Trying Proposition 8 as teachable moment

Margaret Talbot notes that a trial can be a terrific method of educating the public on controversial issues. In particular, she focuses on Perry v. Schwarzenegger, the case in which the constitutionality of California’s Proposition 8, overturning the state’s gay marriage law, is being challenged. Talbot has been blogging about the trial throughout the 3 weeks it has been going on. Her latest post points out that trials, in subjecting witnesses to cross examination, permits scrutiny of controversial views that other forums don’t ever provide. As David Boies puts it “The crucible of cross examination forces the witness to confront the other side; they can’t fall back on bumper sticker slogans like ‘marriage is between a man and a woman.’ ”

Talbot compares the educational value of Perry to that of the trial in Kitzmiller v. Dover Area School District, the successful legal challenge against a public school district’s requirement that “intelligent design” be taught as an alternative to evolution as an explanation of the origin of life:

In many ways [the trial in Perry] reminded me of another culture-war trial that I covered, in 2005, one that presented a similar opportunity for intellectually engaging with the arguments and research that usually remain submerged beneath a politicized controversy. That trial was to decide whether intelligent design could be part of the curriculum in a Pennsylvania school district, and its expert testimony covered everything from the fossil record of obscure dinosaurs to Darwin’s own religious beliefs to the theoretical underpinnings of the separation of church and state.

It really is unfortunate the Supreme Court ruled that Perry could not be broadcast via the internet. I very much would like to have seen a witness explain exactly how it is that gay marriage undermines straight marriage. I’ve genuinely tried to understand the argument from some very intelligent people who think that gay marriage does indeed undermine straight marriage, but, I’ll confess, my mind has been unable to get itself around the argument.

If a corporation is a person, why is an animal no more than a chair?

In light of the decision by the Supreme Court the other day in Citizens United regarding the rights of corporations to make campaign contributions without restriction, I felt compelled to republish a post from early last year:

Stephen M. Wise discusses the ways society shapes the development of the law in connection with the rising awareness that animals are not merely “things”:

Is it up to society to force a change in the law? Or will the law change society?

The law both leads and follows society. The legal system changes through the decision of judges or by legislatures enacting statutes. You saw this, for example, in the anti-slavery amendments to the U.S. Constitution in the 19th century and the numerous civil rights statutes of the 20th century. But the way the law changes and the way society changes are connected. People who try to change the law also depend upon changes in societal values, as well as upon scientific discoveries. In recognition of this, Rattling the Cage is crammed with reports about scientific discoveries on the nature of the cognition of chimpanzees and bonobos of the last 20 or 30 years. These discoveries form the springboard from which I can argue for their rights and personhood.

How do you think our view of animals will develop in the next 20 years?

It is going to develop in a complex way. First, a hierarchy of nonhuman animals will continue. Though nonhuman animals are considered legal things today, society does not view all nonhuman animals in the same way. Some we clearly value more than others. Even though chimpanzees don’t have any legal rights, we no longer euthanize them after they are no longer useful in medical experiments, as we do, say, to white mice. This fact both results from and drives the coming legal personhood of Great Apes. We’re beginning to see this not only in the U.S., but throughout the West. Westerners are also increasingly valuing their companion animals and I see increasing protection for them. The animals whom we thoughtlessly consume for food are being subjected to worse and worse conditions in the U.S. But an opposite trend is rising in [parts of] Europe. I think we will see the European trend expand even as factory farming in the U.S. increases. However, within the next 10 years, the American factory farming industry is going to learn how it has greatly overstepped and miscalculated just how much abuse of nonhuman animals used for food people are willing to accept. Stir in the environmental degradation that is its inevitable consort and there is going to be a backlash that will drive factory farming in the U.S. in the direction that Europe has taken and will, perhaps, drive at least some of it out of business.

Here’s legal innovation: YouTube Broadcast of the Proposition 8 Trial. But will it happen? Stay tuned.

There are few more important and timely issues concerning innovation and law than the impact of the internet on courts. Courts have always been considered public institutions anyone could walk into to see court proceedings or to look themselves at court files. But now making something “public” means making it available to anyone at his or her own computer, and the inherent resistance to change that resides in any well-established institution makes courts and those who don’t want their legal stands exposed to the brightest possible public lights reluctant to embrace this new notion of public access.

So, as CNN reports, controversy and legal wrangling has erupted over the decision by “the federal judge who is hearing appeals of California’s Proposition 8 this week ruled that the proceedings could be shown — albeit in delayed fashion — on YouTube.”  But opponents of same-sex marriage, outlawed by Proposition 8, appealed the judge’s order and yesterday the Supreme Court postponed the online broadcasts at least until tomorrow (when, it is hoped, the Supreme Court will rule on the issue).

Jon Davidson, legal director of the pro-gay rights Lambda Legal, argued that opponents of same-sex marriage want to keep the trial as much out of the public eye as they can because public debate on same-sex marriage actually increases support for it. In addition, he argued that the risks of true public access to the proceedings is way overblown:

“One of the things we find on the marriage issue, but really on all issues in response to gay rights, is that the more discussion there is — the more conversation, the more people learn — the more likely it is that gay people are going to do well,” Davidson said.

Davidson said posting the trial on YouTube wouldn’t increase the potential for witnesses to be harassed, saying that anyone can read news reports after the fact to find out who spoke and what they said.

Besides, any effort to block new-media coverage of the hearings is already too late, Davidson said. He said people in the courtroom for opening arguments Monday were posting live updates to Twitter throughout.

Vengeance breeds vengeance; we are a country of laws, not torture.

There’s creativity in legal thought, and then there’s “interpretation” utterly unhinged from any logic or authority to justify evils such as torture. Eric Martin at Obsidian wings points out another stupid mistake in any argument in favor of torturing in order to obtain information to aid the so-called “war on terror” — it discourages people from coming forward with information. People applaud “the underpants bomber’s father, Alhaji Umaru Mutallab, who had the strength of character to report his son’s activities to U.S. authorities despite the possible legal repercussions for his son.” But if a father knows his son will be tortured, he’s far, far less likely to turn him in. And, of course, if we’re trying to win the hearts and minds of, among others, Afghanis, aren’t we undercutting our purposes by betraying our morality and our laws? Martin writes:

Alienated Muslims that feel guilty for nothing other than being Muslim are less likely to cooperate with U.S. authorities in thwarting plots. Parents, siblings and friends will not be as quick to intercede if they think their loved one will be brutalized, psychologically scarred beyond repair and denied basic rights. Innocent victims of military strikes will be radicalized as enemies, not converted to allies.

Yet, despite the stakes, certain pundits would have us sacrifice potentially life-saving assets for the sake of maintaining a torture regime – a morally reprehensible practice in its own right, one that corrupts prisoner and questioner alike, and that produces inferior, unreliable intelligence regardless. Not only do they want to keep employing these self-defeating policies that sully our principles, they intend to demagogue the issues relentlessly. Dick Cheney and the GOP leadership – as well as their media enablers – use Obama’s refusal to torture and profile as political cudgels when, in reality, the blows will they attempt will fall most heavily on the American people in the end.

At the end of The Libation Bearers, the second play in the Oresteia trilogy, the story of the seemingly endless cycle of guilt and retribution that plagued the noble House of Atreus, Aeschylus asks:

Where will it end? When will it all/ be lulled back into sleep, and cease,/ the bloody hatred, the destruction?

The answer is the culmination of the third play, The Eumenides: Athena establishes a court of law as the remedy, in place of vengeance, for criminal guilt. At bottom, I think that vengeance is all the advocates of torture can legitimately claim we are getting from torture, and we’ve understood for thousands of years that vengeance does nothing but breed vengeance.

Addendum: I realized that in discussing the Oresteia in connection with torture and the rule of law, I was “betraying” my liberal arts background. But, of course, our blindness to the consequences of abandoning the rule of law because of the alleged necessities brought on by the 9/11 attacks goes hand in hand with a culture that has decided that money is the only valid measuring stick of value and that “free” markets are the best means of making all our choices, even our choices about war.

And the market is governing our choices about education, making liberal arts undergraduate majors so unpopular they’re beginning to disappear. Thus, according to an annual survey by the University of California, Los Angeles, of more than 400,000 incoming freshmen:

In 1971, 37 percent responded that it was essential or very important to be “very well-off financially,” while 73 percent said the same about “developing a meaningful philosophy of life.” In 2009, the values were nearly reversed: 78 percent identified wealth as a goal, while 48 percent were after a meaningful philosophy.

People don’t read the Oresteia anymore. I would bet only a handful of my students even know what it is. So I’m afraid the only thing I don’t agree with when Glenn Greenwald writes the following is any particular sense of being astounded:

It’s truly astounding to watch us — for a full decade — send fighter jets and drones and bombs and invading forces and teams of torturers and kidnappers to that part of the world, or, as we were doing long before 9/11, to overthrow their governments, prop up their dictators, occupy what they perceive as holy land with our foreign troops, and arm Israel to the teeth, and then act surprised and confused when some of them want to attack us. In general, the U.S. only attacks countries with no capabilities to attack us back in the “homeland” — at least not with conventional forces. As a result, we have come to believe that any forms of violence we perpetrate on them over there is justifiable and natural, but the Laws of Humanity are instantly breached in the most egregious ways whenever they bring violence back to the U.S., aimed at Americans. It’s just impossible to listen to discussions grounded in this warped mentality without being astounded at how irrational it is. What do Americans think is going to happen if we continue to engage in this conduct, in this always-widening “war”?

Do you know you’ve agreed that Amazon can decide you’ve agreed to something other than what you agreed to?

I teach contract law. One of the most interesting issues in contract law is the extent to which it is based on conscious agreement. Theoretically, two free individuals are at liberty to agree to govern their relationship with respect to any given matter (the sale of a car, the division of assets in a divorce, the employment by one of another, the limitations on the use of materials posted by one on a web site governed by another) in any way they agree.

One problem with this theory is that so few of our contractual relationships are based on anything resembling conscious agreement. When is the last time you read a rental car agreement? The agreement governing use of your credit card? (Well, we might all be doing that more these days.) The terms of service governing your Facebook account?

The vast majority of us never read the terms of service governing our use of commercial web sites. Yet there is little question we are bound to them and that we entrust them with our creative work and our information we want to keep private. More surprisingly, perhaps, when we agree to these terms of service we almost always agree that the service provider can change the terms unilaterally. In other words, we are agreeing that our relationship with the web site will be whatever the web site decides that relationship will be.

As Plagiarism Today explains:

[I]t is standard practice for many sites to silently change their terms of service as the terms itself allow them to do. Users are often unaware of potentially worrisome changes until after a problem has arisen, when it is often too late to do anything about them.

But now the Electronic Frontier Foundation has created “‘TOSBack‘”: a ‘terms of service’” tracker for Facebook, Google, eBay, and other major websites”:

At www.TOSBack.org, you can see a real-time feed of changes and updates to more than three dozen polices from the Internet’s most popular online services. Clicking on an update brings you to a side-by-side before-and-after comparison, highlighting what has been removed from the policy and what has been added. . . .

“Some changes to terms of service are good for consumers, and some are bad,” said EFF Senior Staff Attorney Fred von Lohmann. “But Internet users are increasingly trusting websites with everything from their photos to their ‘friends lists’ to their calendar — and sometimes even their medical information. TOSBack will help consumers flag changes in the websites they use every day and trust with their personal information.”

How does legal innovation occur? Slowly, by looking to the laws of other countries, and by disguising innovation as interpretation.

In “Inventing Invention: A Case Study of Legal Innovation,” Professor John F. Duffy recognizes that change and evolution in law are taken for granted but rarely studied in depth: “Legal change is treated as if it is something that just happens-that follows inexorably from the emergence of social needs and changed social conditions.” Duffy’s article is an antidote to these truisms, studying in depth the development of the requirement that in order to be patentable an invention must be “non-obvious.”  Duffy identifies in the development of this major legal innovation several characteristics he believes could be generalized to a lot of legal innovation:

(1) “Nation-states do not seem to create new legal conceptions independently nearly as frequently as they borrow them from other nation-states.”

(2) “Nations with similar legal cultures and industrial capabilities, such as the United States and England, sometimes maintain significant differences in their law for periods of decades. The speed of convergence on a single ‘common’ law seems extraordinarily slow.” This deliberate pace seems to be the product of a wait and see attitude: “because [one country does] not know whether the innovation is a pathbreaking and salutary development, like obviousness, or a disastrous experiment that will eventually be discarded,” it will wait and see the results.

(3) Courts are wary of the criticism often directed at them for “making policy” rather than merely applying existing law. As Chief Justice John Roberts puts it, his role is merely to be an umpire, not to determine what is a ball and what is a strike. Of course, Roberts ignores the fact that a strike zone is rather well defined, whereas law is full of open-ended standards (the requirement of “due process,” for example), gaps that do not fit cases that courts must decide, and outright ambiguities. But, as Duffy points out, the attitude Roberts exemplifies forces courts to engage in innovation under the guise of mere intepretation: “even when courts are trying to change the law, they often deny that they are doing so by creating clever reconstructions of the language that previously defined the relevant doctrine.”

The justice system complements the political system: Climate Change and Human Rights.

The University of Washington School of Law recently hosted a conference entitled Three Degrees: The Law of Climate Change and Human Rights. In the words of the conference organizers:

Numerous scholars have suggested that human rights law may provide the most adequate and responsible remedy for climate-related impacts, and this conference will create an international forum to thoroughly test the available remedies, raise the legal issues associated with these remedies, and collaborate over necessary advancements in the law.

Dan Bodansky raises an interesting question about using human rights law to address the problems posed by climate change: wouldn’t the focus on individuals through the use of legal remedies detract from the big-picture policy approaches that are most needed?

Climate change mitigation involves tremendously complex tradeoffs between different values. Focusing on particular individuals or cases, or on particular human rights, can obscure these tradeoffs, making sensible policymaking difficult. Although emphasizing the effects of climate change on human rights may be a useful means of mobilizing public concern and of prodding the political process, a solution to the climate change problem will, in the end, require political decisions by states, both nationally and internationally.

I appreciate Bodansky’s preference for large-scale political movements, but I think that law-making directed prospectively at the level of a political entity (city, state, country, etc.) can and is complemented by legal remedies for individual harm. Again and again I marvel at the blindness of doctors, for example, who direct their wrath at the legal malpractice system without considering the functions the system serves above and beyond punishing doctors. A patient injured by a medical procedure needs to bear the cost of taking care of his injuries regardless of the doctor’s fault. Given the absence of universal health care and the inadequacy of much of the existing health insurance in this country, is it any wonder that juries are likely when they have the chance to choose to have the doctor’s insurance carrier pay for the injured patient’s care? We all face the risk of bad outcomes from medical procedures; doesn’t it make perfect sense to socialize that risk, to have us all share it? Until we come up with a way to do that other than the malpractice system, individual justice is the best we’ve got.

So I would say to Bodansky: unless and until we have the most effective policy solutions to the problems posed by climate change, individual, case-by-case remedies for harm caused by climate change can only help.

Are lawyers and artists completely different and atagonistic?

Wendy Duong of the University of Denver Sturm School has written an article entitled “Law Law is Law and Art is Art and Shall the Two Ever Meet? Law and Literature: the Comparative Creative Processes.”

It’s a fascinating article and well worth dowloading and reading, but here I’d like to take issue with one of her principle points.  As she puts it in the abstract to her article:

The two disciplines, Law and Art, remain divergent and incompatible in three core aspects: (i) the mental process of creation and the utilization of facilities, (ii) the work product or output, and (iii) the raison d’etre of law versus art. The Article points out that the mental process and utilization of facilities inherent in law has little to offer the creation of art, and the two creative processes are antagonistic to each other. In fact, the rationality and logic properties of law the objective of rendering certainty to uncertain future outcomes so as to achieve and maintain order — will interfere with, and can even destroy, the creation of art.

I will confess that I would not generally consider the product of legal practice “art” and it would be a stretch to fit even certain extraordinary legal products art –  Perhaps the Declaration of Independence? The Constitution? Certain influential legal opinions?)

But does law “render certainty to uncertain future outcomes”?  I passionately believe that an enormous part of the law does not do that at all, that what in fact it does is the kind of activity Ms. Duong attributes to art.

Life is infinite.  Each case courts decide are intended first, of course, to resolve the specific cases they are resolving.  But to the extent they render opinions, they are only contingently trying to address the future, and they know those contingent efforts are subject to irrelevance under new circumstances.

Moreover, life is constantly changing, and the law has to grow out of the material conditions it is always striving to govern.  In doing so, it is constantly striving to envision the future material conditions the law might apply to and to anticipate those conditions in making law.  Lawmakers then do not decide with a certainty what law they want to impose from above on the future; they collaboratively work out the best approach to whatever they can envision, knowing all the while that the law may well have to change in the future.

The practice of law too is the constant telling of stories — stories to persuade, stories to inspire, stories to justify visions of the future.  In doing so they are as constrained as artists in the “realities” available to them.  Lawyers are artists.  They may have to make decisions, but that doesn’t mean that in getting to those decision-making points they are not as creatively engaged as artists.

Finally, if lawyers aren’t engaging in the same mental facilities as artists, I don’t have a clue what mental processes artist and lawyers engage in.  I suspect if those ways of thinking are entirely divorced from one another, the lawyers aren’t practicing law well and the artists are not producing good art.

And if artists’ visions are irrelevant entirely from decisions people make in life (You must change your life.), what is it?

Art exposing law: Pirates of the Amazon

Here’s some art trying to express the tensions between technology allowing the instant worldwide dissemination of a work and the law that evolved to deal with an entirely different set of technologies. DailyTech reported that a Firefox plug-in named “Pirates of the Amazon had been developed that allowed its users to immediately identify free alternative online sources for any product they found on the Amazon.com website. Within a day, Amazon’s lawyers had filed a takedown notice. Subsequently, someone put up a website stating that the plug-in had been created as an art project meant to illuminate issues raised by today’s “media culture”:

“Pirates of the Amazon” was an artistic parody, part of our media research and education at the Media Design M.A. course at the Piet Zwart Institute of the Willem de Kooning Academy Hogeschool Rotterdam, the Netherlands. It was a practical experiment on interface design, information access and currently debated issues in media culture. We were surprised by the attentions and the strong reactions this project received. Ultimately, the value of the project lies in these reactions. It is a ready-made and social sculpture of contemporary internet user culture.

One day after publishing we received a take down request by the legal department of Amazon.com.

This work was made as a trimester assignment in our study course, under the supervision of our tutor Denis Jaromil Rojo and our course director Florian Cramer. This page is now the documentation of our study work as required by the course.

To further confuse matters, DSLReports.com wonders if the claim the plug-in was an art project was “simply a post-release attempt by the plugin’s author to cover his legal posterior.” I would suspect, though, that the project really was an art school endeavor. Denis “Jaromil” Rojo “is an artist and a FOSS hacker. . . . popularly known for Dyne:Bolic (http://www.dynebolic.org/), a Live CD distribution . . . . As a programmer, he is author of several free software that present new possibilities for online radios. Jaromil is identified as a “tutor” for the 2008-09 academic year on the Piet Zwart Institute’s web site, and Florian Cramer is identified on the same site as the “course director of the Media Design M.A. programme.”

ADDENDUM: Florian Cramer writes in the comments to thank me for the “balanced” coverage and to add that the indication the site was an art project was made clear on Pirates of the Amazon from the beginning.

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:

Vernon Jordan on Primus King, true courage, and the long road we’ve traveled

One of the greatest men I have ever known is Vernon Jordan, my former partner in Akin Gump Strauss Hauer & Feld, LLP.  Newsweek recently ran an excerpt from Jordan’s new book, Make it Plain.  The excerpt makes as clear as is possible that legal progress requires imagination and, perhaps most of all, sheer courage: 

Primus King was my man.

Born in 1900 in Hatchechubbee, Alabama, the son of sharecroppers, Primus E. King grew up in Columbus, Georgia, where his parents had moved to escape the grinding oppression of the sharecropping system. King was unlettered—like many Southern blacks in those decades for whom the state and local governments made formal schooling an impossibility.

But Primus King well understood the denial of rights blacks endured. His determination to be as independent as possible of the South’s Jim Crow–rigged system of government and social relations showed itself early in his learning the trade of barbering. Later, in 1939, King’s religious faith led him to become an itinerant Sunday preacher, ministering as called by one of the many small black churches that dotted the Black Belt countryside in Georgia and Alabama. It was that faith, he later said, which fortified him for the task he undertook on July 4, 1944.

On that day, Reverend Primus King walked into the Muscogee County Courthouse in Columbus, Georgia, to cast his vote in the state’s Democratic Party primary election. Because the racist Democratic Party monopolized political activity in Georgia as it did throughout the South, the primary determined the outcome of the general election. For that very reason, the state Democratic Party barred blacks from voting in the primary. It was that travesty of democracy that King, quietly supported by the local NAACP, intended to change.

“I am a citizen of this city and this state,” he declared to the white election officials that day. “I own property. I pay taxes. I can read and write and do arithmetic, and I have not committed a crime of moral turpitude. I have come to vote.”

His words got King roughly escorted out of the courthouse by police officers. But King persisted, and with the prearranged help of two local white lawyers, filed a federal suit to outlaw blacks’ exclusion from the Democratic primary.

That brought a warning from party officials, who summoned King before them and bluntly told him that “if you don’t withdraw the lawsuit, you could end up in the Chattahoochie River.”

King, standing alone before the pillars of segregationist power, replied, “Well, if that happens, then at least I’ll be thrown in the river for something, as opposed to all the colored people who’ve been thrown in there for nothing.” And he walked out.

In October 1945, the Federal District Court in Macon, Georgia, ruled in King’s favor, striking down the Georgia white primary. In March 1946, the U.S. Circuit Court of Appeals in New Orleans upheld that ruling, and the following month the U.S. Supreme Court declined to hear the Georgia Democratic Party’s appeal.

The all-white Georgia Democratic primary now officially stood where it belonged—outside the bounds of the Constitution of the United States.

Jurist – the oldest and still greatest legal news site

The page is designed to give our US and worldwide audience a space in which to share their JURIST experiences and their common interest in the legal news and commentary that we offer every day, while giving readers occasional behind-the-scenes peeks at law student staff operations here at the University of Pittsburgh School of Law, JURIST’s host institution. After more than a decade of delivering content to hundreds of thousands of largely anonymous readers around the world, our staff is looking forward to seeing the faces and hearing the voices of the ever-growing number of JURIST readers on the Facebook service!

Not only is Jurist one of the Ancient Wise Oracles of the online legal world, it is a moment-to-moment legal media center.  Just to give two examples of particular concern to me:

As I wrote yesterday, Google seemed on the verge of settling the long-running and profound disputes concerning its Google Library Project.  Jurist now reports the settlement is final:

With respect to another profound concern of mine, military torture, Jurist reports that a federal judge has ruled that evidence obtained by torture cannot be admitted in the trial of a Guantanamo detainee:

A US military judge ruled Tuesday that a confession given by Guantanamo Bay [JURIST news archive] detainee Mohammed Jawad [DOD materials; JURIST news archive] to Afghan officials following his capture in 2002 was obtained using torture and is therefore inadmissible at his upcoming military commission [JURIST news archive] trial. Army Col. Stephen Henley found that Afghan officials threatened to kill Jawad and his family unless he admitted to throwing a grenade that injured three US soldiers in Kabul in 2002. Henley ruled that obtaining a confession using threat of death amounted to torture, and that under Guantanamo trial rules his confession is therefore inadmissible. Reuters has more.

Jawad, who was transferred into US custody after the confession to the Afghanistan government, was designated an “enemy combatant” in 2004. He was later charged [charge sheet, PDF; JURIST report] with attempted murder and intentionally causing serious bodily injury for his role in the attack, which injured two US soldiers and an Afghan translator. The case against him faces growing problems. Last month, former military commissions chief prosecutor Army Lt. Col. Darrel Vandeveld resigned [JURIST report], citing “ethical qualms” with the military commissions’ defense counsel discovery procedures. In May, Jawad moved [JURIST report] to have all charges against him dismissed, alleging that he has been tortured in US custody and subjected to the so-called “frequent-flier program,” in which certain inmates are moved between cells at two to four hour intervals in an attempt to cause physical stress through sleep deprivation. Jawad, the fourth Guantanamo detainee to be formally charged with war crimes under the 2006 Military Commissions Act [text, PDF], is set to face military commission on January 5, 2009.

Settlement imminent in lawsuit against the Google Library Project?

I’ve long been fascinated by the Google Library Project, considering it one of the greatest boons to research since Gutenberg. I’ve written on this blog of my bafflement at its opponents, especially those authors who fear their inclusion within the project. I’ve written elsewhere at the utter misconceptions that govern some views of the project. (I have, however, been called a “dickwad” for pointing out these misconceptions, a characterization unsupported by reference to any law.)

The good news is that, as Open Access News reports, “Andrew Albanese reports in Library Journal, October 10, 2008, that Google and a group of publishers may be close to settling the publishers’ lawsuit against the Google Library Project:

Nearly three years after its initial filing, it appears a settlement may finally be near in publishers’ lawsuit over Google’s controversial program to scan books from library shelves. Although rumors of a settlement have flared up and died down intermittently over the years, sources wishing to remain anonymous this week told the LJ Academic Newswire and Publishers Weekly that talk of a final agreement has indeed heated up, with one publishing insider confirming that a settlement was “imminent,” although no solid time frame was known….

A settlement has long-been expected, as it would avoid what is setting up to be a messy trial. Industry-watchers have predicted the two parties eventually would reach some kind of blanket license agreement, noting that avoiding a court decision involving murky copyright and fair use boundaries is the logical, least risky-and least costly-option for both parties.

From the start, publishers have maintained that the wholesale scanning of copyrighted books from libraries is an unreasonable expansion of fair use, and that Google is creating a valuable asset without compensating rightsholders. Google has countered that its plan, which makes only “snippets” of copyright-protected books viewable online, is fair use, and that publishers, can also “opt out” of having their books scanned….

[T]he AAP suit, filed in October 2005 on behalf of McGraw-Hill, Pearson Education, the Penguin Group, Simon & Schuster, and John Wiley & Sons, does not seek damages. It seeks an injunction that would essentially declare that Google’s scanning of an entire book still under copyright without permission is infringement. . . .

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)

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 . . . . .

If a corporation is a person, why is an animal no more than a chair?

Stephen M. Wise discusses the ways society shapes the development of the law in connection with the rising awareness that animals are not merely “things”:

Is it up to society to force a change in the law? Or will the law change society?

The law both leads and follows society. The legal system changes through the decision of judges or by legislatures enacting statutes. You saw this, for example, in the anti-slavery amendments to the U.S. Constitution in the 19th century and the numerous civil rights statutes of the 20th century. But the way the law changes and the way society changes are connected. People who try to change the law also depend upon changes in societal values, as well as upon scientific discoveries. In recognition of this, Rattling the Cage is crammed with reports about scientific discoveries on the nature of the cognition of chimpanzees and bonobos of the last 20 or 30 years. These discoveries form the springboard from which I can argue for their rights and personhood.

How do you think our view of animals will develop in the next 20 years?

It is going to develop in a complex way. First, a hierarchy of nonhuman animals will continue. Though nonhuman animals are considered legal things today, society does not view all nonhuman animals in the same way. Some we clearly value more than others. Even though chimpanzees don’t have any legal rights, we no longer euthanize them after they are no longer useful in medical experiments, as we do, say, to white mice. This fact both results from and drives the coming legal personhood of Great Apes. We’re beginning to see this not only in the U.S., but throughout the West. Westerners are also increasingly valuing their companion animals and I see increasing protection for them. The animals whom we thoughtlessly consume for food are being subjected to worse and worse conditions in the U.S. But an opposite trend is rising in [parts of] Europe. I think we will see the European trend expand even as factory farming in the U.S. increases. However, within the next 10 years, the American factory farming industry is going to learn how it has greatly overstepped and miscalculated just how much abuse of nonhuman animals used for food people are willing to accept. Stir in the environmental degradation that is its inevitable consort and there is going to be a backlash that will drive factory farming in the U.S. in the direction that Europe has taken and will, perhaps, drive at least some of it out of business.

There’s nothing radical about Wise’s position. The law already recognizes that artificial entities such as corporations are legal “persons” and are therefore, among other things, entitled to the protections accorded people under the Bill of Rights.

A new breed of lawyers

As the New York Times reported two years ago, a couple in New York City rescued three pigeons in Central Park and gave them a home in their apartment for years. When the building went co-op, however, the new landlords sued to evict the couple under a city ordinance outlawing chickens, cows, “or any pigeon except Antwerp or homing pigeons.” Maddy Tarnofsky, a new breed of lawyer, came to their rescue. First, she wondered, how could the landlord prove the pet birds weren’t Antwerp or homing pigeons? He couldn’t; there is no biological difference between Antwerp pigeons or any other pigeons, and, a veterinarian testified, the birds could likely be trained to home as well.  The court dismissed the eviction proceeding.   

As the Times goes on to explain, the growing field of animal law is not without its critics: “Many veterinarians, for example, fear that pet lawyers could become the animal-world equivalent of medical malpractice lawyers, reaping large juryawards and contributing to a rise in malpractice insurance costs. The American Veterinary Medical Association formed a task force on animal law last year and came out squarely against redefining the legal status of pets.”

Many animal law lawyers, however, want to distinguish themselves from animal rights advocates: “they are concerned primarily with getting the legal system to acknowledge that animals have an intrinsic value beyond mere property, because of the bond between pets and their owners.”

Not that animal rights advocates are anything to fear.

ADDENDUM: As Stefani points out in the comments, Christopher Green had demonstrated in his groundbreaking study, “The Future of Veterinary Malpractice Liability” (pdf), the fears manifested in the American Veterinary Medical Association’s opposition to redefining a pet as something more than the equivalent of a chair are baseless.  I’m not surprised.  Playing to the public’s fears of personal injury lawyers is an old and baseless trick.

Thanks to Washoe, Animal Law is even entering legal education

My former colleague at Case Western Reserve, Kathy Hessler, is the Director of the Animal Law Clinic at Lewis and Clark Law School in Portland, Oregon.  The clinic, in which students under the superivision of professors represent clients in real cases, specializes “in animal protection issues including cases against those who have harmed or injured animals, custody disputes, activist defense, “dangerous” dog hearings, pet trusts, and assistance for non-profit organizations.”  Under Professor Hessler’s direction, it will also begin to focus on larger cases focusing on law reform with respect to animal issues.

Sometimes you need a chimpanzee to move the law forward

Traditionally, the law has treated animals as personal property. In other words, your dog is no different to you than one of your chairs. There have been slight modifications — animal cruelty laws, most notably — but for most purposes your dog is no more than chattel. From the New Yorker — ironically enough in an article about Leona Helmsley and her dog, to whom she left $12 million in trust — comes the story of how the growing field of animal rights began.

It all started with Washoe, the first chimpanzee to learn sign language to communicate with humans. When there came a time Washoe was going to be sent off for animal testing, Victoria Bjorklund, a lawyer, wanted to set up a trust and appoint a guardian for Washoe. The problem was that New York law only permitted the appointment of guardians for a “person with a disability.” As the New Yorker explains:

[Bjorklund and her colleagues] argued that “the mental, emotional, sociological, and biological characteristics” of Washoe and the other chimps “warrant their treatment as persons” entitled to representation. The lawyers submitted affidavits from such animal experts as Jane Goodall, who said that “chimpanzees are biochemically closer to humans than they are to any other of the great apes.” According to the brief in the case, the chimps “are capable of rational thought, communication, and other higher cognitive functions,” justifying their treatment as the legal equivalent of minors or disabled humans. In a 1997 decision, the surrogate of Nassau County agreed and appointed a guardian to administer the trust for the benefit of the chimps. “That trust was then respected by the State of Washington, where Washoe lived,” Bjorklund said. “We think it was the first trust ever established for the benefit of specific nonhuman primates.”