unique contribution to the general welfare of the Republic–the development of the American philosophy of labor. This philosophy, if adopted globally, could bring about a world, prosperous, at peace, sharing the fruits of the earth with justice to all men. It would raise to freedom and prosperity hundreds of millions of men and women–and their children–who toil in slavery behind the Curtain.

One principle of this philosophy is: the ultimate values of mankind are spiritual; these values include liberty, human dignity, opportunity and equal rights and justice.

Workers want recognition as human beings and as individuals-before everything else. They want a job that gives them a feeling of satisfaction and self-expression. Good wages, respectable working conditions, reasonable hours, protection of status and security; these constitute the necessary foundations on which you build to reach your higher aims.

Moreover, we cannot be satisfied with welfare in the aggregate; if any group or section of citizens is denied its fair place in the common prosperity, all others among us are thereby endangered.

The second principle of this American labor philosophy is this: the economic interest of employer and employee is a mutual prosperity.

Their economic future is inseparable. Together they must advance in mutual respect, in mutual understanding, toward mutual prosperity. Of course, there will be contest over the sharing of the benefits of production; and so we have the right to strike and to argue all night, when necessary, in collective bargaining sessions. But in a deeper sense, this surface struggle is subordinate to the overwhelming common interest in greater production and a better life for all to share.

The American worker strives for betterment not by destroying his employer and his employer’s business, but by understanding his employer’s problems of competition, prices, markets. And the American employer can never forget that, since mass production assumes a mass market, good wages and progressive employment practices for his employee are good business.

The Class Struggle Doctrine of Marx was the invention of a lonely refugee scribbling in a dark recess of the British Museum. He abhorred and detested the middle class. He did not foresee that, in America, labor, respected and prosperous, would constitute–with the farmer and businessman–his hated middle class. But our second principle–that mutual interest of employer and employee–is the natural outgrowth of teamwork for progress, characteristic of the American economy where the barriers of class do not exist.

The third principle is this: labor relations will be managed best when worked out in honest negotiation between employers and unions, without Government’s unwarranted interference.

This principle requires maturity in the private handling of labor matters within a framework of law, for the protection of the public interest and the rights of both labor and management. The splendid record of labor peace and unparalleled prosperity during the last 3 years demonstrates our industrial maturity.

Some of the most difficult and unprecedented negotiations in the history of collective bargaining took place during this period, against the backdrop of non-interference by Government except only to protect the public interest, in the rare cases of genuine national emergency. This third principle, relying as it does on collective bargaining, assumes that labor organizations and management will both observe the highest standards of integrity, responsibility, and concern for the national welfare.

You are more than union members bound together by a common goal of better wages, better working conditions, and protection of your security. You are American citizens.

The roads you travel, the schools your children attend, the taxes you pay, the standards of integrity in Government, the conduct of the public business is your business as Americans. And while all of you, as to the public business, have a common goal–a stronger and better America–your views as to the best means of reaching that goal vary widely, just as they do in any other group of American citizens.

So in your new national organization, as well as in your many constituent organizations, you have a great opportunity of making your meetings the world’s most effective exhibit of democratic processes. In those meetings the rights of minorities holding differing social, economic, and political views must be scrupulously protected and their views accurately reflected. In this way, as American citizens you will help the Republic correct the faulty, fortify the good, build stoutly for the future, and reinforce the most cherished freedoms of each individual citizen.

This country has long understood that by helping other peoples to a better understanding and practice of representative government, we strengthen both them and ourselves. The same truth applies to the economic field. We strengthen other peoples and ourselves when we help them to understand the workings of a free economy, to improve their own standards of living, and to join with us in world trade that serves to unite us all.

In the world struggle, some of the finest weapons for all Americans are these simple tenets of free labor. They are again: mart is created in the Divine image and has spiritual aspirations that transcend the material; second, the real interests of employers and employees are mutual; third, unions and employers can and should work out their own destinies. As we preach and practice that message without cease, we will wage a triumphant crusade for prosperity, freedom, and peace among men.

To close, it is fitting that we let our hearts be filled with the earnest prayer that, with the help of a kind Providence, the world may be led out of bitterness and materialism and force into a new era of harmony and spiritual growth and self-realization for all men. Thank you very much.

Judges: you never really understand a person until you consider things from his point of view.

Dahlia Lithwick writes of her legal hero, Atticus Finch, and the noxious myth that empathy has nothing to do with being an effective judge:

Atticus’s life instruction to his daughter, Scout. As he explains, “If you can learn a simple trick, Scout, you’ll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view, until you climb inside of his skin and walk around in it.” In summer 2009, and again this July, the United States was roiled by debate about Barack Obama’s promise to appoint a supreme court justice who embodies this quality of “empathy”. Scores of critics asserted that judicial empathy is the same as judicial bias; that judges are at their best when they coldly and mechanically apply the law. There is no place for climbing inside anyone else’s skin as a judge. There is only truth and cold fact.

How strange it is, that we have come to a place in the national debate about justice when Atticus Finch’s mild admonition to his daughter to try to walk a mile in someone else’s shoes has become the definition of dangerous judicial activism. While Atticus still has much to teach lawyers about race and violence and prejudice and the rule of law, I have also come to think of him as the patron saint of patient, quiet listening; a quality to which all of us ought to aspire.