Creativity? YOU CAN’T HANDLE CREATIVITY!

In a study out of Cornell University, The Bias Against Creativity: The Reason People Desire But Reject Creative Ideas, the authors point out that creative responses to problems create uncertainty, and that people reject those creative ideas because they can’t handle the uncertainty:

Although the positive associations with creativity are typically the focus of attention both among scholars and practitioners, the negative associations may also be activated when people evaluate a creative idea. For example, research on associative thinking suggests that strong uncertainty feelings may make the negative attributes of creativity, particularly those related to uncertainty, more salient

The authors conclude:

Our results show that regardless of how open minded people are, when they feel motivated to reduce uncertainty either because they have an immediate goal of reducing uncertainty, or feel uncertain generally, this may bring negative associations with creativity to mind which result in lower evaluations of a creative idea.

I’ve always told students and colleagues that being genuinely creative requires courage and the ability to persevere in the face of rejection. There’s good reason for that. As much as “innovation” is the catchword of our age, very few people in decision-making positions are really brave enough to accept innovative ideas (whether they’re teachers, school administrators, politicians, lawyers, or corporate executives).

hat tip to Farnam Street

An Introduction to Copyright, Fair Use, and Appropriation Art, Part 1

In September, I spoke at SPACES on copyright and art, an opportunity that I used to go introduce copyright and fair use and the contentious issues that remain entirely unresolved in connection with appropriation art. I had an opportunity to give a similar talk last week at Wooster College.

You can see my presentation here. But the presentation, obviously, is only the starting point of a talk, so I thought I’d take this opportunity to “annotate” the presentation, providing some commentary and a lot of links to provide most of the content of the talk here and to supplement it for those who were there.

This post constitutes the first part of these annotations. I will continue this supplement to the presentation in the near future.

The first “slide” (I used Prezi, not PowerPoint, for the first time in this talk) is a video by Kutiman, a musician, composer, producer and animator from Israel. He is best known for creating an online video music project entitled ThruYOU consisting of individual videos mixed entirely from samples of YouTube videos.

The second slide is the title slide: What does an artist need to know about copyright law? Although I spoke a lot about appropriation art and copyright law, I emphasized my sincere belief that to negotiate the difficulties posed by copyright law in an era of novel and breathtaking technologies requires the gifts of an artist. I used Warhol’s Campbell’s Soup Can and Shepard Fairey’s Obama Hope poster as 2 examples of what I was talking about in part because they encountered such different responses from the corporation from whom the artist appropriated his image. Warhol received an amusing and appreciative letter from Campbell’s Soup. Fairey was sued by the Associated Press, a lawsuit that was eventually settled and thus left unresolved the underlying legal questions.

The next 2 slides ask, “What is an artist?” and give one answer, provided by performance artist Guillermo Gómez Peña:

[T]he artist doesn’t really give answers. That is the role of the theorist, the scientist, the political activist, and the religious leader. The role of the artist is to ask impertinent and complex questions, irritating questions, and also to make the audience aware of the process of inquiry, and that’s where the pedagogical dimension lies—when the performance becomes the search, and when the process of search becomes the performance; and people see you struggling with meaning, with your own philosophical despair, with your political demons, and your own aesthetics.

Not only does this confrontation with questions that confront all of us strike me as central to the role of the artist; it also strikes me as central to the role of the lawyer. Moreover, one of the most difficult stumbling blocks in teaching law students is getting them over the belief that they will learn answers to the questions they will confront in their careers rather than the skill to identify the right questions and to best move forward in light of those questions.

Thus, the next 2 slides ask, “What is a lawyer?” and provide a quote from from Edward Levi, a legal scholar studied by first year law students when I went to law school but now largely neglected, to the effect that legal “rules” are not the sort of rules people typically expect:

[T]he rules change from case to case and are remade with each case. Yet this change in the rules is the indispensable dynamic quality of law. It occurs because the scope of a rule of law, and therefore its meaning, depends upon a determination of what facts will be considered similar to those present when the rule was first announced. The finding of similarity or difference is the key step in the legal process.

Lawyers then, like artists, must always be attentive to the similarities and differences that abound in the infinite complexity of human life. If you present me with a legal problem and an answer and then change one fact about the problem, the entire answer may change. Or may not. It depends. So if you’re looking for answers, you’ve come to the wrong place. Another situation is always different. But I can certainly let you in on what I deem important and why.

For the basic rules on copyright and fair use, the U.S. Copyright Office is a terrific starting point on all things copyright. If you are interested in knowing the basics about what you have to do to register a copyright and other nuts and bolts matters, go there.  Stanford’s Copyright and Fair Use Center is also a great resource on all of the questions addressed in my talk. I like the Copyright Website too.

In order to be protected by copyright, a work must be, among other things, “original.” The quintessential illustration of this requirement — which emphasizes that the mere “sweat of the brow” invested by the work’s creator is not sufficient to earn the work copyright protection — is Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), in which the U.S. Supreme Court ruled that the substantial work of compiling and organizing the information required to put together a rural telephone directory did not entitle the directory to copyright protection. The information itself, though the result of the plaintiff’s hard work, constituted “mere facts,” and there was nothing original about the alphabetical arrangement. Thus, the defendant could not be stopped from copying the plaintiff’s directory and selling it as his own.

A more recent example of this principle with some bearing on appropriation art is the case of Meshwerks v. Toyota Motor Sales, Inc. (10th Cir. 2008), in wich the 10th Circuit Court of Appeals dismissed the copyright infringement case brought against Toyota by Meshwerks, which had created digital models of Toyota cars for use in Toyota’s advertising. The digital models are useful because if the art director wants the position of car changed within a photo, the entire scene does not need to be re-shot. All one needs to do is move the digital model around on a computer screen within the digital photograph of the background.

The digital model, while the product of skill, resulted merely in the reproduction of a car. The image itself is nothing more than an image of a fact. While the court noted the obvious difficulties of applying existing law to new technologies, it compared the digital images of cars created by Meshwerks to photographs. Since the invention of photography in the 19th Century — when it was believed by some that photography as a mere transmission of “reality” did not constitute art — courts have concluded that photographs are entitled to copyright protection but only to the extent the photograph consists of elements resulting from the photographer’s choices. Thus, a photograph “is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.”

Decisions rendering the photograph a protectable “intellectual invention” included: the posing and arrangement of [the subject] “so as to present graceful outlines”; the selection and arrangement of background and accessories; the arrangement and disposition of light and shade; and the evocation of the desired expression. Courts today continue to hold that such decisions by the photographer–or, more precisely, the elements of photographs that result from these decisions–are worthy of copyright protection. See, e.g., Rogers v. Koons (“Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.”) (citations omitted).

The digital image of the car that could be inserted and manipulated within a digital image was, in contrast, merely a reproduction of a car. It would only be when an art director placed it within an image that choices regarding lighting, angle, and other elements would be chosen. In contrast, in Time, Inc. v. Bernard Geis Associates,  the court held that the famous “Zapruder film” was entitled to copyright protection. Abraham Zapruder, a Dallas dress manufacturer, had been taking home movie pictures with his camera, when, by sheer happenstance, he captured President Kennedy’s assassination on film. The court observed that “if Zapruder had made his pictures at a point in time before the shooting, he would clearly have been entitled to copyright.” The fact that the moment he filmed happened to be historic did not change that fact. And, if you’re interested, here’s another interesting photography case.

The fact that Congress has the power to pass laws protecting copyright is a result of the Constitution’s Copyright Clause. There are at least 2 important reasons the constitutional dimension of this power is important. First, the Copyright Clause expressly states that Congress has the power for the purpose of promoting innovation. Thus, to the extent copyright law inhibits innovation rather than promotion it, that law very may well be unconstitutional. In addition, copyright limits the ways people can express themselves and thus is a limitation on the freedom of expression protected by the First Amendment. Obviously, that freedom of expression is of supreme importance in our country. Thus, the conflict between the two constitutional rights — the right to protection of one’s creative product and the right of one to express oneself (even by means of another’s creative product) must be balanced. That balance is what results in the doctrine of fair use.

You convince people by confirming that what they believe about the world is true.

One of the most difficult things to convince law students of is that law is not merely the application of law to facts. Students start out believing that learning law is learning the rules that will answer whatever questions arise. Some students never get past that idea. The ones who become good lawyers do.

There are instances in which there are clear rules that are easy to apply. But if that were the whole of the law, we wouldn’t need lawyers, and law students certainly wouldn’t have to pay $45,000 a year for three years to earn a law degree.

Instead, convincing someone that your view of the law is the correct one requires not only finding and applying the correct rule but also in convincing whomever you are trying to convince that the rule and your interpretation of it make sense, are just, are convincing at a gut level. If you can’t do that, you’ll never become a good lawyer.

An inability to get over the stumbling block posed by the desire for a legal system consisting of clear rules that answer every conceivable question, of course, is not confined to some law students. As Jon Krakauer explains in Under the Banner of Heaven, “literalism” — the conviction that there are rules set forth in hallowed texts (which need not be religious, as strains of constitutional “originalism” demonstrate) that answer all the important questions one encounters makes people resistant to the idea that answering the tough questions requires a considerable amount of creativity, acknowledgement of ambiguity, and sensitivity to situational specifics:

For people . . . who view existence through the narrow lens of literalism, the language in certain select documents is assumed to possess extraordinary power. Such language is to be taken assiduously at face value, according to a single incontrovertible interpretation that makes no allowance for nuance, ambiguity, or situational contingencies. As Vincent Crapanzano observes in his book Serving the Word, [this] brand of literalism encourages a closed, usually (though not necessarily) politically conservative view of the world: one with a stop-time notion of history and a we-and-they approach to people, in which we are possessed of truth, virtue, and goodness and they of falsehood, depravity, and evil. It looks askance at figurative language, which, so long as its symbols and metaphors are vital, can open—promiscuously in the eyes of the strict literalist—the world and its imaginative possibilities.

Perhaps this is why literalism rarely carries long-term appeal in a functioning democracy. The majority cannot be convinced for very long without the use of force that there is good reason for elevating the particular hallowed text (much less the literalists particular reading of that text) above all other “reasons.”

I’m reminded of these things by the TED talk embedded below, in which Simon Sinek explains that success in realms as diverse as commerce, invention, and social change depend on making the why of what you do your principle focus.

Thus, in the commercial world, for example, people don’t buy what you do; they buy why you do it. Nevertheless, companies and people typically sell their product or services by explaining what they do and how they do it. They don’t typically even know why they do what they do, and they certainly don’t explain it well.

But the most successful people sell first and foremost why they do what they do. Apple, for example, explains they do what they do to challenge authority. They explain what they do as designing beautiful products that are easy to use. What do they do? They happen to sell computers. That message convinces buyers in ways the typical computer seller’s approach — (1) we sell computers, (2) we make them user friendly — does not.

Simek explains the phenomenon in market terms: the only way to get the majority of consumers to buy a new product or service is to first convince innovators and early adopters, and those people are only persuaded by the conviction they share the seller’s convictions.

But his message about the market is one applicable in all contexts in which one is trying to convince an audience:

People buy what they buy to confirm what they believe about the world.

Tasini v. Huffington Post — frivolous, not creative.

I’m not normally one to bemoan the bringing of lawsuits, and I’m not even bemoaning the fact Jonathan Tasini is able to bring his lawsuit (pdf) “against the Huffington Post [that] hinges . . . on the idea that the site, and Arianna Huffington herself, were ‘unjustly enriched’ in the $315 million sale to AOL because bloggers like him worked for free.”

But I do think b.s. is b.s., and no matter how “creative” Tasini believes his lawyers are, there is no claim here for “unjust enrichment.” As West’s Encyclopedia of American Law explains, unjust enrichment is a theory of legal recovery for a benefit conferred upon someone under circumstances that make it just to pay for that benefit:

Unjust enrichment has three elements. First, the plaintiff must have provided the defendant with something of value while expecting compensation in return. Second, the defendant must have acknowledged, accepted, and benefited from whatever the plaintiff provided. Third, the plaintiff must show that it would be inequitable or unconscionable for the defendant to enjoy the benefit of the plaintiff’s actions without paying for it.

The problem with Tasini’s theory is that neither he nor the other people who wrote for the Huffington Post expected compensation. In fact, they agreed to write for the publication on the understanding they would not be paid. In short, Tasinin had a contract — he would write his pieces, and the Huffington Post would publish them. That he had a contract is, precisely, the problem with his legal claim. Unjust enrichment is only available as a means of legal recovery where there is no contract governing the transaction in question. If there is a contract, the contract determines the terms of the relationship, and it is is by definition not unjust for people to be bound to the terms of a contract they freely entered into.

Tasini is plain wrong when he says otherwise:

The whole legal theory is clear. For unjust enrichment it’s almost irrelevant what agreement was done up front. Unjust enrichment is irrelevant to whether I blog for free or not.

It is true that there is always room for creativity. And it is true that in the face of novel claims one should keep an open mind and pay attention to the evidence and the arguments. But being open to creative legal claims is one thing and being just plain wrong is another. Tasini is just plain wrong:

It’s a novel claim, using some creative thinking by a couple smart young lawyers. You never know how a court is going to rule.

Legal writing: analytic, interactive, and nonroutine. A computer can’t do it.

One of the most difficult lessons to get across to my students is that good legal writing requires them to exercise their imaginations, that I cannot merely tell them what they are supposed to do. It’s no surprise that it’s so difficult to get this message across; even within law schools there are many who believe legal writing is nothing more than composition and citation. So I thought it was interesting that Paul Krugman wrote today on his blog about “the influential analysis of Autor, Levy, and Murnane . . . , which argued that the crucial difference in terms of possible replacement of humans by machines was one of routine versus non-routine, rather than white-collar versus blue-collar . . . .”

In the article Krugman refers to, the authors set forth a chart dividing different tasks into “analytic and interactive tasks” and “manual tasks.” They also then divide each of those categories into those that are “routine” and “nonroutine.” I was relieved, but not surprised, to find that legal writing is an analytic and interactive task that is nonroutine:

DIY, from This American Life: you get justice in the next world, in this world you have the law?

It’s easy sometimes to lose sight of the fact our legal system is called a justice system and that law doesn’t exist for it’s own sake. I suppose, however, that William Gaddis had that confusion in mind when he opened one of his novels with this line:

You get justice in the next world, in this world you have the law

Today I made a brief car ride with my son last an hour so I could hear all of the latest episode of This American Life. Entitled “DIY,” the summary set forth below, from the This American Life web sitem fails to do justice to a story that brought me to tears, that reminds me again what this whole life of the law ultimately boils down to. Fortunately, you can hear the whole episode yourself from the player pasted in below the summary:

PROLOGUE.

Carl King, a self-taught investigator, talks about the murder case he’s working on now—one the police think they’ve already solved. Carl got started in this business after freeing his close friend from prison. He now runs an organization, called Success to Freedom, devoted to helping wrongfully convicted inmates. (2 minutes)

ACT ONE.

Reporter Anya Bourg tells the story of Carl King’s first case, where he’s able to accomplish what experienced detectives and lawyers were not. He proves that his friend was innocent. In this first half of the show, we hear the story of the crime. In 1980, Mario Hamilton was gunned down in the street in Brooklyn. A teenager claimed to have seen it happen. With police prompting, he fingered a guy named Collin Warner as the shooter. No matter that everyone in the neighborhood said someone else murdered Hamilton and that Warner had nothing to do with it. And no matter that the teenager hadn’t witnessed the murder at all. A jury convicted Warner, and he was sentenced to 15 years to life for killing a man he’d never even heard of. Carl, his childhood friend couldn’t let it rest, and started to fight the conviction. He tells everyone he can about the case. He tracks down witnesses. He teaches himself to read court documents. Eventually, he gets a real estate lawyer hooked on the case. (29 minutes)

ACT TWO.

The story of Collin Warner continues. His friend Carl manages to convince the real shooter and the victim’s brother (who watched him die on the sidewalk) to testify on Collin’s behalf. After 21 years in prison, Collin goes free. (24 minutes)

Be creative? Question Authority. Even the CIA thinks so.

Who would’ve thought that the Central Intelligence Agency — often ridiculed by describing its name as an oxymoron — might have such useful resources on creative thinking and problem solving. A chapter on “Keeping and Open Mind” from The Psychology of Intelligence Analysis, sums up the attitude and mind-set any lawyer and law student must cultivate to address the problems they face, problems that — due to the infinite variety of human experience — cannot be solved by merely finding and applying rules:

Creativity, in the sense of new and useful ideas, is at least as important in intelligence analysis as in any other human endeavor. Procedures to enhance innovative thinking are not new. Creative thinkers have employed them successfully for centuries. The only new elements–and even they may not be new anymore–are the grounding of these procedures in psychological theory to explain how and why they work, and their formalization in systematic creativity programs.

Learning creative problem-solving techniques does not change an analyst’s native-born talents but helps an analyst achieve his or her full potential. Most people have the ability to be more innovative than they themselves realize. The effectiveness of these procedures depends, in large measure, upon the analyst’s motivation, drive, and perseverance in taking the time required for thoughtful analysis despite the pressures of day-to-day duties, mail, and current intelligence reporting.

A questioning attitude is a prerequisite to a successful search for new ideas. Any analyst who is confident that he or she already knows the answer, and that this answer has not changed recently, is unlikely to produce innovative or imaginative work. Another prerequisite to creativity is sufficient strength of character to suggest new ideas to others, possibly at the expense of being rejected or even ridiculed on occasion. “The ideas of creative people often lead them into direct conflict with the trends of their time, and they need the courage to be able to stand alone.”

If you think lawyers lifting other lawyers’ language is proof lawyering is easy, you know nothing about true creativity.

There’s always the danger that when someone suggests that genuine creativity can and is built from earlier creative works that someone else will believe the implication is that creativity is no big deal. If I feel I can cut-and-paste from other lawyers’ works then lawyering must be nothing but a cut-and-paste job, right?

It’s not as if I’ve never dealt with these matters for real, as if I’m dealing with it from an academic perspective “unsullied” by the realities of practice. A client who retained me to draft a contract for him once said to me, after we’d spent a considerable amount of time discussing the details of his deal, “It’s all boilerplate, right?”

I responded, “I don’t do boilerplate. Every deal is different, and if you know the lawyer who’s done exactly your deal before and you’re confident the contract he wrote then is just fine for you, go hire him.”

Which isn’t to say I didn’t review a lot of other contracts or that I didn’t lift language from those other contracts. I did. I took a line or two from this one, a paragraph from that, another line from another, etc. And I put those things all together with my notes, shuffled things around, revised a lot of the language I’d lifted from other sources, wrote far more language necessary to express what was necessary to express this particular deal, worked and reworked, checked and rechecked, revised and revised, and at the end I had a document that set forth the client’s deal in all its precision, breadth, and ambiguity. It wasn’t boilerplate at all. But were there lines and even, perhaps, a paragraph lifted from other contracts? Of course.

I obsess about these matters in part because there is terrible confusion about what genuine creativity (in art, music, literature, the practice of law or a myriad of other endeavors) is. The confusion arises because, I believe, there is so much money at stake in the legal and rhetorical wars over copyright. So there are a lot of people who will look at Shepard Fairey’s Obama Hope poster and the photo Fairey used as the poster image’s source, and write things like the following:

Any director, writer or actor interested in making long-term money in the entertainment industry should be calling Fairey what he is: A plagiarist.

While I recognize the attitudes underlying these views — no one else is entitled to make a buck from my work! — the blindness to the creativity involved, even acknowledging the appropriation, is astounding. I’ve gone on at length about my view on this, but no one can deny that Fairey’s poster had a profound resonance and impact during the 2008 presidential campaign, and no one can suggest that the poster would have had any similar impact if the original photo had appeared on the poster rather than Fairey’s reworking. So how can anyone possibly suggest the level of creativity in the poster wasn’t profound?

The KLF “were one of the seminal bands of the British acid house movement during the late 1980s and early 1990s.” Their relevance here is that, “despite their protestations of 1988 about not wishing to be seen as crusaders for sampling, the [KLF] continue to be associated with the cultural movement which retrospectively bundles together those literary and artistic works that make use of ‘creative plagiarism’. 1987: What the Fuck Is Going On? is considered a landmark work in the early history of sampling music in the United Kingdom.” Their #1 British hit, “Doctorin’ the Tardis” “is predominantly a mash-up of the Doctor Who theme music, Gary Glitter’s ‘Rock and Roll (Part Two)’ with sections from ‘Blockbuster!’ by Sweet and ‘Let’s Get Together Tonite’ by Steve Walsh.”

Jimmy Cauty and Bill Drummond — who were the KLF — are also very smart fellows. Among a never-ending series of creative works in a wide range of media, they wrote The Manual: How to Have a Number One the Easy Way, which I’ve heard some describe as a cynical con job but that is far more intelligent and complicated than that. On the one hand, The Manual explains

Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality. In the past, most writers of songs spent months in their lonely rooms strumming their guitars or bands in rehearsals have ground their way through endless riffs before arriving at the song that takes them to the very top. Of course, most of them would be mortally upset to be told that all they were doing was leaving it to chance before they stumbled across the tried and tested. They have to believe it is through this sojourn they arrive at the grail; the great and original song that the world will be unable to resist.

But Drummond and Cauty are not accusing successful musical artists of being “mere plagiarists.” They recognize that even if a song can be broken down into bits and pieces of other songs, there is real genius in great pop music:

So why don’t all songs sound the same? Why are some artists great, write dozens of classics that move you to tears, say it like it’s never been said before, make you laugh, dance, blow your mind, fall in love, take to the streets and riot? Well, it’s because although the chords, notes, harmonies, beats and words have all been used before their own soul shines through; their personality demands attention. This doesn’t just come via the great vocalist or virtuoso instrumentalist. The Techno sound of Detroit, the most totally linear programmed music ever, lacking any human musicianship in its execution reeks of sweat, sex and desire. The creators of that music just press a few buttons and out comes – a million years of pain and lust.

Lewis Hyde makes a similar point in Common as Air, the new book that was the starting point for my exploration the other day of lawyerly “plagiarism”:

“Intellectual property” is the phrase now used to denote ownership of art and ideas, but what exactly does it mean? Does it make sense, to begin with, to say that “intellect” is the source of the “properties” in question? A novel like Ulysses, the know-how for making antiviral drugs, Martin Luther King, Jr’s “Dream” speech, the poems of Rimbaud, Andy Warhol screen prints, Mississippi Delta blues, the source code for electronic voting machines: who could name the range of human powers and historical conditions that attends such creations? All that we make and do is shaped by the communities and traditions that contain us, not to mention by money, power, politics, and luck. And even should the artist or scientist think she has extracted herself from the world to stand alone in the studio, a tremendous array of faculties and mind- states may well attend her creativity.

There is intellect, of course, but also imagination, intuition, sagacity, persistence, prudence, fantasy, lust, humor, sympathy, serendipity, will, prayer, grief, courage, visual acuity, ambition, guesswork, mother wit, memory, delight, vitality, venality, kindness, generosity, fortitude, fear, awe, compassion, surrender, sincerity, humility, and the ability to integrate diametrically opposed states of mind into harmonious wholes . . . We would need quite a few new categories to fully map this territory — “dream property,” “courage property,” “grief property” — and even if we had that list, only half the problem would have been addressed.

Do you want a great lawyer? You can have one even if he cuts-and-pastes the work of other lawyers into his work. But please — don’t believe for a second that means that lawyering can be reduced to cutting-and-pasting. Lawyering requires as much creativity as any endeavor on earth — if I didn’t believe that why would I write a blog devoted to law and creativity? And creativity is infinitely more complex a matter than tracking down the bits and pieces that make up the creative work. It requires the imagination necessary to find those bits and pieces, the vision to understand how to select and fit them together to due the present job, the skill borne of years of work to write in the stuff that can’t be found anywhere else and without which those bits and pieces would be just a bunch of crude boilerplate that doesn’t fit well into any specific situation at all, the passion and energy necessary to do the work to bring all this stuff together, the courage to stick to one’s vision even as one’s adversary is insisting you’re wrong, the delight without which the strength to do all of these difficult things would be impossible to muster, the generosity of spirit that can identify a client’s problems as your own, and a million other things.

So don’t you dare suggest that taking some language that is useful for doing the job that needs to be done from another lawyer is evidence lawyering is like putting together tinker toys.

Words and Ideas as Common Property: Lewis Hyde, Stanley Fish and lawyers as “plagiarists”

In yesterday’s New York Times, Robert Darnton reviewed Lewis Hyde’s newly published Common as Air: Revolution, Art, and Ownership, describing it as “an eloquent and erudite plea for protecting our cultural patrimony from appropriation by commercial interests.” As Darnton explains, “Hyde invokes the [founding fathers] in order to warn us against a new enclosure movement, one that would fence off large sectors of the public domain — in science, the arts, literature, and the entire world of knowledge — in order to exploit monopolies.” Acknowledging that Hyde’s historical approach might seem a “dubious” way of “defending the cultural commons” and that in other hands it could amount to nothing more than picking and choosing among “a stockpile of quotable chunks of wisdom,” Darnton finds the book compelling:

[Hyde] does not merely cull the works of the founding fathers for quotations. He pitches his argument at a level where historians and political philosophers have contributed most to our understanding of intellectual history. Instead of treating the ideas of the founders as self-contained units of meaning, he explores their interconnections and shows how they shared a common conceptual frame. Not that he pretends to have uncovered anything unknown to the authorities he cites, notably the historian J. G. A. Pocock, whose studies of civic republicanism reveal how early modern philosophers drew on a current of thought about the nature of citizenship that goes back to ancient Greece and Rome. Hyde builds his argument by telling stories, and he tells them well. His book brims with vignettes, which may be familiar but complement one other in ways that produce original insights.

It is one of the genuine highlights of my professional career that Hyde draws on an article I’ve written. Hyde’s scope is wide, and he explores in depth the practices of many different “communities” — including, among others, the world of scientific research and the programmers that collectively created the World Wide Web — to show that treating knowledge and invention as a commons is both widespread and productive. One such community is the legal profession, which might seem odd in that the widely held understanding that your intellectual product is as much your property as is your house is such a legalistic conception:

Many . . . communities of practice have common holdings made durable and lively through normative rather than legal stints.

One of these may be found, oddly enough, in the legal community itself, where, as in some scientific circles, collective tasks get done and “collective beings” come to life through the agreed-upon non-ownership of creative labors. The fact is that in legal circles when judges issue opinions they often “plagiarize” from the briefs presented by contending parties. To take but one example, in 1937 Supreme Court Justice Benjamin Cardozo lifted, without attribution, verbatim sections of the Roosevelt administration’s brief in his decision upholding the Social Security system. Of course, “plagiarism” is the wrong term here, for legal writing does not come from the kind of author to whom credit is due. Legal writing is mostly collaborative, for one thing, produced by writing communities. In addition, legal opinions are public documents, belonging to no one because they belong to all of us. Nobody has ever successfully claimed copyright infringement for the unauthorized use of someone else’s legal argument. In fact, legal writers want to have their work appropriated. Peter Friedman, a lawyer whose analysis I’m drawing on here, has written: “I knew I had written the best brief I possibly could on a motion when the court’s opinion announcing its decision was directly cut-and-pasted from my brief.”

If lawyers were the kind of authors who claimed a property in their work, they would potentially deprive both the work and themselves of their public roles. As with eighteenth-century pamphleteers, or with the creators of the World Wide Web, self-erasure attends a lawyer’s entry into the public sphere, not self-assertion. The law is collective; it belongs to all citizens, and consequently we ask that its practitioners present themselves as public persons with copyduties rather than copyrights. In this context, to sample someone else’s brief is a favor, not a theft; it helps a lawyer be a lawyer. Common ownership makes that species of public life possible. (Common as Air at 248-249.)

Interestingly enough, this passage has some bearing on an exchange I had recently with the incredibly accomplished lawyer and blogger Scott Greenfield. Greenfield wrote a blog post criticizing a piece Stanley Fish wrote in the New York Times that argued that plagiarism as an offense is not a moral wrong, but, rather, the product of particular rules against the use in particular contexts of others’ words and ideas without attribution. [Fish wrote a second piece on the topic, responding to critics of the first piece, here.] The necessary corollary of Fish’s point is that in other contexts the use of others’ words and ideas without attribution is perfectly acceptable. Greenfield’s disagreement with Fish focused on Fish’s assertion that “lawyers and judges in fact do [appropriate words and ideas without attribution] all the time without the benefit or hindrance of any metaphysical rap.” Greenfield wrote, “No, Stanley, I will not turn the other cheek, no matter how much I love the platitude about reinventing the wheel.”

I tried to explain in the comments to Greenfield’s post where I thought he had missed Fish’s point (which is very much related to Hyde’s). I will try to do so more clearly here inasmuch as he and I seemed to speak past one another in that particular exchange.

In law school, plagiarism is the use of the words or ideas of others without attribution. It is a grave offense that can lead to harsh discipline and even might threaten the student’s ability to someday be certified to practice law. Strict compliance with the need to attribute words and ideas drawn from others is deemed necessary because the point of the academic process is to teach the students to put together and convey ideas clearly and to assess their capacity to do so. Thus, using words or ideas of others without attribution is tantamount to fraud — the reader of those words and the ideas they convey is misled into believing they are the product of the student’s intellectual processes alone, and the reader conducts an activity central to the academic process — grading those words — in reliance on that belief. If I were to read Scott Greenfield’s words under the mistaken belief they were the words of a student whose paper I was grading, I would give him a much better grade than he would earn if I knew he were just quoting Greenfield.

In legal practice, however, it is only the quality of the words that matter. Whether contract language originated with the lawyer who drafted the contract or a paragraph in a brief explaining a line of authority relevant to the brief’s argument was cut-and-pasted from a brief the lawyer who submitted the brief found online doesn’t matter. What matters is the effect of the words themselves. And, in fact, lawyers almost always begin drafting contracts by cannibalizing other contracts and forms. Yet they never cite to or otherwise acknowledge those sources. There is no reason for them to do so. And, as the passage from Hyde above makes clear, judges cut-and-paste from lawyers’ briefs. In fact, the entire arena of legal writing in practice is rife with unacknowledged borrowing.

And of course it’s no sin. That’s the point. Which Greenfield acknowledges without realizing it’s the point when he writes that a judge who appropriates the words from a lawyer’s brief is accepting a “gift,” not engaging in plagiarism:

As for judges taking language out of my brief, that’s not plagiarizing, but the purpose of a legal brief, to provide the court with the language to use in his decision. That’s exactly what I’ve written it for, as my “gift” to the judge to use in deciding the case. Again, entirely different from plagiarizing.

But that precisely is Fish’s point. Appropriation without attribution isn’t the moral equivalent of the theft of private property. It’s wrong in some contexts and not in others. So in some contexts it is defined as plagiarism and in others to call it “plagiarism” is to misspeak.

Greenfield’s other retort to Fish also reflects his misunderstanding of the point. Greenfield states that lawyers do provide attribution to the words and ideas for others. That’s what the whole obsession with citation is about:

[W]e do not lift language without attribution. Indeed, that’s what all those silly case names and the “358 U.S. 973″ stuff is all about. It’s the lawyers’ way of attributing, Stanley. It’s called a citation, and it’s our regime. What you do not see at the end of a court decision is the copyright and command that it not be used without permission. Use of court decisions is not merely anticipated, but required in most circumstances. That’s the peculiar way law works.

But the attribution provided by citation in legal briefs and opinions does not serve the same purpose as does attribution to a student’s sources. Lawyer’s don’t provide citations to the authorities they quote and rely on because their failure to do so would result in prosecution for a moral offense. Instead, lawyers provide citations because the citations signal the identity of sources for words, actions, and ideas that have persuasive weight because of who those sources are.

In other words, if I lifted language verbatim from a court decision without quotation marks or citation in a brief I wrote to a court I would suffer no harm. You might object that this possibility is a mere hypothetical, but you would be wrong. If an argument — and even precise words — come from a court that has no controlling weight in the court to whom I am submitting the brief and I have no reason to believe the identity of the court would lend any genuine persuasive weight to the argument, I would be remiss if I did provide the citation. The citation itself would raise a question in the mind of the judge to whom I was submitting the brief — why should I care about this court’s words, ideas, or actions? — that would distract from the persuasive effect of the argument itself.

And, indeed, as a general matter as a lawyer there is little reason to cite to law review articles unless there is reason to believe the author of the article is someone who carries genuine persuasive weight. A judge’s reaction otherwise is likely to be along the lines of this: “A law review article can pretty much assert anything that can win the approval of a student editor. Why should I assume it has any authority merely because it’s published in a law review?”

Would the article’s author have any claim against a lawyer who lifted words or ideas from his article and used them in a brief without attribution? I cannot believe so, nor am I aware of any standard or rule the lawyer would be violating.

And in contract and instrument drafting, of course, lawyers don’t even provide citation for the sources of their words.

I think it is important in understanding what Fish was writing about to understand these different functions of citation. On the one hand, there’s citation to validate the relationship between the words and ideas and the author’s identity. On the other, there’s citation to signal that particular words and ideas come from a source that must be reckoned with by the reader. They are two entirely different functions, and in legal practice the latter is the one that matters. The former does not. And so you have never seen a lawyer suffer any adverse consequences for plagiarizing.

But if any of my legal writing students are reading this, be on guard! Students must provide attribution to the words and ideas they appropriate from others.

Creative Commons licensing is a simple and straightforward application of traditional legal concepts, but the perception it is something more and even radical is partly the fault of Creative Commons.

Much has been written about the absurdity of ASCAP’s fundraising letter that claims that Creative Commons, among others,  is “mobilizing to promote ‘Copyleft’ in order to undermine our ‘Copyright’ and that “[i]f their views are allowed to gain strength, music creators will find it harder and harder to make a living as traditional media shifts to online and wireless services. We all know what will happen next: the music will dry up, and the ultimate loser will be the music consumer.”

As Drew Wilson explains, this description of Creative Commons is ridiculous. And it is. But let me explain why I think in part Creative Commons has made the perception of what it does murkier than need be.

Last year I spent a day at the invitation of a professor at Wooster College lecturing on and discussing copyright with a number of his students. The students were terrific — bright, imaginative, and enthusiastic. At the end of the day we had a two hour, informal discussion section, and finally they were able to pin me down to explain what a few throughout the day had wanted me to explain: what is Creative Commons all about? I hadn’t responded to the question earlier because we had so much to cover in a very limited amount of time and it just didn’t seem like that big of a deal or that complicated to me. But I realized the simplicity of a Creative Commons license had escaped them.

All a Creative Commons does is provide suggested language to anyone who creates copyrighted content that will alert those who use the content whether and under what conditions the creator will allow those users to re-use the content without worry of copyright infringement. If I were to post on my blog that anyone may use any or all of my writing for any purpose provided that in doing so they credit me, make clear what words are mine, and provide hyper-links back to the posts they are using, I would not thereafter be able to sue anyone for copyright infringement who had complied with my conditions. By posting those instructions, I would have made an offer that use under those conditions was permissible. The use by someone of the material in compliance with those conditions would be an acceptance of the offer that would create a binding contract. That contract would bind me to my promise not to consider that use an infringement.

It’s no more complicated than that. Creative Commons provides here a menu of restrictions you might want to put on the use of your creation and the language that will enforce your promise not to consider use that complies with those restrictions.

But somehow the whole enterprise has been perceived to be something much more profound. First there’s the name — Creative Commons — which in the current political environment evokes misbegotten fears of “socialism” and even “communism” that naturally enough feed rhetoric that accuses comrades of the “CopyLeft” of stealing artists’ precious “Property.”

Good god, we’re just talking contract language that copyright holders can use to make explicit to consumers the extent those consumers can feel comfortable re-using the copyrighted works in ways they are certain are consistent with the copyright holders’ desires. This has nothing to do with a “commons” except in that any published, copyrighted work is part of what some people call our “intellectual commons.”

One should also note that even if someone includes with their work a Creative Commons license (or language they draft themselves) that states that re-use under certain conditions will not be considered an infringement, that does not mean that such a re-use would necessarily be an infringement in the absence of that language. Some stuff I post is not original enough to be subject to copyright. Some stuff I post can be re-used in ways that constitute fair use. Just because I’ve told you that you’re free to re-use my stuff as long as you give me credit and a hyper-link doesn’t mean, in other words, that if you don’t give me credit or a hyper-link you’ve infringed my copyright. That would depend on copyright law. But if you did follow my instructions, your worries would be over.

Unfortunately, too, even many of the efforts to provide straightforward explanations of what a Creative Commons “license” is founder on the shoals of legalese. “License” itself is a term most non-lawyers cannot easily grasp. And to jump immediately into screaming that an attack on Creative Commons is an attack on “artistic freedom”  – as Drew Wilson does in the post I link to and praise above — is to descend into rhetoric of war, of right versus left, of freedom versus tyranny, of property versus availability. We shouldn’t need to go there.

Creative Commons licensing is simple, straightforward application of traditional legal concepts. That’s all. Can we please move on now?

Slow reading: one piece in a good reader’s arsenal.

I sometimes read very slowly, and sometimes very quickly. It may be that attention spans are shrinking. I often have a difficult time getting my students to simply stop and think about what they’ve read. And so I’m all on board with the “slow reading” movement:

“The idea is not to read everything as slowly as possible, however. As with the slow food movement, the goal is a closer connection between readers and their information, said John Miedema, whose 2009 book Slow Reading explores the movement.

“‘It’s not just about students reading as slowly as possible,’ he said. ‘To me, slow reading is about bringing more of the person to bear on the book.’”

Even my 17 year old son makes fun of how slowly I read the many novels and history books I’m always trudging through, but, as I tell him, I tend to remember almost everything I read in those books. And as I research, I come across articles and books I move very slowly through, trying to make sense of every last word. It drives me particularly crazy when I ask my students what a new legal word means and none of them know. How can they read law — something they’re trying to learn — without a dictionary and without the effort to understand what it is they’re reading?

But sometimes I have to read quickly too. If you research a difficult legal question, you’ll often have to read, literally, hundreds of cases. You don’t engage in “slow reading” to find your way through hundreds of cases to the handful that merit serious study and will genuinely help answer the question you’re researching.

So, slow reading is good. So is fast reading, skimming. What makes a truly good reader is doing both and deploying them effectively.

Just say it!

It is a truth often assumed that a lawyer in need of an argument must arm herself with rules stated in legalese. There could be few more difficult assumptions to overcome in educating new lawyers.

One of my more profound light bulb moments as a young lawyer came a few months into my first job, after I’d written the first draft of a brief for a partner. After he’d had a chance to review the draft he called me into his office to discuss it. I entered, carrying, of course, the draft that by this time I’d virtually memorized. He asked me why I thought we’d win. I glanced at the draft and he said, “No. Put it down. I want you to tell me in your own words, in plain English, without telling me what the cases say.” So I slowly sputtered out a brief explanation in plain English, thinking that this was going to be painstaking, that the simple plain English explanation would be followed with a discussion of each case and the reasoning of each judge in each case, and then we’d have to cobble all these pieces together . . .

In response to my plain English explanation, he said, “Then why didn’t you just say that?” I blinked, and asked in stupid amazement, “I can do that?” He laughed, and answered, “That’s exactly what you are supposed to do.” Wow, just explain in plain English, without resort to legalistic rules and long chains of reasoning from premises established by Lord Blackstone? What an amazing idea, and what a truly difficult one to grasp.

I was reminded of this today when I read the post at Lawyerist.com entitled “Improve Your Legal Writing: Just Say It“:

Say what you want to say. Do not imply it, do not hint at it, just say it. This can be difficult at times, but it will improve your writing, and make your arguments more persuasive.

Losing $500 million was a legal win: outcomes and predictions from a lawyer’s point-of-view

In case you haven’t read it already, there’s a new study that purports to establish that lawyers consistently overestimate the chances of success in their cases (pdf). David Post of the Volokh Conspiracy takes the study and applies the typical academic condescension to practitioners: “I’m constantly amazed, given the obvious fact that half of all litigants are holding losing hands, at how easily most lawyers can persuade themselves of the rightness of their client’s cause.”

Jeff Gamso, a criminal defense attorney (and former English professor!) in Toledo, Ohio who writes a terrific blog, Gamso for the Defense, takes a much more nuanced approach to the study in his post, “Blessed are the Oddsmakers.” First, it’s important to note the difference between criminal defense and civil litigation. As Gamso reminds his readers, in his practice, “[m]ost trials result in guilty verdicts. But most cases aren’t tried; they’re resolved by pleas of one sort or another.” It reminds me of what a friend of mine, a public defender, once told my class in response to the question “what’s the hardest part of your job?” He answered, “Losing 95% of my cases.”

But Gamso reminds us that pleas, the criminal analog to a civil settlement, is a strategic move made with the best possible` estimation of likelihood of success at trial, an estimation by no means easy to make:

The idea of the plea is that it’s a compromise because trials are problematic. They’re a lot of work and they are, ultimately, uncertain. Anyone who’s been at this for a while can tell you that juries and judges sometimes surprise. We win (whatver that means) some cases we should lose. We lose (whatever that means) some cases we should win. The jury, the judge, the world sometimes just gets it wrong.

Accordingly, the decision to accept an offer from the other side is a complicated combination of prediction of an uncertain future, the ability to convey the relevant information to the client, the other side’s own predictions and resulting offer (if any), the client’s own inclinations and decision (it is his decision), and the adversary’s response to the client’s decision.

Perhaps most importantly, however, it’s fundamental to any effective legal representation to understand that lawsuits and prosecutions are not binary, win/loss situations. Overcoming binary thinking is, in fact, one of the most important and difficult tasks in teaching first year law students. It’s difficult enough to get students to understand that the outcome of a case is the only thing that matters to a client, but then also to get them to realize that the result is usually a whole lot more complicated matter than merely stating that the plaintiff or defendant won or lost. (And it’s a shame that Remedies is one of the most neglected courses in law schools these days.) Let’s get this straight: Exxon won the litigation which resulted in it paying over $500 million in punitive damages. Or, as Gamso so pungently puts it in connection with criminal defense:

[David] Dow tells of Van Orman, an innocent man on death row. He simply didn’t commit the crime. He’s also got mental retardation. Dow proves the retardation and gets him off the row. Now the innocent man will do life in prison. “But I’m a death-penalty lawyer and Van Orman won’t get executed, so I count it as a victory. One of my clients committed suicide a week before his execution. That’s a victory. Another died of AIDS. A victory.”

You bet. I had a client who died of hepatitis right after I filed the papers asking the U.S. Supreme Court to hear the case. He died before the state had a chance to reply, certainly before the Court ruled. That goes down as a win. That’s how it works when you’re doing death penalty defense. Whenever the government doesn’t murder your client, you’ve got a win.

All of which is a way of saying that in this business, winning often isn’t an all-or-nothing proposition. Confession suppressed? Win. Even if the drugs aren’t suppressed? Yep. Just not a complete win.

•Get some of the charges dismissed? Win. Even if the client’s found guilty of some things? Yep. Just not a complete win.

•Get a five year sentence? Win if the client might have gotten 8. Or 50.

•LWOP? Win if the alternative was death.

•Continuance? Hung jury? Wins. Even if they’re only temporary. (The old line is that a continuance is as good as an acquittal – it just doesn’t last as long.)

•Client goes home after a not guilty verdict? Big Win.

And on it goes.

The key isn’t that what counts as a win depends. The key is that you need to have a sense of things. (emphasis added)

Yes, the key is to have a sense of things. A win is getting the best outcome the circumstances permit you to get for a client. Do human beings tend to be overconfident in their predictions? Cognitive science establishes that does indeed seem to be the case, and as a lawyer you ought to be aware of it, and you ought to be aware that your adversary shares the same bias, and you ought to be aware of the risks associated with going to trial, and you ought to be aware of your client’s fears and desires and his ability to deal with risk and loss. You need to have a sense of an infinite number of things, and the better your sense of these things is and the better you are at communicating them to your client, the better you will be as a lawyer and the better the outcomes you will produce. Will you be able to tally those outcomes as wins and losses? Only if you have a very flexible understanding of what constitutes a win or a loss.

Stanford Law School recognizes law is a creative enterprise.

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

Law and Creativity: Fiction and Nonfiction

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

There may after all be useful methods to develop effective analogies to help guide your legal research!

I did at least acknowledge in Friday’s post about the difficulties of research that my words originated at an hour when I felt at “rock bottom.” The essence of my “advice” was not terribly helpful as an educational matter except perhaps in emphasizing to students the enormity of the task and the difficulty of the work they are taking on when they do legal research. I wrote:

Research that is genuine research not only requires Sisyphean patience in combing through the sources, it requires also consideration, observation, and study of what one finds within those sources so that one can, first, identify the elements that matter, and, second, put those important, buried, and isolated elements together in some useful and novel way.

But in emphasizing the difficulty and artistic aspects of legal research (beliefs I do not hereby recant), I entirely ignored the perfectly legitimate question asked by one professor on behalf of her students: are there any methods that are helpful in developing the analogies that are so central to legal argument?

So I did what I should have done in the first place if I were going to speak with any authority on research — I did some research, and, in fact, I found that there may be methods that can help students develop meaningful and useful analogies they can subsequently use to guide their research with increased effectiveness. See, e.g., I. Blanchett & K. Dunbar, How Analogies are Generated: the Role of Structural and Superficial Similarity, Memory & Cognition 2000, 29, 730-735 (pdf) and sources cited therein.

One can, of course, make a lists of items and ask students which ones belongs and which one doesn’t. You might list, for example, Oprah Winfrey, Orin Hatch, Hilary Clinton, and Olympia Snowe. In doing so, the students could recognize that the group of 4 could be classified according to a number of different criteria, and each criterion would exclude a person the other criteria would not. There are 3 women. There are 3 politicians. There are 3 people whose first names begin with the letter O.

This type of exercise does help students recognize that analogies are based on the similarities between different situations, and that of course is a necessary first step in teaching argument based on analogy.

The problem with this type of exercise, however, is that experiments show that it leads subjects to focus on surface similarities between the situations they are comparing rather than on underlying structural similarities. Blanchett & Dunbar at 3. In contrast, however, research shows that the analogies people use to solve real world problems “tend to be based on deep structural features rather than superficial features.” Id. at 4.

Fortunately, however, there are studies supporting at least one method of increasing the ability of subjects to identify situations that share deep structural similarities and, therefore, provide more meaningful analogies and more effective problem solving. Simply put, the subjects are split into 2 groups and are presented with a problem, associated issues, and 2 opposing approaches to solving the problem. One group is asked to generate analogies supporting one group, and the other to generate analogies supporting the opposition.  In one experiment, for example, subjects were presented with the question of whether Canada should run a public deficit or instead balance its national budget. One group was asked to generate analogies that would be helpful to a group arguing for a balanced budget, while the other was asked to identify analogies helpful to a group supporting deficit spending. Id. at 5.

The results showed that the analogies developed by the groups were not very influenced by superficial similarities, that the groups generated a wide variety of analogies, and that they drew those deep-structure analogies from domains not typically associated with the target problem. Thus, instead of focusing on matters typically associated with debates over national budgets — economics, politics, and personal finance (if I can balance my checkbook, why can’t the government?!) — the analogies were  drawn “from domains as varied as natural resources, eating, illness, and domestic tasks.” Id. at 9. Further studies have shown similar results and have suggested that individuals generating analogies alone are more effective than groups at finding deep structural similarities in situations that are not superficially similar. Id. at 13.

So here may be a useful tip for a student trying to find analogies to legal problems he or she is trying to develop arguments about:

Sit down alone, without resort to any sources other than your own imagination, and try to think of as many situations that are similar to the problem or issue you are addressing in ways that support the position you are taking on the issue. Don’t feel constrained by case law you may have happened to have read or what you feel lawyers are supposed to do. Use your imagination, and draw on whatever  you can. You’ll end up with a number of analogies. Then you can go to secondary sources, identify cases that involve those types of situations, and perhaps in those cases you’ll find arguments and analogies useful in the case you are trying to solve. You might even find very good ones no one has considered before. Lawyers do that all the time.

Research only begins with information: patience, insight, and imagination are the most important parts of it.

Suffering from one of my occasional bouts with insomnia the other night, I came upon a message on the legal writing professors’ listserv from a professor who was seeking advice from students who were wondering what tricks or tools they might use to find the analogies and legal arguments that they were finding so difficult to discover in the course of their legal research. No doubt the hour contributed to the poor quality of my response. In her poem “4 a.m.,” Wislawa Szymborska writes that “No one feels fine at four a.m.” But the passionate rage I felt at the belief that there are simple tips and tricks to effective research of any sort was not purely the product of the feeling Szymborska describes as “Hollow. Vain./Rock bottom of all the other hours.”

We have a serious misunderstanding these days about what constitutes research.

According to the Oxford English Dictionary, research is the

Systematic investigation or inquiry aimed at contributing to knowledge of a theory, topic, etc., by careful consideration, observation, or study of a subject.

Let’s assume that the inquiry is into a legal topic. The first element of research is a “systematic investigation or inquiry.” I suppose location of a database or the use of a particular search algorithm could be considered one sort of a systematic investigation, but to suppose that the notion of systematic investigation is exhausted by the location of sources is nonsensical. I can point students to particular treatises I personally find of great value in certain subjects, and of course legal research is filled with secondary sources and finding tools that fill virtually any style one might find useful in such sources. And we live in the age of databases — there are databases for everything.

But systematic investigation is barely begun, if even begun at all, by merely finding a source or set of sources in which answers might lie. The real art of research lies in the second part of that definition of the term: “careful consideration, observation, or study.”

The answers to difficult legal questions don’t lie around waiting to be found as if they are treasure chests left lying on forest floors. They are constructed and created by elements buried within our universe of databases. Thus, research that is genuine research not only requires Sisyphean patience in combing through the sources, it requires also consideration, observation, and study of what one finds within those sources so that one can, first, identify the elements that matter, and, second, put those important, buried, and isolated elements together in some useful and novel way.

Perhaps more importantly, the identification of the elements that matter cannot be done without simultaneously developing ways of putting those elements together in some useful and novel way. How can you know what matters without knowing what purpose you are putting it to? And how can you decide what purpose you are trying to accomplish if you don’t know what elements you’ll have to use?

In short, research, analysis, and theorizing are all a single activity — finding things, making sure they are the right things, and putting them together in the right ways.

To suggest otherwise would be to suggest that finding the historical sources concerning the U.S. Civil War that James McPherson used in writing his brilliant history of that conflict was virtually all the work that had to be done to produce the book. After all, once one has found the sources, the writing is just a matter of stringing the information in those sources together, right?

Of course not. One must find the sources, of course. But the research is inseparable from the perspicacious mind that finds within those sources the elements that the creative and original mind then can mold into a work that educates, entertains, moves, and even convinces.

There is no such thing as research apart from insight and imagination. And an enormous amount of work.

And so, in perhaps the most coherent part of my e-mail the other night, I wrote:

Research is about drawing connections between ideas and words from wildly disparate sources, connections that can only be found by means of painstakingly patient reading of one source after another, tracing connections between sources that might be as seemingly trivial as the bare citation in one case to a another case in connection with a discussion in the first case that strikes the attentive and imaginative reader as potentially relevant to the legal issue he or she is researching. Obviously, tracing such connections (and the myriad of similarly subtle connections effective researchers exploit) requires an enormous amount of concentration, and enormous amount of patience with the continual following up of leads that go nowhere, an enormous amount of imagination to spot connections that courts don’t make explicit (and often don’t even recognize the true significance of), and an abandonment of the idea that engaging in research in this manner is to neglect (in some Luddite fashion) “tools” that can do the job so much more quickly and effectively.

Research is painstaking work that requires enormous imagination and is inextricably intertwined with and develops simultaneously with the development of the legal analysis the research is intended to support. (Which is one reason I go ballistic anytime someone suggests librarians rather than legal writing professors should be teaching research to first year law students, as if legal research is simply a matter of knowing sources and databases and how to develop effective word searches rather than being part and parcel of the writing and analysis.)

I’ve always told my students that law is as requires as much creativity and originality as any human endeavor. I mean it.

One last point: I don’t think Google is making us stupid. Yes, there is more information available to us than ever before. But, again, we can’t confuse information with research. Research is inquiry that contributes to knowledge. Information may be a sine qua non of research, but without attention, insight, and imagination, it isn’t research at all.

Law isn’t about what’s legal and illegal; it’s about serving clients.

Law students, too many lawyers, and most non-lawyers think that lawyers tell clients what they can do and what they can’t — what’s “legal” and what’s not. This caricature is so far from the truth it’s laughable. Lawyers serve clients, and there is so, so much more that drives client decision making than what the law states (except, perhaps, in those exceedingly rare instances when the law mandates a certain decision).

So it’s refreshing that Settlement Perspectives reviews the kinds of questions clients want to hear from their lawyers but don’t hear often enough. Perhaps the most important one is this:

What is an acceptable outcome in this matter?

The article goes on to list a number of other questions of particular import to clients, including this one, perhaps most immediately comprehensible to my first year students:

In the case of a litigated matter, on the continuum between winning and losing, what is considered acceptable? Is there a possibility for success short of complete victory? Prevailing without success? Not prevailing but not losing?

(Hat tip to What about Clients?)

The South Butt Answer to the North Face

For a brilliant combination of technical perfection, persuasion, and humor of a sort I’ve never before seen in an answer to a complaint, you’ve got to see the answer filed by South Butt to the complaint filed by North Face alleging that South Butt’s name and its slogan, “Never Stop Relaxing,” infringe North Face’s trademarks in its name and its own slogan, “Never Stop Exploring.” I will be forever grateful to techdirt for bringing this document to my attention.
The South Butt Answer to the North Face

True innovation in health care: no-fault insurance for bad medical outcomes.

We would make genuine and profound progress in “fixing” our health care system if we replaced the existing malpractice system with (1) no-fault insurance to compensate patients for the long-term medical and personal costs of bad medical outcomes and (2) an effective mechanism by which the medical profession policed the quality of the care provided by its members.

One political war that never seems to wane is over the medical malpractice system. On the one hand there are the doctors, the insurance companies, and right-wingers screaming that it is medical malpractice that is bankrupting us; on the other, there are the malpractice lawyers and the rest of us who want protection against the risk of suffering unexpectedly from medical treatment.

The critique of the malpractice system has a lot of validity — it’s a lottery in which those patients who have gone to the trouble of hiring lawyers under circumstances smelling sufficiently of medical negligence make out well and the rest of those injured by bad medical outcomes are left with nothing. As a result, too, doctors practice defensive medicine, driving up medical costs for all of us.

But that’s not the entire story. Our health insurance system is a failure, and patients who suffer bad medical outcomes often won’t have coverage sufficient to provide them the care required by the bad outcomes. The only alternative is to sue for malpractice, but the premise of malpractice is that there is no recovery unless the patient is able to prove the doctor was negligent.

Is it any wonder, then, that in a close case, given the choice between, on the one hand, compensating a badly injured patient from with money provided by an insurance company and, on the other, declaring the doctor to be without fault, a jury of human beings will tend to do the merciful thing and find the doctor acted negligently?

Doctors, of course, hate that question. They look at malpractice cases as judgments on their talents, not as tests of mercy. A jury that finds a doctor liable for malpractice has, in the doctor’s eyes, found the doctor to be a bad doctor. To the doctor on trial, The patient’s injuries –as opposed to the doctor’s efforts — are irrelevant.

The dilemma is obvious. First, bad medical outcomes are inevitable regardless of the adequacy of care. As a result, bad medical outcomes are risks we all face. Second, our existing insurance scheme does not spread this risk — rather, those who suffer bad medical outcomes and are not compensated by the malpractice system themselves bear all the costs of that risk.

Wouldn’t we be better off if everyone who suffered a bad medical outcome was compensated for the costs that arose out of that bad medical outcome regardless of the quality of the medical care? No one would be over-compensated, everyone would be fairly compensated, and the abilities of doctors wouldn’t be judged by juries of lay people who are motivated to disregard good judgment regarding those abilities by an entirely understandable and praiseworthy sense of human sympathy.

Such a scheme does raise one problem that the critics of the malpractice system also ignore — we really do enjoy a remarkably high standard of care in this country precisely because of the malpractice system. Doctors have never gone to the trouble of instituting an effective means of policing the quality of medical practice. To some degree they haven’t needed to do so because the risks posed by the malpractice system have forced insurance companies to take on that role. To replace the malpractice system with a no-fault insurance system, therefore, would require some genuine quality control imposed by the medical profession itself.

But if we simply gut the malpractice system and ignore the costs of bad medical outcomes and the need for some genuinely effective means of quality control, we would instead have the worst of all worlds.

What is a Judicial Author?

I have posted on SSRN a copy of an article entitled “What is a Judicial Author?” I presented several years ago at a conference. I have learned to my utmost gratitude that Lewis Hyde will be quoting and citing the article in his forthcoming, much-anticipated book on the cultural commons. As the article’s abstract explains:

This paper, originally presented in draft at the Con/Texts of Invention Conference sponsored by the Society for Critical Exchange, examines the ways in which judges write opinions, the ways experienced and inexperienced legal readers conceptualize judges as authors, and the affect these conceptions have on the way they read those opinions. The paper describes judicial writing as a quintessential example of collaborative writing, a view corroborated by the ways experienced lawyers use and interpret judicial opinions in practice. The judicial opinion is not, as lay opinion grounded in the Romantic view that forms contemporary common wisdom would have it, the original work of the wise and creative judge pronouncing from on high. Rather, the opinion itself is a piece cobbled together from a number of other sources that include established law, the lawyers’ written and spoken legal arguments, secondary legal sources, and earlier opinions that were themselves built up from the bits and pieces floating through the legal discourse community. Nevertheless, conventional legal thinking has since at least the 19 th Century through today propounded the notion of the judge as quintessentially Romantic author-creator. This clash between legal practice and the conventions of legal (and especially academic) discourse poses real and neglected problems in legal education, especially in the ways the Romantic view of judicial authorship instills in students habits of reading.