Chief Justice Roberts has no respect for precedent that doesn’t suit his purposes.

One of the less noticed parts of last week’s Citizens United decision by the Supreme Court overturning precedent that had supported over 100 years of congressional restrictions on corporate campaign contributions was precisely the question of the strength of precedent. During his confirmation hearings, prospective Chief Justice Roberts was questioned intensely on the question of his respect for precedent, particularly with respect to Roe v. Wade. In keeping with the image he plainly intended to project of a true conservative, a non-activist who respects existing institutions, Roberts emphasized his respect for precedent.

Thus, it should not be particularly surprising that Roberts wrote a separate concurring opinion in Citizen’s United to supplement his support of Justice Kennedy’s majority opinion. Roberts’ concurrence focused on the need to follow Court precedent — or, rather, the need to depart from precedent in this particular case.

Roberts’ concurrence should leave people convinced he would overturn Roe v. Wade and that his persona as a non-activist “umpire” who merely calls balls and strikes is a fraud. First, Roberts wrote, upholding precedent “is not an end in itself. It is instead ‘the means by which we ensure that the law will not merelychange erratically, but will develop in a principled and intelligible fashion.’”

So why would Roberts depart from precedent? First, if he thinks it’s wrong: “[I]f the precedent under consideration itself departed from the Court’s jurisprudence, returning to the ‘ “intrinsically sounder” doctrine established in priorcases’ may ‘better serv[e] the values of stare decisis than would following [the] more recently decided case inconsistent with the decisions that came before it.’”

Merely overturning precedent because a judge thinks it’s wrong, of course, does away entirely with what court’s call “stare decisis,” the rule that compels them to follow precedent (except when they don’t). If all that mattered was a judge’s determination of what is right, then there would be no need for stare decisis — a judge will always uphold precedent he or she believes is right.

So Roberts has to come up with something better. What does he come up with? To me it’s plain: precedent ought to be overturned if its justification is difficult, if using it to decide future cases is difficult, and if its original justification is open to question:

[I]f adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence inrelated areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new anddifferent justifications to shore up the original mistake.

Justice Blackmun’s opinion in Roe v. Wade has been under attack by both supporters of the right to choose whether or not to carry a pregnancy to term and those who oppose the right to choose since the day it was issued in 1973. And in fact, our courts should and do uphold precedent if there is any legitimate justification to uphold — that’s a central truth about legal interpretation (and one law students have a very difficult time gaining an understanding of). But Justice Roberts and his allies on the Court now have authority to cite as support for overturning Roe v. Wade because its original justification may not gain widespread support — this opinion of in Citizen’s United.

Finally, Roe v. Wade fits that other justification Roberts advances for overturning precedent —  it is “hotly contested,” and no doubt he and his allies would argue it therefore “cannot reliably function as a basis for decision in future cases.”

One thing I do know — Roberts has no respect for precedent that doesn’t suit his purposes.

Legal education is monumentally difficult. Legal “rules” are not “rules” in the sense most people understand them; they are, instead, formulations intended to reach just results based on the evidence in individual lawsuits.

In making the point set forth in the title of my post, it is worth repeating the message I sent this morning to my Contracts students, who are in the midst of studying for the first semester exams. My students are in the midst of making the transition from the lay understanding of legal “rules” as “rules” of the sort that govern the outcome of scientific experiments to the professional understanding that legal “rules” are professional terms of art used to articulate arguments intended to achieve justice in individual cases. It is not an easy transition to make, and it is a transition from a way of perceiving rules that seems to dominate the thinking of the vast majority of mankind to a way of perceiving rules as man-made constructs intended most of all to do justice to individuals.

As I wrote to my students, focusing on legal issues relating to the interpretation of disputed contract terms (the last subject of our semester’s study):

In trying to understand the law we are applying, consider the teachings of the teachings of the Chuang-tzu, a collection of writings from the fourth, third and second centuries B.C.:

Great understanding is broad and unhurried; Little understanding is cramped and busy.

Trying to understand the rules that pertain to contract interpretation will not come through a cramped and busy effort to memorize the “parol evidence rule” and the rules regarding when evidence outside of a writing is permitted to interpret the writing.

Instead, understanding contract interpretation will come first from from a broad and unhurried consideration of what language the parties are disputing the interpretation of. Then you must understand why each party considers his interpretation the correct one. What evidence does each party have that his interpretation is correct? How persuasive do you consider that evidence?

If one side’s interpretation is more persuasive, that will likely be the correct one. One must first consider the writing setting forth the purported agreement, the purposes of the purported agreement, the situations of the parties, and any other evidence that may bear on the meaning of the written agreement. Only after considering all these matters (which can range far and wide) and coming to some individual, human understanding of whether one person’s interpretation or the other’s is more persuasive can on go back to the rules to and use those rules to show how the rules and the evidence together will lead to that more persuasive result.

Thus, for example, in Thompson v. Lilly, 26 N.W. 1 (Minn. (1885), the buyer of logs insisted the seller did not supply logs of as high a quality as the parties had agreed the seller would provide. The parties had written the following brief agreement:

AGREEMENT.

Hastings, Minn., June 1, 1883.

I have this day sold to R. C. Libby, of Hastings, Minn., all my logs marked ‘‘H. C. A.,’’ cut in the winters of 1882 and 1883, for ten dollars a thousand feet, boom scale at Minneapolis, Minnesota. Payments cash as fast as scale bills are produced.

[Signed] J. H. Thompson,

Per D. S. Mooers.

R. C. Libby.

The Minnesota Supreme Court concluded that “[t]he written agreement . . . , as it appears on its face, . . . purports to be a complete expression of the whole agreement of the parties as to the sale and purchase of these logs, solemnly executed by both parties.” Thus, the court concluded that the buyer could not prevail on his claim that he and the seller had in fact agreed that the logs he had purchased were supposed to be of a higher quality than those logs the seller actually supplied.

But there really is nothing in the written agreement itself to preclude the reasonable possibility that the parties had also agreed that the logs marked “H.C.A” would be of the higher quality the buyer had not received. What is it about that 3 line agreement that suggests that it is the exhaustive statement of all the terms the parties agreed to?

Admittedly, there are a few things you might point to to support the court’s conclusion: the writing states price, it states the identifying marks on the buyer’s logs, and it states the delivery place and times. We might infer that if it includes all of those things it must include everything the parties had agreed upon.

But are we to suppose that in 1883 Minnesota in a sale between a logging company and a lumber buyer the technical requirements of the parol evidence rule were foremost in the buyer’s and seller’s minds? And are we to suppose the 3 line agreement was intended as the height of formality. And when, for example, would “winter” begin in Minesota — November, December 21, at first frost? To suppose the seller of logs and the buyer of logs would have put into the writing something they considered important is to be naive about how commercial transactions really take place (even today in the vast majority of commercial transactions, and even among investment bankers in the high flying world of Wall Street finance in which I once practiced).

In other words, if you merely start with the proposition that the parol evidence rule excludes the consideration of evidence regarding the content of a contractual agreement that is not contained in a final and complete written record of the agreement, you hardly have a convincing argument that the decision in Thompson v. Lilly must have been correct.

But if you look at the evidence recounted in the opinion (and the absence of certain evidence) the wisdom of the result (if not the clarity of the reasoning) becomes much, much more apparent — the buyer is claiming the agreement included a promise that the logs the seller was providing would be of a higher quality than the logs that were delivered. And while the writing in and of itself doesn’t inherently exclude that possibility in any conclusive way I can fathom, what evidence does the buyer have that the agreement included a promise of higher quality logs? Only the buyer’s own self-serving testimony. There is no corroborating testimony from, say,  others in the logging trade in 1883 Minnesota that an agreement on quality like that insisted upon the buyer would be expected. There is no documentary evidence outside of the 3 line agreement regarding the parties’ negotiations. There is no evidence that the buyer’s purposes for buying the logs should have indicated to the seller that higher quality logs were what the buyer expected. There is no indication the price the buyer agreed to pay reflects a market price for logs of a higher quality than that which he received.

In short, apart from the buyer’s self-serving testimony, there is no evidence of any sort that any agreement on the quality of the logs had been reached. In the absence of any evidence other than the buyer’s self-serving testimony in support of his position, the court conclusion that the three-line agreement contains all the material terms of the agreement does in fact seem convincing. If, on the other hand, others in the trade suggested the quality of the logs would not have been included in the written agreement or that the price in the agreement reflected a price for higher quality logs, the court would have had a much more difficult time suggesting the three line agreement contained all the material terms of the agreement.

Thus, the parol evidence rule does its job in this case — it prevents the dispute from ending up as a trial in which the buyer’s uncorroborated and self-serving sworn statements will be weighed by a jury against the writing and the seller’s sworn statements. But if we merely considered the 3 line agreement without considering what other evidence the buyer had (or did not have) in support of his position, the parol evidence rule in and of itself would have provided a very poor guide to determining whether there would be any justifiable basis for a trial on the buyer’s claims.

To engage in the extra effort of trial in Thompson v. Lilly would have been unreasonable as a matter of the administration of justice in that there seems no persuasive reason in the first place to believe the buyer. Trials are expensive and burdensome affairs. And keeping the case from trial prevents a jury from being persuaded by improper factors (such as preferring the buyer as a person to the seller). Thus, the court invoked the technical rule — the parol evidence rule — to produce an outcome that seems fair, just, and in accord with a common sense view of the evidence.

In other words, the legal rules and their proper application arise from the evidence the parties bring to bear. The rules do not predetermine disputes that are predictable before they arise. Instead, they provide the legal language (developed over the centuries’ long development of the common law) in which to couch the just conclusions compelled by the evidence.

So, as I explained to my students, when you are trying to figure out on an exam how to answer a question, consider first: what question you are you trying to answer. Then consider what evidence you have from each side of the dispute that helps persuade one way or another in answering that question. Then weigh that evidence and consider what we are primarily trying to determine in contract law: what the parties intended to agree to.

Then, and only then, use the rules to structure the presentation of your understanding of the proper resolution to the dispute. You are likely being asked to present your personal and human understanding as an intelligent adult being asked to solve a previously unsolved problem for the first time in your life. You are not merely being asked to repeat material your professor asked you to learn but to apply that learning to resolve new problems in a creative and original way no one other than you can be relied on to answer — that’s what you’re going to be doing as a lawyer!

I do not mean to minimize the importance of knowing the rules. You must know the rules. The rules are the language the law uses to structure the presentation of your persuasive explanations. Merely to give a recitation of your personal reaction to the evidence without reference to the rules is not to act as a lawyer. But the rules will only make sense to you if you use them to come to a result that makes sense to you as a human being.

You also have to keep in mind that rules in contract law sometimes serve purposes other than merely giving effect to what the parties intended. Rules such as the statute of frauds, for example, will in the absence of clear and convincing evidence of agreement avoid the administrative difficulties and expense of full-blown trial in certain types of important cases in which the parties have not supplied either the formal requirements evidencing such agreements or can supply other evidence as convincing as those formal requirements.

Again, this is not to discount the importance of the rules. You must know the rules to articulate your arguments in a manner that makes sense to lawyers, judges, and law professors. You are now a member of a profession, and you must communicate in the language of the profession. But you will never persuasively apply those profession-specific rules without first understanding the human disputes, the evidence, and the ways that evidence persuades human beings as to the merits of the disputes. Then, and only then, can you begin to structure your arguments in a manner that usefully employs the technical legal rules.

As a final note, my disquisition here should put to rest the myth — even one propounded by the Chief Justice of the U.S. Supreme Court as a means of obtaining confirmation in the course of a farcical political show — that applying legal rules to resolve legal disputes is the same as calling balls and strikes.

Preaching to the converted or trying to convince the unconvinced? They’re very different activities, and the former may well undermine the latter.

One does not persuade the undecided by means of name-calling and comparing oneself to the oppressed — one persuades the undecided with reasoned argument.

I’m not talking about healthcare — I’m talking about copyright and music again.

Ten days ago, a federal court granted Veoh’s motion for summary judgment and dismissed Universal Music Group’s (”UMG”) lawsuit alleging that Veoh, which, like YouTube, allows users to share videos free of charge, for contributing to and inducing copyright infringement as a result of the uploading by Veoh users of copyrighted videos. A copy of the decision is available here.

The court concluded that Veoh’s efforts and policies to limit incidents of infringement and to work diligently to keep infringing works off its website satisfy the “safe harbor provisions” that shield it from liability under the Digital Millennium Copyright Act (the “DMCA”). I am no expert on the DMCA’s safe harbor provisions (an FAQ on those provisions is available here), but the decision strikes me as a rather thorough exploration of the legal issues and of the evidence. Moreover, some of UMG’s arguments are downright specious, including what the court characterizes as its “first.” Typically — in fact, universally among effective lawyers — a lawyer makes his client’s strongest argument first.

UMG’s first argument was that  Veoh is not entitled to the safe harbor protections of the DMCA because it had “actual knowledge” that Veoh knew there were copyrighted videos on its website. UMG “proof” Veoh’s actual knowledge was that Veoh “knew that it was hosting an entire category of content—music—that was subject to copyright protection.” Slip op. at 14. The proof was hardly sufficient to the court, for reasons that seem, to me, persuasive:

First, the mere fact that Veoh was hosting material contributed by users that could be infringing cannot be proof of “actual knowledge” that there are infringing materials on the service because otherwise there would be no purpose to the safe harbor Congress created in the DMCA. “[V]ast portions of content on the internet are eligible for copyright protection (including plenty of materials posted on this site). Id. If one held providers like mine liable for allowing the use of materials by its users that could, if used improperly, be infringing, the internet as we know it would end.

In addition, it is unreasonable to interpret the DMCA to permit such proof to establish “actual knowledge” of infringement because if one were to accept UMG’s theory the DMCA’s notice-and-takedown provisions would be “completely superfluous because any service provider that hosted copyrighted material would be disqualified from the section . . . safe harbor regardless of whether the copyright holder gave notice or whether the service provider otherwise acquired actual or constructive knowledge of specific infringements.” Courts will typically interpret statutes so that their interpretations will not make other parts of the statute meaningless. If Congress intended to create the notice-and-takedown procedures in one part of the statute, it wouldn’t be reasonable to interpret another part of the statute to make them meaningless.

Moreover, UMG made arguments that were refuted by the evidence, including the argument that “Veoh, of course, knew that it never had a license from any major music company to display music content and thus knew that all such content was unauthorized.” Id. (emphasis added) Unfortunately for UMG, its own evidence showed that “[a]mong the types of videos subject to copyright protection but lawfully available on Veoh’s system were videos with music created by users and videos that Veoh provided pursuant to arrangements it reached with major copyright holders, such as SonyBMG.”

Let me be clear — I have not researched the takedown-and-notice provisions of the DMCA to the degree that would make me feel reasonably certain that the court was correct in the decision it reached, but I am certainly persuaded by the reasoning it set forth in its opinion (and what I do know about those provisions) to be well along the way to that conclusion. I am, however, quite open to being convinced by those who would argue otherwise.

I am not convinced at all, however, by Chris Castle (a self-described journalist in the media and communications fields), who’s “first observations” about the decision consist entirely of name-calling, far-fetched analogies, and arguments I know are unfounded. He titles his post “Gideon’s Remix” and explains that he is comparing “independent artists and songwriters” hurt by the court’s decision to the defendant in Gideon v. Wainwright, the landmark Supreme Court decision that established the right of criminal defendants to legal representation in their criminal proceedings. The defendant in Gideon had been sentenced to five years in prison for allegedly stealing about $55 and a few bottles of beer from a pool room. He had been forced, due to his inability to afford a lawyer, to defend himself against the charges.

You better have some evidence of real hardship before you start comparing “independent artists and songwriters” to Clarence Earl Gideon, and you better realize that there is a world of difference between losing your freedom for 5 years and not being entitled to deny the opportunity for current technology to do the myriad of legitimate and enormously beneficial things it does.

Castle next writes that “[i]f the decision [is allowed] to stand, copyright becomes a Constitutional right without a remedy.” That’s odd. The law provides plenty of remedies for copyright infringement, including statutory awards that do not even require evidence that establishes any financial harm arising from the infringement.

I think Castle’s reasoning that Veoh’s activities allow infringement without a remedy might be illuminated by 2 other assertions he makes. First, he suggests that copyright infringement is no different than the theft of personal or real property:

And why limit the decision to the online world–why not extend the notice and shakedown concept to the physical world, too? Why not apply it to cars, or homes, or personal property generally? Why not make our offline economy into one big squat?

This argument is just plain silly. If someone steals a car, the damage is obvious — the owner no longer has the car to use or sell. If someone squats in an apartment you own, that’s property you cannot rent to someone else. But the fact that someone might have improperly posted a copyrighted song on Veoh doesn’t eliminate the fact that the vast majority of videos posted on Veoh are not infringing and are beneficial to Veoh’s users. Moreover, the “independent artists and songwriters” whose “property” is allegedly being misused have the legal power to stop the misuse, the right to sue the infringing Veoh user for damages (without showing harm), and the possession of the thing itself allegedly “stolen.”

Castle states too that leaving the recording companies (and the “independent artists and songwriters” he seems to equate to UMG) to find infringing materials is too great a burden to expect of them:

It seems an entirely unreasonable burden to force independent artists, songwriters, unions, directors, writers, record companies and film studios to search the Internet 24 hours a day, 7 days a week to find infringing copies of works that have not been licensed or approved for use.

I’m not convinced it is an unreasonable burden. It’s easy for me to find online any reference to me or my writings. And it may well be reasonable to impose that burden on me and all those “independent artists” (one might forget UMG was the plaintiff in the lawsuit) in exchange for the benefit of having sites like YouTube and Veoh and the like. Most importantly, the decision on whether, given the benefits provided to society by requiring copyright holders to send takedown notices to services like Veoh (rather than imposing on Veoh the burden of pre-clearing everything posted on its service) is a decision Congress made. If Castle thinks it was a bad judgment, his beef is with Congress, not the court that decided the Veoh case.

Castle also dismisses as a “canard” without any suggestion that there are merits to it the argument that the fair use of copyrighted materials on which a lot of the value on blogs, hosting sites, and search engines is grounded in the constitutional right to free speech. The plain fact is that copyright is a limitation on free speech — without the rights accorded for a limited time and for limited purposes to copyrighted materials, their use would be constitutionally protected by the First Amendment. Thus, the rights accorded by copyright necessarily must be balanced against free speech rights, and this principle is one that is no “canard” — it is well- and long-established as the basis of fair use.

Finally, Castle resorts to name calling. He calls Google “childish” for re-posting videos that it has removed the soundtrack from — something that as far as I can tell is a perfectly legitimate response to a legitimate takedown notice from the owner of the copyright in the soundtrack. He also calls Lawrence Lessig “creepy,” which I suppose is a step up from another post in which he calls Lessig “Lyndon Larouche.”

Again, though, you only gratify those who already believe Lessig is a creepy fascist by tossing around names like that, and anyone who does not already find glee in such ignorance will at best be unpersuaded; more likely, they’ll be turned off.

So is Veoh correctly decided? Castle has only made me feel more strongly that it was. But I remain open to reason.

Lawyers need to learn EVERYTHING.

A student complained to me yesterday that he was being penalized on his law exam because he didn’t know as much about the world as other people. I laughed. I would imagine that greater knowledge about the world would lead to the better performance in any occupation. But the complaint highlighted something unique I think to law. First, law does not stand alone — it only operates in connection with specific activities. If you’re a lawyer for an investment banker, you better understand credit default swaps. If you’re a lawyer for a real estate developer, you better know an awful lot about building. If you’re a family lawyer, a heavy dose of sociology and psychology would be very helpful. Lawyer need to be experts about the REALITY they are acting as lawyers within. The rules are the easy part. The hard part of lawyering is figuring out how to take evidence and use it effectively to interpret and apply those rules. The more you can explain persuasively what and why things happened, the more you can persuasively argue what the law means when it applies to what happened.

It also highlighted part of what I love about law. Every client, every problem, and every transaction requires me to learn about people and things that  I never knew before, often about people and things I had no clue even existed. The world is a very interesting and complicated place, and there’s no end of learning.

The fact my students know a lot less than I do is no surprise. Most of them are more than 25 years younger than I am. But they need to know that they always need to learn more and that I’m not penalizing them for not knowing things they haven’t been exposed to — I’m teaching them that the more they’re exposed to the better they’ll perform as lawyers.

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.

Chief Justice John Roberts on legal writing

Bryan Garner is the most commercially successful of legal writing teachers. On his company’s web sites, he has numerous short videos with judges from around the country as well as onger interviews with the Supreme Court Justices. Here is his interview with Chief Justice John Roberts on, among other things, the centrality of writing in legal practice:

Law is, first and foremost, human drama.

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

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

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

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

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

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

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

Piecing together coherence

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

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

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

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

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

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

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

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

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

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

Should we even consider foreign law in making our own?

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

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

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

Sorry, but your political enemies can use your copyrighted works (as long as their use is fair use).

Many people believe that an artist’s rights in her work include the right to prevent the use of the work on behalf of causes and beliefs she does not believe in. That may be true in Europe; it is not true in the U.S., provided that the use the artist is trying to deny does not exploit the markets created by the original work. In other words, politicians with whom singers disagree may well have the right to use excerpts from those singers’ songs. And the producers of movies that advance views with which the singers take strong exception may not have any worry as long as they are using the songs they are using aren’t being used merely to attract an audience to the movie by use of the song.

Times Higher Education explains the difference between European and Anglo-American law:

The later European view of copyright regarded a published work as the author’s offspring as much as his property, endowing him with inalienable moral as well as tradeable commercial rights. The Anglo-American tradition in copyright, which is based firmly in the notion of property and income, resisted this concept.

Thus, in June, a federal court in New York City denied Yoko Ono’s request for an injunction against further showing and distribution of the movie Expelled, which, as I have previously written, criticizes evolution, promotes the teaching of intelligent design, and, in the process, uses 15 seconds of John Lennon’s song “Imagine.”

As I wrote when Ono’s lawsuit was first filed, If the filmmakers had tried merely “to capitalize on the film as soundtrack material that would be attractive to an audience would likely not be fair use, but, if, as seems likely, the song is quoted to criticize its atheism, that use would likely constitute fair use, regardless of whether Ono finds the users’ message objectionable.” The court, apparently, thought similar things (citations and footnotes omitted; hyperlink added):

Defendants’ use is transformative because the movie incorporates an excerpt of Imagine for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” (”Imagine” lyrics) As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.” The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naïveté of John Lennon’s views. The excerpt’s location within the movie supports defendants’ assertions. It appears immediately after several scenes of speakers criticizing the role of religion in public life. In his voiceover, Ben Stein then connects these sentiments to the song by stating that they are merely “a page out of John Lennon’s songbook.” In defendants’ view, “Imagine” is a secular anthem caught in a loop of history recycling the same arguments from years past through to the present. We remind our audience that the ideas they just heard expressed from modern interviews and clips that religion is bad are not and have been tried before with disastrous results.”  The filmmakers “purposefully positioned the clip . . . between interviews of those who suggest that the world would be better off without religion and an interview suggesting that religion’s commitment to transcendental values place limits on human behavior. . . . mak[ing] the point that societies that permit Darwinism to trump all other authorities, including religion, pose a greater threat to human values than religious belief.”

Defendants’ use of “Imagine” is similar to the use at issue in a recent decision of the United States Court of Appeals for the Second Circuit in which fair use was found, Blanch v. Koons. There, the visual artist Jeff Koons copied photographer Andrea Blanch’s photograph from a fashion magazine without permission and incorporated a portion of it into one of his paintings.  . . . As in Blanch, defendants here use a portion of “Imagine” as “fodder” for social commentary, altering it to further their distinct purpose. Just as Koons placed a portion of Blanch’s photograph against a new background, defendants here play the excerpt of the song over carefully selected archival footage that implicitly comments on the song’s lyrics. They also pair the excerpt of the song with the views of contemporary defenders of the theory of evolution and juxtapose it with an interview regarding the importance of transcendental values in public life. Plaintiffs contend that defendants’ use of “Imagine” is not transformative because defendants did not alter the song, but simply “cut and paste[d]” it into “Expelled.” As the foregoing discussion illustrates, however, this argument draws the transformative use inquiry too narrowly. To be transformative, it is not necessary that defendants alter the music or lyrics of the song. Indeed, defendants assert that the recognizability of “Imagine” is important to their use of it.  Defendants’ use is nonetheless transformative because they put the song to a different purpose, selected an excerpt containing the ideas they wished to critique, paired the music and lyrics with images that contrast with the song’s utopian expression, and placed the excerpt in the context of a debate regarding the role of religion in public life. Plaintiffs also contend that defendants’ use of “Imagine” is not transformative because it was unnecessary to use it in order to further the purposes defendants have articulated.

Determining whether a use is transformative, however, does not require courts to to decide whether it was strictly necessary that it be used. In Blanch, although certainly Koons did not need to use Blanch’s copyrighted photo, as opposed to some other image of a woman’s feet, in his painting, the Second Circuit did not suggest that this lack of necessity weighed against a finding of fair use. Similarly, in Bill Graham Archives, the Second Circuit found a transformative use in the defendants’ unauthorized inclusion of several of the plaintiff’s images-principally concert photos-in a coffee-table book about the musical group the Grateful Dead.  Although the defendants manifestly could have proceeded without the plaintiff’s , which constituted only a small part of the book, this posed no obstacle to a finding of fair use.

As I said, I think the use of “Imagine” by the filmmakers without permission is legitimate fair use. Nonetheless, Lennon, and “Imagine” in particular, are being misrepresented. Lennon’s song imagines a world unpolluted by religious sectarianism, not exactly a radical view in light of the issues of the day. But that’s not a view many can find tolerable, even in the U.S. of 2008, and they’ll resort to misrepresentation to support their intolerance.  One day after the decision against Ono, the Wall Street Journal ran a story with the headline The Case Against John Lennon.  The quote that highlights the column?

Nothing to live or die for — what a nightmare.

Mike Thomas points out that the line is “Nothing to kill or die for” and asks:

What is going on here? Why is the WSJ promoting a column with such a provacative title and using a misquote to mislead readers into a negative reaction against John Lennon? The column itself is a mess. It is poorly written, jumbled and fails to adequately explain how John Lennon or his song “Imagine” has anything to do with what the column appears to be about. Here is the pertinent section that mentions Lennon:

“Mr. Sharansky has a new book, titled Defending Identity. It would be equally accurate to call it The Case Against John Lennon. Or, more specifically, the case against ‘Imagine,’ Lennon’s anthem to a world with ‘no countries . . . nothing to kill or die for/And no religion too.’ For Mr. Sharansky, a nine-year resident of the Perm 35 prison camp, that’s a vision that smacks too much of the professed beliefs of the ex-Beatle’s near namesake, Vladimir Ilyich.’

What the hell? Does he think he’s being clever or something? Lennon sounds like Lenin. Get it? So obviously they must be related or they must think alike or something right? Nevermind that “Lenin” was actually an alias for Vladimir Illich Ulyanov, while the surname Lennon dates back hundreds of years to old Ireland.

No, they sound alike so there must be a connection. Right? Kind of like how Obama sounds like Osama so they must be related too. Yeah. That’s the level of reasoning that the column sinks to.

Absolutely pathetic.

And of course he never goes back and explains how V.I. Lenin’s brutal and dictatorial ways have any similarity or correlation to Lennon’s ode to world peace. But fortunately for the cretins who run the WSJ editorial pages, John Lennon is dead and can’t defend his classic work against their asinine columnist’s offhanded smear.

Here’s Ken Miller, a biologist from my alma mater speaking at Case Western Reserve University, from which I am currently on leave, speaking on intellligent design, evolution, and religion:

Rhetoric, hot air, and powerful speech

Charlotte Higgins in the Guardian writes about Barak Obama’s power as a speaker and its connections to ancient oratory, Obama’s training as a lawyer, and the connections between writing and speaking:

There have been many controversial aspects to this presidential election, but one thing is uncontroversial: that Obama’s skill as an orator has been one of the most important factors – perhaps the most important factor – in his victory. The sheer numbers of people who have heard him speak live set him apart from his rivals – and, indeed, recall the politics of ancient Athens, where the public speech given to ordinary voters was the motor of politics, and where the art of rhetoric matured alongside democracy.

Obama has bucked the trend of recent presidents – not excluding Bill Clinton – for dumbing down speeches. . . .Though he has speechwriters, he does much of the work himself. (Jon Favreau, the 27-year-old who heads Obama’s speechwriting team, has said that his job is like being “Ted Williams’s batting coach.”) . . .

More than once, the adjective that has been deployed to describe Obama’s oratorical skill is “Ciceronian”. Cicero, the outstanding Roman politician of the late republic, was certainly the greatest orator of his time, and one of the greatest in history. A fierce defender of the republican constitution, his criticism of Mark Antony got him murdered in 43BC.

During the Roman republic (and in ancient Athens) politics was oratory. In Athens, questions such as whether or not to declare war on an enemy state were decided by the entire electorate (or however many bothered to turn up) in open debate. Oratory was the supreme political skill, on whose mastery power depended. Unsurprisingly, then, oratory was highly organised and rigorously analysed. The Greeks and Romans, in short, knew all the rhetorical tricks, and they put a name to most of them.

It turns out that Obama knows them, too. One of the best known of Cicero’s techniques is his use of series of three to emphasise points: the tricolon. (The most enduring example of a Latin tricolon is not Cicero’s, but Caesar’s “Veni, vidi, vici” – I came, I saw, I conquered.) Obama uses tricola freely. Here’s an example: “Tonight, we gather to affirm the greatness of our nation, not because of the height of our skyscrapers, or the power of our military, or the size of our economy …” In this passage, from the 2004 Democratic convention speech, Obama is also using the technique of “praeteritio” – drawing attention to a subject by not discussing it. (He is discounting the height of America’s skyscrapers etc, but in so doing reminds us of their importance.)

One of my favourites among Obama’s tricks was his use of the phrase “a young preacher from Georgia”, when accepting the Democratic nomination this August; he did not name Martin Luther King. The term for the technique is “antonomasia”. One example from Cicero is the way he refers to Phoenix, Achilles’ mentor in the Iliad, as “senior magister” – “the aged teacher”. In both cases, it sets up an intimacy between speaker and audience, the flattering idea that we all know what we are talking about without need for further exposition. It humanises the character – King was just an ordinary young man, once. Referring to Georgia by name localises the reference – Obama likes to use the specifics to American place to ground the winged sweep of his rhetoric – just as in his November 4 speech: “Our campaign … began in the backyards of Des Moines and the living rooms of Concord and the front porches of Charleston”, which, of course, is also another tricolon. . . .

It is not just in the intricacies of speechifying that Obama recalls Cicero. Like Cicero, Obama is a lawyer. Like Cicero, Obama is a writer of enormous accomplishment – Dreams From My Father, Obama’s first book, will surely enter the American literary canon. Like Cicero, Obama is a “novus homo” – the Latin phrase means “new man” in the sense of self-made. Like Cicero, Obama entered politics without family backing (compare Clinton) or a military record (compare John McCain). Roman tradition dictated you had both. The compensatory talent Obama shares with Cicero, says Catherine Steel, professor of classics at the University of Glasgow, is a skill at “setting up a genealogy of forebears – not biological forebears but intellectual forebears. For Cicero it was Licinius Crassus, Scipio Aemilianus and Cato the Elder. For Obama it is Lincoln, Roosevelt and King.”

Steel also points out how Obama’s oratory conforms to the tripartite ideal laid down by Aristotle, who stated that good rhetoric should consist of pathos, logos and ethos – emotion, argument and character. . . .

In English, when we use the word “rhetoric”, it is generally preceded by the word “empty”. Rhetoric has a bad reputation. McCain warned lest an electorate be “deceived by an eloquent but empty call for change”. Waspishly, Clinton noted, “You campaign in poetry, you govern in prose.” The Athenians, too, knew the dangers of a populace’s being swept along by a persuasive but unscrupulous demagogue (and they invented the word). And it was the Roman politician Cato – though it could have been McCain – who said “Rem tene, verba sequentur”. If you hold on to the facts, the words will follow.

Cicero was well aware of the problem. In his book On The Orator, he argues that real eloquence can be acquired only if the speaker has attained the highest state of knowledge – “otherwise what he says is just an empty and ridiculous swirl of verbiage”. The true orator is one whose practice of citizenship embodies a civic ideal – whose rhetoric, far from empty, is the deliberate, rational, careful organiser of ideas and argument that propels the state forward safely and wisely. This is clearly what Obama, too, is aiming to embody: his project is to unite rhetoric, thought and action in a new politics that eschews narrow bipartisanship. Can Obama’s words translate into deeds? The presidency of George Bush provided plenty of evidence that a man who has problems with his prepositions may also struggle to govern well. We can only hope that Obama’s presidency proves that opposite.

One of the most impressive and useful things to me about Obama’s speeches is his ability to unite his rhetorical moves (like the use of anaphora and epiphora noted in the Higgins’ article) to very powerful themes.

The most notable example of this to me was his 2004 Convention speech — the part about there not being a “Red or Blue America,” but, rather, “a United States of America,” etc. That speech, in addition to employing numerous rhetorical flourishes, employed them all to further the idea we who grew up in the U.S. have all grown up with: e pluribus unum; out of many, one. To me, that idea — that we are a united country precisely because we recognize and respect our vast differences — has always been one of the best things of what it means to be a U.S. citizen.

Sometimes I think that when we talk about rhetoric we focus on the devices at the price of the content we mean them to convey. I always think the primary task is to identify a theme or themes the speaker/writer wants to convey — then one can use the devices to further that theme. Without the theme, the devices really are just empty rhetoric.

Lewis Hyde: remaking copyright by recovering the past

Lewis Hyde is one of the great, and almost entirely unknown, U.S. geniuses. According to this past week’s New York Times Magazine, “David Foster Wallace called him ‘one of our true superstars of nonfiction.’ Hyde’s fans – among them Zadie Smith, Michael Chabon and Jonathan Lethem – routinely use words like ‘transformative’ and ‘life-altering’ to describe his books, which they’ve been known to pass hand to hand like spiritual texts or samizdat manifestoes. The source of much of this reverence is Hyde’s first book, The Gift (1983), which has never been out of print (it was recently rereleased by Vintage in a 25th-anniversary edition) and which tries to reconcile the value of doing creative work with the exigencies of a market economy.”

According to the Times, Hyde’s attention these days has turned to the ways computers and the internet have affected our views of creation and property. As I’ve written before, intellectual property may be property, but we make a huge mistake when we assume it is property just like land or couches are property. The ease with which we now can copy and instantly and disseminate intellectual property world-wide has, however, entirely upset existing intellectual property law. We should not be shocked by the legal chaos — when the material underpinnings on which law has been made change, the law is likely no longer going to work very well. When that upheaval occurs in a political climate that worships capitalism, we probably shouldn’t be surprised that, as Hyde puts it, “the last 20 years have witnessed a corporate ‘land grab’ of information – often in the guise of protecting the work of individual artists – that has put a stranglehold on creativity, in increasingly bizarre ways.”

One particular example of what upsets Hyde is the Sonny Bono Copyright Extension Act, which is commonly understood to be the result of Disney’s capacity to economically coerce legislation to protect its monopoly over Mickey Mouse. The point of copyright law is to encourage invention for the public good. As the Supreme Court has stated, “[t]he monopoly created by copyright thus rewards the individual author in order to benefit the public.” There is no reason to believe Mickey Mouse and Donald Duck would not have been invented and that Walt Disney would not have been fairly compensated for their invention without the Sonny Bono Copyright Extension Act’s posthumous extension of the Disney Corporation’s control over the images of Mickey Mouse and Donald Duck. Such laws provoke Hyde to write:

Always in the background lies the question of the commercialization of culture, exemplified at the moment by many things–the ‘enclosure’ of the public domain, the patenting of aboriginal medicines, proprietary control of genetic materials or of the internet, and the general market triumphalism that has followed the end of the Cold War.

According to Hyde, we can begin to achieve the intended purposes of intellectual property — to promote invention, not maximize the wealth of the inventors — if, as the Times writes, we recover

the idea of the cultural commons as a deeply American concept. To that end, [Hyde] excavates a history of the American imagination in which the emphasis is not on the lone genius (Thoreau scribbling hermetically in the Massachusetts woods) but on the anonymous pamphleteer, the inventor eager to share his discoveries. In an essay that offers a preview of his book (posted, fittingly, on his Web site), Hyde posits that the history of the commons and of the creative self are, in fact, twin histories. “The citizen called into being by a republic of freehold farms,” he writes, “is close cousin to the writer who built himself that cabin at Walden Pond. But along with such mainstream icons goes a shadow tradition, the one that made Jefferson skeptical of patents, the one that made even Thoreau argue late in life that every ‘town should have … a primitive forest …, where a stick should never be cut for fuel, a common possession forever,’ the one that led the framers of the Constitution to balance ‘exclusive right’ with ‘limited times.’ It is a tradition worth recovering.”

McElhaney on being a good writer and speaker: let the story pick the words. Glass: and then explain the point.

How do you do what I’ve been writing about — making your thinking clear by avoiding empty phrases that don’t address the really dire questions you face?  My former Case Western Reserve colleague Jim McElhaney, who’s literally written the book on Trial Practice, has excellent advice in a column entitled “Stop Sounding Like a Lawyer“: “The first step in becoming a good writer and speaker is to concentrate on the story. Let the story-not the legal theory-pick the words.”

McElhaney does a good job in the article of telling a story and conveying its significance.  Ira Glass (a college classmate –  I have crossed paths throughout my life with remarkably talented and accomplished people without many of those traits rubbing off on me) explains that both a compelling story and reflection upon the story’s significance are necessary to capture an audience’s attention:

Creative law “enforcement” in difficult times

From the Chicago Tribune:

“Approximately 70 foreclosure orders that will not be served are displayed at the Cook County Sheriff’s office on Wednesday.

“At least it was until Wednesday, when Sheriff Tom Dart announced he wouldn’t do it anymore.

“Dart cited the growing number of evictions that involve rent-paying tenants who suddenly learn their building is in foreclosure because the landlord neglected to pay the mortgage. By refusing to do any foreclosure-related evictions, the hope is that banks will change their policies.”

(hat tip to MInor Wisdom)

Is there evidence of voting fraud? Not if you look at all the facts.

Lawyers are skeptics not because they are innately skeptical but because they are trained by experience not to trust the first plausible explanation of a given set of facts.

ACORN is very much in the news these days. As the New York Post reports, “The vote of Darnell Nash, one of four people subpoenaed in a Cuyahoga County probe of ACORN’s voter-registration activities, was canceled and his case was turned over to local prosecutors and law enforcement, Board of Elections officials said yesterday. Nash had registered to vote repeatedly from an address that belonged to a legitimately registered voter, officials said during a hearing at which the subpoenaed voters were to testify.”

News like this provokes Sarah Palin to declare, “The left-wing activist group, ACORN, is now under investigation for voter registration fraud in a number of battleground states… We can’t allow leftist groups like ACORN to steal this election.”

Let’s take a look at this news. First, as my colleague Jonathan Adler points out, “Of course registration fraud and actual voter fraud are not the same thing.” (emphasis added) In other words, the fact someone is fraudulently registered does not mean that he will or can get away with fraudulently voting. In fact, there is no evidence in recent history of any voter fraud involving voting by fraudulently registered voters. Jon would counter that registration fraud makes it impossible or at least very difficult to prove voting fraud.

First, I’m not sure why that’s true. Voting fraud investigations would look into whether people who had voted were properly registered. The same evidence available in the prosecution of registration fraud would therefore be available.

Second, it’s at least suspicious that the eruption of investigations and prosecutions of alleged registration fraud shortly before an election follows so closely the pattern that David Iglesias, the former U.S. Attorney in New Mexico, points to as the background of his firing by the Bush administration. Having investigated such allegations and found them inadequate to support any prosecution for voting fraud, Iglesias was fire, apparently for not following the Republican script. Now the Mukasey Justice Department appointed a special prosecutor to look into the firing of Iglesias and several other U.S. Attorneys.

Iglesias has explained that he was pressured to bring these types of voter fraud claims by Republicans in New Mexico shortly before elections in order, in his view, to influence the elections. He investigated the claims and concluded there was no basis for prosecution. Is there suddenly now evidence for identical prosecutions?

So is there widespread work to get enough fraudulent voters on the rolls to elect Obama? I doubt it. In fact, I am prepared to say, no way.

Addendum:

U.S. Department of Justice crime statistics cast doubt on the existence of widespread voter fraud. According to a report by the Justice Department’s Criminal Division on prosecutions between October 2002 and September 2005, the Justice Department charged 95 people with “election fraud” and convicted 55. Among those, however, just 17 individuals were convicted for casting fraudulent ballots; cases against three other individuals were pending at the time of the report. Further, on April 12, 2007, The New York Times reported, “Five years after the Bush administration began a crackdown on voter fraud, the Justice Department has turned up virtually no evidence of any organized effort to skew federal elections, according to court records and interviews.”

Additionally, a 2007 report titled “The Truth About Voter Fraud” by New York University’s Brennan Center for Justice stated: “[W]e are aware of no recent substantiated case in which registration fraud has resulted in fraudulent votes being cast”:

There have been several documented and widely publicized instances in which registration forms have been fraudulently completed and submitted. But it is extraordinarily difficult to find reported cases in which individuals have submitted registration forms in someone else’s name in order to impersonate them at the polls. Furthermore, most reports of registration fraud do not actually claim that the fraud happens so that ineligible people can vote at the polls. Indeed, we are aware of no recent substantiated case in which registration fraud has resulted in fraudulent votes being cast.

The life of the law is a life of art

Last night, I came back across the words(pdf) of my former professor, James Boyd White, that express eloquently my view of the common ground shared by artists and lawyers:

As I conceive it, the life of the law is . . . a life of art, the art of making meaning in language with others. Its goal, like that of other arts always imperfectly attained, is the integration into meaningful wholes of the largest and most contradictory truths – the incorporation into the case of what can be said on both sides of it, the recognition in our discourse of other ways of talking – all under the ruling requirement that what we say makes sense. The lawyer must know what the literary person knows, that he or she is always one person speaking to others in a language that is contingent and imperfect. And the excellence of mind required of the lawyer, like the excellence of the composition the lawyer makes, is integrative: a putting to work in the same text of as many of one’s resources and capacities as possible in an meaningful way.

What is obscene?

Glenn Greenwald points out an interesting irony. A federal judge last week sentenced Paul Little to nearly 4 years in prison for distributing a porn film the court determined was “obscence” despite the fact it involved only consenting adults and was distributed only to consenting adults. Little’s attorneys argued that the film couldn’t be obscene because it involved no pain to the participants. The judge rejected the argument, writing, “This is clearly degrading, clearly humiliating and intended to be so.”

The Bush Department of Justice makes it a point to prosecute producers of adult pornography. The irony, of course, is that this is the same Department of Justice that argued that “torture” does not include any conduct that does not cause “the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” To compound the obscenity, “our Congress retroactively immunized anyone and everyone in the Government who may have been involved in any state-sanctioned line-crossing behavior even after the lines were radically re-drawn”

1984 Redux?

As explained in this case study (pdf):

In early 1984, Pennzoil and Getty Oil agreed to the terms of a merger. But before any formal documents could be signed, Texaco offered Getty Oil a substantially better price, and Gordon Getty, who controlled most of the Getty shares, reneged on the Pennzoil deal and sold to Texaco. Naturally, Pennzoil felt as if it had been dealt with unfairly and immediately filed a lawsuit against Texaco alleging that Texaco had interfered illegally in the Pennzoil?Getty negotiations. Pennzoil won the case; in late 1985 it was awarded
$11.1 billion, the largest judgement ever in the U.S. An appeals court reduced the judgement by $2 billion, but interest and penalties drove the total back up to $10.3 billion.

History seems to be repeating itself in the battle between Citigroup and Wells Fargo over who will buy Wachovia. As reported in today’s New York Times, “Wachovia was on the verge of collapse last week until Citigroup salvaged it in a government-backed deal that was upended Friday, when Wells Fargo made its startling bid. The announcement touched off a whirlwind of legal activity and angry recriminations by Citigroup . . . .”

Lawyers for Citigroup and Wells Fargo argued at a judge’s home on Saturday evening, Citigroup’s lawyers in person and Wells Fargo’s by telephone. As of now, the status of the situation is very much up in the air, though the Times hardly minimizes the dispute’s importance: “At stake is the shape of the American banking system, which is being redrawn almost weekly as a handful of large players merge, and the government’s own standing to broker future bank rescues . . . . .

Look for new combinations of old things

Lists of instructions for boosting creativity often suggest combining things you have not thought might be related. Obviously, this advice has application in art. It also, just as obviously, has application in law. As Shaun Tan, an accomplished Australian author and illustrator puts it:

Paul Klee once described an artist as being like a tree, drawing the minerals of experience from its roots – things known, observed, read, intuited and felt – and slowly processing them into new leaves. Similarly, the science writer Stephen Jay Gould notes that the greatest discoveries are to be found not in a freshly hewn cliff of shale, but in old museum collections, by rethinking the relationships between the objects that have already know about.

Four weeks into my Contracts class with a group of new law students, they still goggle when I point out that the “rules” they learned the first week can be used to explain the results the fourth week. The students think the fourth week’s materials have to be explained by the fourth week’s “rules.” They can be, but in law any good explanation for a given result is an acceptable one. The more good explanations you have, the more likely you are to the court you should win.

In Neil Duxbury’s “Truth and Rhetoric,”(pdf) Ratio Juris. Vol. 12 No. 1 March 1999 (116–121), the author quotes from Dennis Patterson’s book Law and Truth:

In choosing between different interpretations, we favor those that clash least with everything else we take to be true. In law, as in all matters, “[w]e convince someone of something by appealing to beliefs he already holds and by combining these to induce further beliefs in him, step by step, until the belief we wanted finally to inculcate in him is inculcated.” In law, we choose the proposition that best hangs together with everything else we take to be true. (Law and Truth, 172, citation omitted)

Of course, the ability to combine ideas in new ways requires having as large a storehouse of ideas as possible.

Good Guys, Bad Guys, the ambiguity of everyday life, and effective argument.

It’s a funny thing that non-lawyers usually consider most legal disputes to be between Right and Wrong, the Good Guy and the Bad Guy. It’s an especially difficult prejudice to overcome in first year law students.

Don’t get me wrong. There are situations where there are Good Guys and others where there are Bad Guys. Then there are situations where there are both Good Guys and Bad Guys. The trick in becoming a good lawyer, though, is that from his own point of view, each side to a dispute thinks he’s the good guy.

Thus, if you merely try to paint your adversary as a Bad Guy, you’re going to lose. If, on the other hand, if you understand his arguments as ones made out of good faith in the belief that they represent truth, justice, and the American way, you have gone a long way toward figuring out how to shape your arguments so you can prevail.

Both sides think they’re right. And both sides to most disputes have merit. Usually, though, one side has the better of a well-articulated argument.