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.

Metaphors really do twist your mind.

Lawyers — especially those like me who write pieces of legal advocacy and teach others to do so as well — know well the power of words. So do politicians. Paul Ryan and the Republicans are proposing to replace Medicare (which supplies government-paid medical care for senior citizens) with a plan that instead provides money to senior citizens to buy their own private medical insurance on the open market. Their plan utterly destroys what Medicare is, but they describe it as one to “save Medicare, . . . to reform it so that it delivers the high quality we expect, at a price we can afford.” (emphasis added)

And taxes on wealth passed to those who didn’t earn the wealth are described as “death taxes.”

As I wrote above, however, lawyers are well-attuned to these tricks. Sometimes, therefore we underestimate their impacts. We see through the metaphorical frames our adversaries use.

But Psychology Today describes a study  vividly demonstrating the impact metaphors have on judgment by documenting the radically different proposed solutions college students proposed for urban crime depending on whether the crime was described as a “wild beast preying on” and “lurking” in the city or, instead, a “virus plaguing” the city:

Researchers Paul Thibodeau and Lera Boroditsky from Stanford University demonstrated how influential metaphors can be through a series of five experiments designed to tease apart the “why” and “when” of a metaphor’s power. First, the researchers asked 482 students to read one of two reports about crime in the City of Addison. Later, they had to suggest solutions for the problem. In the first report, crime was described as a “wild beast preying on the city” and “lurking in neighborhoods”.

After reading these words, 75% of the students put forward solutions that involved enforcement or punishment, such as building more jails or even calling in the military for help. Only 25% suggested social reforms such as fixing the economy, improving education or providing better health care. The second report was exactly the same, except it described crime as a “virus infecting the city” and “plaguing” communities. After reading this version, only 56% opted for great law enforcement, while 44% suggested social reforms.

Interestingly, very few of the participants realized how affected they were by the differing crime metaphors. When Thibodeau and Boroditsky asked the participants to identify which parts of the text had most influenced their decisions, the vast majority pointed to the crime statistics, not the language. Only 3% identified the metaphors as culprits. The researchers confirmed their results with more experiments that used the same reports without the vivid words. Even though they described crime as a beast or virus only once, they found the same trend as before.

A National Public Library? There’s nothing to stop it other than a lack of political will to do anything useful.

Robert Darnton calls for a National Digital Library — “a digital library composed of virtually all the books in our greatest research libraries available free of charge to the entire citizenry, in fact, to everyone in the world.” I agree with him that the project is neither naive nor utopian. Several countries have already committed themselves to the creation of their own national digital libraries:

In December 2009 President Nicolas Sarkozy of France announced that he would make €750 million available for digitizing the French cultural “patrimony.” The National Library of the Netherlands aims to digitize within ten years every Dutch book, newspaper, and periodical produced from 1470 to the present. National libraries in Japan, Australia, Norway, and Finland are digitizing virtually all of their holdings; and Europeana, an effort to coordinate digital collections on an international scale, will have made over ten million objects—from libraries, archives, museums, and audiovisual holdings—freely accessible online by the end of 2010.

Darnton concludes that the U.S. “should be possible to digitize everything in the Library of Congress for less than Sarkozy’s €750 million—and the cost could be spread out over a decade.” And he therefore sees the legal issues — particularly dealing with “orphan works” – as the principal barrier to a U.S. National Digital Library.

Unfortunately, I disagree with Darnton regarding the main impediment. As I’ve explained “orphan works” are “works whose copyright holders cannot be identified, a common problem because there is no registry of copyrights and the authors of the books are not necessarily the copyright holders. Rather, the copyright holders might include unidentifiable heirs or even corporate entities that have gone through mergers, dissolutions, or other forms of corporate reorganization that make it difficult or impossible to identify the entity that currently owns the copyright.” I’m not sure I see any particular problem with Congress enacting legislation amending the Copyright Act to authorize a National Public Library to use works whose copyright owners cannot be identified under terms that provide for reasonable compensation when and if owners make and establish their claims.

I think, however, the cost is a real impediment in the current economic climate. €750 million is almost $1 billion. While the U.S. military budget for 2010 totals approximately 685 times this amount, the current political climate hardly seems ripe for Congress to take the initiative on a project that would strike much of the citizenry — and certainly most U.S. politicians — as intellectual frivolity. It isn’t, of course, but one can be sure that massive confusion over the rights of authors (as I’ve touched on here, among other places) could be used to demagogue to death a billion dollar project longed for by a bunch of professors.

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.”

Fighting Facebook’s overreaching.

I’ve written plenty about copyright overclaiming and its pernicious tendency to stifle clearly legitimate appropriation of copyrighted works. As Richard Posner has written, the fear of litigating against rich copyright holders who place a premium on their fear of losing something of value leads to behavior based on law that isn’t at all what the law is supposed to be.

Of course, the over zealous assertion of purported legal rights by wealthy litigants to cow the less wealthy is not the type of behavior limited to copyright. It comes arises in all legal fields. And, unsurprisingly, Facebook apparently is prone to the practice. As Boston.com reports:

Boston-based Where Inc. has developed an application that helps users find places they might like to visit. You can save it in something called a Placebook.

Just one small problem. The owners of Facebook have apparently decided that Placebook is in violation of its intellectual property rights. Facebook argues that companies like Placebook create confusion among consumers, thereby diluting the value of their unique brand. (Hyperlink added.)

It seems to me a bit of a stretch to worry that someone would consider Placebook to be a product of Facebook. And while Facebook is a pretty brilliant name, it’s hardly original — filched as it was, after all, from the colloquial term that Harvard and many other colleges give to the photo directories they distribute to students. (At my undergraduate institution it was known as the “Pigbook.”)

But Facebook doesn’t have to worry too much about the legitimacy of its claim as long as it’s just legitimate enough to pass the giggle test and thereby scare potential defendants into giving up without a fight:

In a cease-and-desist letter to Placebook’s lawyer a couple of weeks ago, Facebook’s lawyer wrote that, in the US alone, it has successfully intervened to prevent the registration of the trademarks Officebook, Flickbook, Geezerbook, Doctorbook, Lawyerbook, and my personal favorite, Redneckbook, which would have been a website for the hunting-and fishing crowd.

Placebook, however, is not so easily bullied. Just as importantly, Placebook has a lawyer who recognizes bullying when she sees it:

“I think Facebook is having an identity crisis and they are acting like predators,’’ said Kimberly B. Herman, an attorney at Sullivan and Worcester who is representing Placebook. “It’s very predatory and not reasonable.’’

In previous cases, Facebook has gotten its way simply by firing off a threatening letter, according to Herman. That’s what happens when a company valued at nearly $7 billion unleashes its legal might against start-ups. “Every entity has rolled over and died, because no one has $6.9 billion to fight them,’’ Herman said. (Hyperlink added.)

The writer of the Boston.com piece agrees with me in thinking that “consumers are smarter than Facebook gives them credit for and are not likely to get Placebook and Facebook confused.” Unfortunately, “a court may have to decide that — if, of course, Placebook doesn’t back down, as others have.” Here’s hoping Placebook has the resources to send Ms. Herman out to fight for them.

Arbitration often isn’t fast and cheap.

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

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

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

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

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

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

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

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

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

[Hat tip to Philip Loree.]

Legal decisions based on what the law is not — the “permission culture” and copyright overclaiming

One thing law students don’t get at all is the ways lawyers negotiate a world in which legal decisions are based on what the law is not.

Mike Masnick over at techdirt, , writing about the “Permission Culture” (that is, the culture that insists that sampling and quoting should only be done with permission), puts his finger directly on one of the biggest problems — the fear of even frivolous lawsuits, even by big publishing concerns, prevents writers, musicians, and artists from quoting, sampling, and appropriating parts of copyrighted works they don’t need permission to take:

The unfortunate reality these days is that publishers won’t touch such quotes without permission being granted. It’s almost impossible to find a publisher these days that would sign off on even that snippet of eight words, claiming that they don’t want the liability of a lawsuit. I’ve had this discussion a few times with authors and publishers, and they all say the same thing: due to the potential liability of a lawsuit, even if it clearly does appear to be fair use, it’s just not worth using the quote. In fact, we discussed this point here last year, where we wrote about an author who had to drop an entire section of a book, because of a few short quotes. Clear fair use… but his publisher wouldn’t touch it.

I would suggest too that one reason publishers won’t publish books without permission for the use of quotations is that they perceive it to be in their interests not to do so. That way, other publishers will ask and pay for permission to use quotations from their own books. That is why, I am convinced, the music industry never has seriously challenged lower court decisions requiring permission (and, presumably, payment) for the use of any recorded sample — the practice makes each company’s record vault’s sources of income.

The problem, of course is exacerbated considerably because the wealth and of the corporate conglomerates that own so much of our intellectual property. Who is going to fight Disney, even if he’s right? Another problem is the widespread ignorance in the media about copyright. As Richard Posner has written, the fear of litigating against rich copyright holders who place a premium on their fear of losing something of value leads to behavior based on law that isn’t at all what the law is supposed to be:

Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS film recording. The notice will almost always state that no part of the work can be reproduced without the publisher’s (or movie studio’s) permission. This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn’t know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit. The would-be fair user is likely to be an author, movie director, etc. and he will find that his publisher or studio is a strict copyright policeman. That is, since a publisher worries about expansive fair uses of the books he publishes, he doesn’t want to encourage such uses by permitting his own authors to copy from other publishers’ works. So you have a whole “law in action” law invented by publishers, including ridiculous rules such as that any quotation of more than two lines of a poem requires a copyright license.

Viacom’s schizophrenia over YouTube: the industry cries “serial killer!”

Does YouTube threaten the entertainment industry? On the one hand, Viacom and others will scream that it threatens the very livelihood of those who produce our entertainment. On the other, Viacom and others use it effectively to promote their products. And would you really prefer a regime that required YouTube to approve the legitimacy of every video uploaded to it? Frankly, it simply wouldn’t exist if that were required. To me it makes sense that if a copyright holder believes his copyright is being infringed by an online video, he can have it removed upon request. And if the person who uploaded the video believes the request is mistaken, he can ask Google to review it and make its determination at that point whether it will allow it to remain.

Moreover, history teaches that you should view with extreme skepticism the cries of alarm from the entertainment industry. In doing so, you likely would be doing them a favor.

As I wrote the other day in connection with the decision dismissing Viacom’s lawsuit against Google alleging copyright infringement for the posting on YouTube of videos infringing Viacom’s copyrights, As I wrote above, the existing regime makes sense to me and, as I wrote in that recent post,  ”[t]he decision is a straightforward application of the DMCA’s “safe harbor” provision, which insulates service providers from liability for activities by their users that infringe copyrights.” Viacom, of course, disagrees, stating in its press release:

We believe that this ruling by the lower court is fundamentally flawed and contrary to the language of the Digital Millennium Copyright Act, the intent of Congress, and the views of the Supreme Court as expressed in its most recent decisions. We intend to seek to have these issues before the U.S. Court of Appeals for the Second Circuit as soon as possible.

And those who represent the interests of large corporate copyright holders such as Viacom, like the Washington Legal Foundation (whose mission is to “champion free market principles [and] limited and accountable government”) argue that the decision allows Google “to exploit the statute’s safe harbors by designing an entire business model based on improperly profiting from copyrighted content.” Ronald Cass writes in Forbes that the decision is “broad enough to sink the protection copyright holders had enjoyed under the law.” And the Directors Guild of America claims its members’ very livelihoods are at stake:

We fear that the precedent established in this ruling, if not overturned by the appeals court, could result in a drastic rising tide of Internet theft that could decimate our members’ livelihoods, their pension and health plans, and their ability to continue creating the content that is beloved by people all over the world.

Reading these dire warnings you might not realize that as the judge stated in his decision Google took down the offending videos the day after Viacom delivered a mass takedown notice identifying the ones it claimed a copyright in. Nor would you realize that Viacom recognized the value of YouTube to its business by employing people to post its videos to YouTube to promote its productions while at the same time other Viacom employees were adding those same videos to the list for the takedown notice:

For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately “roughed up” the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt “very strongly” that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

Viacom’s efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

Fear that directors will have their livelihoods decimated and that the decision sinks copyright protection is of course, nothing new for an entertainment industry that can profit enormously from new technologies they demonize, so Viacom’s schizophrenia is, perhaps, progress over Hollywood’s reaction to the VCR, which was 100% self-destructive. In 1982, Jack Valenti, in sworn testimony before Congress , stated “that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.” But, as Digital America explains, Valenti was not merely crying wolf — he was describing the greatest benefit to the movie industry in the last 40 years as a serial killer:

As the VCR became more important to the consuming public, the Hollywood establishment that fought it bowed to its inevitable benefits. In January 1984, the U.S. Supreme Court concluded 5-4 that VCRs were legal products and that home taping of copyrighted works fell under the “fair use” exception to copyright. While Congress passed the Audio Home Recording Act of 1992 (AHRA), legislative attempts to codify the Betamax decision and fair video recording rights are still pending before Congress. CEA (at that time known as the Consumer Electronics Group of the Electronic Industries Association), in cooperation with the Home Recording Rights Coalition, protected the legality of home recording and promoted the acceptance of the new technology.

Additionally Hollywood studios established home video divisions to reap the profits from a technology it once considered a threat. Blay’s idea sparked a retail revolution as hundreds of mom-and-pop video rental and sales stores popped up in every community in America. In 1987, video rental income reached $5.25 billion for the year, surpassing movie theater ticket sales for the first time. Today, movie studios regularly make more money on a film from home video sales and rentals than from the theatrical box office.

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.

David Souter gives a lesson in judging and the failures of Originalism.

Former Supreme Court Justice David Souter recently gave the commencement address at Harvard. In doing so, he set forth clearly and in ways anyone can understand why it is ridiculous to suggest that interpretation of the Constitution merely requires a judge to engage in a “straightforward exercise of reading fairly and viewing facts objectively.” He makes clear that, in his words, such a simplistic view “has only a tenuous connection to reality.” In doing so, he answers “criticism that the court is making up the law, that the court is announcing constitutional rules that cannot be found in the Constitution, and that the court is engaging in activism to extend civil liberties.”

The entire speech is worth reading for anyone interested in a high-level lesson in constitutional analysis given in clear, straightforward prose. I will try here to touch on a few of its highlights.

First, Souter points out that many of the Constitution’ guarantees are phrased in such open-ended language that they necessarily will require a large degree of interpretive work to determine their application to new facts in new times: ‘The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches.” He contrasts these provisions to provisions that provide bright lines that make decision easy — provisions such as the requirement that Senators be 30 years old.

But, as he makes clear, pointing out that determining, for example, whether a given governmental action satisfies the requirement of “due process” “hardly scratches the surface” of constitutional judging. First, provisions may be clear and yet any consideration of their real implications makes obvious that they cannot be applied literally. Second, as I’ve pointed out before (in discussing why “empathy” plays a far greater part in judging than implied those who would suggest empathy is merely soft-heartedness), determining which facts are more or less significant makes all the difference in the world of a judge:

The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time. Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony. Yet another reason is that the facts that determine whether a constitutional provision applies may be very different from facts like a person’s age or the amount of the grocery bill; constitutional facts may require judges to understand the meaning that the facts may bear before the judges can figure out what to make of them.

To make these points, Souter uses two examples. The first was the Pentagon Papers case, in which the “New York Times and the Washington Post had each obtained copies of classified documents prepared and compiled by government officials responsible for conducting the Vietnam War. The newspapers intended to publish some of those documents, and the government sought a court order forbidding the publication.” While the Court ruled that the newspapers had the right under the First Amendment to publish the Pentagon Papers, it did not do so on the simple basis that the First Amendment provides that “Congress shall make no law … abridging the freedom of speech, or of the press.” (emphasis added.) Instead, the Court adopted the interpretation advanced by Irwin Griswold, who responded to the suggestion by Justice Black that the case was a simple one of applying the rule that “no law” means “no law” with the argument that it was not so simple:

Now Mr. Justice, your construction of that is well-known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only say, Mr. Justice, that to me it is equally obvious that “no law” does not mean “no law,” and I would seek to persuade the Court that that is true.

Thus, the [C]ourt’s majority decided only that the government had not met a high burden of showing facts that could justify a prior restraint, and particular members of the court spoke of examples that might have turned the case around, to go the other way. Threatened publication of something like the D-Day invasion plans could have been enjoined; Justice Brennan mentioned a publication that would risk a nuclear holocaust in peacetime.”

How can it be that “no law” does not mean “no law”? Isn’t that kind of “interpretation” exactly the kind of thing that gives judges a bad name? As Souter makes clear, it is nothing of the sort; it’s the reason we consider judging an activity requiring the utmost in wisdom, intelligence, and experience. The First Amendment guarantee of freedom of the press cannot possibly be absolute because the Constitution provides for a plethora of other individual rights and governmental obligations, no one of which is entirely consistent with the other. As the examples above illustrate, we also have to account for the constitutional authority of the President to provide for national security . As anyone who has considered matters of individual liberty at any depth know, individual liberty is often necessarily at odds with equality. Yet the Constitution guarantees both individual liberty and equality. As Souter explains, an interpretation based on merely believing “no law” in the First Amendment means “no law”

fails because the Constitution has to be read as a whole, and when it is, other values crop up in potential conflict with an unfettered right to publish, the value of security for the nation and the value of the president’s authority in matters foreign and military. The explicit terms of the Constitution, in other words, can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises. The guarantee of the right to publish is unconditional in its terms, and in its terms the power of the government to govern is plenary. A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice. And choices like the ones that the justices envisioned in the Papers case make up much of what we call law.

Souter’s second example is The Supreme Court’s decision in 1954 in Brown v. Board of Education, in which the Court unanimously held that racial segregation in public schools imposed violated the Constitution’s guarantee of equal protection of the law. As Souter explains, “Brown ended the era of separate-but-equal, whose paradigm was the decision in 1896 of the case called Plessy v. Ferguson, where the Supreme Court had held it was no violation of the equal protection guarantee to require black people to ride in a separate railroad car that was physically equal to the car for whites.”

Souter, significantly, thinks that best explanation for the differences in the results between Plessy and Brown is an explanation that is forbidden to those who would believe the Constitution means now what it did in 1789 and must always mean what it meant in 1789: “the difference between the cases is the dates they were decided.”

How can this be so? It is because the significance of facts differ from judge to judge, and, of course, the significance of facts differs over time. What seemed equal treatment of the races in 1896 — when the contrast was to the recent legality of slavery — no longer seemed equal in 1954, and it would be folly to suggest otherwise:

[T]he generation in power in 1954 looked at enforced separation without the revolting background of slavery to make it look unexceptional by contrast. As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see. That meaning is not captured by descriptions of physically identical schools or physically identical railroad cars. The meaning of facts arises elsewhere, and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own. Meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page. And when the judges in 1954 read the record of enforced segregation it carried only one possible meaning: It expressed a judgment of inherent inferiority on the part of the minority race. The judges who understood the meaning that was apparent in 1954 would have violated their oaths to uphold the Constitution if they had not held the segregation mandate unconstitutional.

As Souter so succinctly puts the matter: “So much for the assumption that facts just lie there waiting for an objective judge to view them.” And so much for the contention by John Roberts that judging is merely a matter of “calling balls and strikes.” As Souter says, such a simplistic view of what judges do “fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do.” “Judges have to choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning.”

Most fundamentally, Souter sees the contrast between his view of the Constitution and the view of those who would have it that judging his way means that he is making it up along the way to evade the plain language of the law as the contrast between those who would impose certainty in a world where there is no certainty. Most importantly, Souter believes that, in the face of uncertainty, we fulfill our national aspirations best by applying reason and judgment to the application of the principles that our nation was established to uphold:

Where I suspect [I] differ most fundamentally[from the those who would apply a simple, literal meaning to constitutional language] is in my belief that in an indeterminate world I cannot control, it is still possible to live fully in the trust that a way will be found leading through the uncertain future. And to me, the future of the Constitution as the Framers wrote it can be staked only upon that same trust. If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.

That is how a judge lives in a state of trust, and I know of no other way to make good on the aspirations that tell us who we are, and who we mean to be, as the people of the United States.

What is the best preparation for law school? I’d suggest it is a liberal arts education.

I am often asked what type of undergraduate education best prepares a student for law school. Most of my life I’ve been completely baffled by the question. It never occurred to me that my very Classical liberal arts education — I double majored in Ancient Greek and Latin — would be something to recommend, and while I have always been a huge supporter of liberal arts education, I never felt confident in recommending it as preparation for law school. But neither was I ever persuaded that my students who had thought long and hard about choosing the “right” major to prepare for law school — and ended up thereby majoring in political science, business, or economics — were any better prepared than those students who had not chosen an undergraduate major based on a desire to “prepare” for law school.

I was reminded of this question in reading Rebecca Mead’s commentary on the views of certain economists that an undergraduate degree is not an economically wise way of earning a living. As Mead explains, this conclusion is based in part on the fact that the greatest opportunities to earn money in the near future are in fields in which a college degree is not required:

Economics majors aren’t doing badly . . . : their starting salary averages about fifty thousand a year, rising to a mid-career median of a hundred and one thousand. Special note should be taken of the fact that if you have an economics degree you can, eventually, make a living proposing that other people shouldn’t bother going to college. This, at least, is the approach of Professor Richard K. Vedder, of Ohio University, who is the founder of the Center for College Affordability and Productivity. According to the Times, eight out of the ten job categories that will add the most employees during the next decade—including home-health aide, customer-service representative, and store clerk—can be performed by someone without a college degree. “Professor Vedder likes to ask why fifteen percent of mail carriers have bachelor’s degrees,” the paper reported.

In addition, “[a]nother economist, Professor Robert I. Lerman, of American University (Ph.D., M.I.T.), told the Times that high schools, rather than readying all students for college, should focus on the acquisition of skills appropriate to the workplace. According to the Times, these include the ability to ‘solve problems and make decisions,’ ‘resolve conflict and negotiate,’ ‘coöperate with others,’ and’listen actively.’”

These opinions awoke in me a gnawing feeling that has been building in me the past couple of years — the feeling that the best educational preparation for being a lawyer is a liberal arts education.

One particular moment in the last 2 years stands out form me in considering this question. I was reviewing an exam with a student and explaining a clever argument another student had come up with in connection with the interpretation of ambiguous contract language. The contract called for the supply of sweetener to the manufacturer of a soda being marketed to the types of buyers who would be interested in “healthier” alternatives to mass market sodas. The contract provided for the supply of “sugar,” and the dispute arose when the supplier substituted high fructose corn syrup for granulated sugar as the sweetener. The other students argument was based on the greater attractiveness of granulated sugar to the buyers the soda manufacturer was targeting to argue in favor of an interpretation that would limit “sugar” to granulated sugar even though high fructose corn syrup is also, chemically, a “sugar.”  The student with whom I was meeting thought about this point, realized the argument was a good one and one she herself had not come up with, but still felt my point was objectionable because the argument was grounded in facts about the world she didn’t know. So she told me, “You’re not testing us on Contracts. You’re testing us on what we know about the world!”

I smiled, and I explained: if you don’t know about the world, you can’t understand law. Law doesn’t supply answers that exist independent of the world it answers questions about. In contract interpretation, courts are asked to determine, based on the available evidence, what they believe people  intended contracts to mean. The “rules” that govern those interpretive acts don’t work like mathematical formulas — they constitute a structured way of approaching the question of what people intended, nothing more, and therefore don’t provide any way out of answering the question; what do you think the people entering this contract intended? While the rules might limit the scope of evidence that can be considered, within that scope anything that persuades the court about the intended meaning is fair game for the court to consider. So, in the question I was considering with my student, the attractiveness of granulated sugar to the  manufacturer’s target market was a very relevant consideration — if you could show that both the supplier and the manufacturer knew and understood the marketing strategy, you could argue persuasively that they both intended “sugar” in the contract to mean only “granulated sugar” and not to include high fructose corn syrup.

And so, more and more often I have found myself telling my students that in addition to studying law they should be learning everything they possibly can about everything. I hate to be that vague, but, at the same time, I am quite serious. Would a better education in “decision making” have helped BP decision makers planning for offshore oil drilling than an education grounded in Greek Tragedy? I don’t think so.

Why would a mail carrier consider an undergraduate education worthwhile even if the tuition is economically out of balance with his earnings as a mail carrier? I hate to say it — because I hate the thought it needs to be said — but the education might make him a happier person and the money he will earn is not the only measure of his happiness.

And what should you learn to prepare for law school? Anything and everything, but learn it well.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Blank slate, my ass.

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

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

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

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

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

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

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

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

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

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

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

We now know Roberts was lying.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Salinger v Colting 2d Circuit Appeal of Prelim Injunction Decision

There is no shortcut to thoughtful decision making. It requires critical thinking and discussion, and PowerPoint not only doesn’t help, it hurts.

My points yesterday were about much more than PowerPoint and its inadequacy to convey information or analysis effectively. This isn’t the first time I’ve brought up Edward Tufte’s work, but many have pointed out to me what, in fact, had inspired yesterday’s post – The New York Times article 4 days ago discussing the diagram below, part of a PowerPoint presentation made last summer to Gen. Stanley A. McChrystal, the leader of American and NATO forces in Afghanistan, on U.S. strategy in Afghanistan. As the article explained, McChrystal’s said, when he saw the slide: “When we understand that slide, we’ll have won the war.” The room “erupted in laughter.” The article also quotes Gen. James N. Mattis of the Marine Corps, the Joint Forces commander, saying last month that “PowerPoint makes us stupid,” which, of course, is a paraphrase of the headline of the 2003 article on Tufte and the Columbia space shuttle I discussedyesterday. More to the subjects my post yesterday was about, the article states: “Commanders say that behind all the PowerPoint jokes are serious concerns that the program stifles discussion, critical thinking and thoughtful decision-making.” The most obvious conclusion to draw from an examination of the slide below is one I made yesterday, quoting Tufte — to convey any effective analysis that the slide’s creator intended to convey would have required an extensive written document.

John Stewart last night got into the topic last night too:

Challenging automated YouTube takedowns (and don’t forget to think through the ramifications)

Chris Walters at The Consumerist provides an excellent account of the whys and wherefores of takedowns of YouTube videos.  In addition to explaining why YouTube’s automated Content ID tracking system results in the kind of baseless deletions I referred to the other day, Walters also explains that “[Y]ou can dispute any Content ID claim. If you have a clip that’s been targeted, you’ll see a notice about it on your YouTube account page. From there you can access a dispute page where you can affirm that you believe your clip falls under fair use, and the clip will immediately become public again. The copyright holder will receive notice that you’ve disputed the clip, and must then decide to leave you alone, send a DMCA takedown notice, or sue.”

Importantly, too, he explains that you want to give some thought to the ramifications of disputing an automated takedown: “There are legal ramifications to this, which YouTube hints at and the EFF explains very clearly. If you decide to fight copyright abuse by a large company, you should make sure that you’re on the right side of the fight, that you have a sensible chance of winning a possible lawsuit, and that you’re willing to assume the financial risk. All three of those determinations probably require some serious meetings with a lawyer.”

On the other hand, any copyright owner sending a takedown notice ought to consider the legal ramifications of doing so, since a baseless one relying on the power to outspend an individual fair use claimant might have its own legal downside.

What if corporate decision makers lost money when they made bad decisions?

Back in January, criticizing the Supreme Court decision equating the free speech rights of corporations with those of individuals, I pointed out the insanity of considering corporate and other business entities as rational actors of the sort many economists consider people to be. The problem is that corporate decisions are made by individuals and are therefore driven to benefit those individuals, not the corporations (and their shareholders). As I wrote:

Individuals at AIG were making individual fortunes based on the income they were bringing into AIG for selling credit default swaps. Those individuals were making and would retain those fortunes even if, as turned out to be the case, AIG might not have sufficient funds to pay off the obligations those credit default swaps imposed on AIG. In other words, if one treated AIG as a rational person, one would suppose AIG would never expose itself to a real risk of obligating itself to pay more than it had in reserve. But AIG is merely a corporation, and the individuals actually making the decisions on behalf of AIG had every incentive to get what they could, subject AIG to irrational risk, and be able to walk away with their tens of millions of dollars.

I wasn’t just engaging in paranoia. I spent too many years with investment bankers to entirely forget their reality. And I have data to back me up:

In a study late last year, three Harvard Law School researchers examined public documents to assess whether one “standard narrative” of the crash was true — that “the meltdown of Bear Stearns and Lehman Brothers largely wiped out the wealth of their top executives.” It turned out to be a fairy tale. “In contrast to what has been thus far largely assumed, the executives were richly rewarded for, not financially devastated by, their leadership of their banks during this decade,” the Harvard Law team wrote. The top five executives at both Lehman and Bear collectively took home $2.4 billion in bonuses and equity sales — that’s nearly a quarter-billion dollars each — between 2000 and their 2008 demise.

Last week, William D. Cohan made much the same point in connection with the entire Wall Street ethic:

What if the biggest rewards on Wall Street went to those who thwarted dangerous and excessive risk-taking instead of to those who enabled, approved or simply ignored it?

What if every senior Wall Street executive had to worry that he could lose his entire net worth at any moment — including his mansions in Greenwich, Conn., and Palm Beach to say nothing of his job — if the revenue he was generating turned out to be unprofitable or excessively risky?

Wouldn’t that combination of potential rewards and fear of calamitous personal loss instill in every Wall Streeter a zealous desire to insist that the products his firm was peddling were safe for others to buy?

If such simple incentives had been in place on Wall Street, wouldn’t the latest crisis — as well as the multitude of others that have been perpetrated on us in the past 25 years — been largely avoided? . . .

The obvious answer to these questions is that human beings always do what they are rewarded to do and always have, especially on Wall Street. Rewarding prudent risk-taking on Wall Street while punishing recklessness would result in a new ethic on Wall Street, one not solely driven by generating as much revenue as possible in a given fiscal year with no regard to the long term.

To that end, shareholders must demand that corporate boards of directors revamp the entire compensation structure on Wall Street away from one based on revenue generation to one that rewards long-term profits. For goodness sake, what other business on the face of the earth, aside from Wall Street, pays out between 50 percent and 60 percent of each dollar of revenue generated to employees in the form of compensation!

And yet the Wall Street Journal’s stance on financial reform is the same as its stance on health care reform: “Once ObamaCare becomes law, the next big legislative rush is going to be for financial reform, but as we look at Senate Banking Chairman Chris Dodd’s latest draft we can’t help but wonder: Why the hurry?”

Indeed, why? There’s money still to be made . . .