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

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

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

What is an acceptable outcome in this matter?

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

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

(Hat tip to What about Clients?)

Street Smarts, Book Smarts, and Making them Work Together

Scott Berkun compares “book smarts” to “street smarts” and concludes: “street smarts kicks book smarts ass.”

I agree, though, as does Berkun, in saying so I do not intend to demean the importance of book smarts. Street smarts, as Berkun explains, is the knowledge born of experience:

To be street smart means you have situational awareness. You can assess the environment you are in, who is in it, and what the available angles are. Being on the street, or in the trenches, or whatever low to the ground metaphor you prefer, requires you learn to trust your own judgment about people and what matters. This skill, regardless of where you develop it, is of great value everywhere in life regardless of how far from the streets you are.

Most important perhaps, being street smart comes from experience.

To me the most compelling part of Berkun’s post is his insistence that to be street smart is to rely on your own judgment, not the answers someone else has set out for you and you’ve found:

The prime distinction between street smarts and book smarts is who is at the center of the knowledge. On the street, it’s you. In a book it’s you trying to absorb someone else’s take on the world, and however amazing the writer is, you are at best one degree removed from the actual experience. Street smarts means you’ve put yourself at risk and survived. Or thrived. Or have scars. You’ve been tested and have a bank of courage to depend on when you are tested again.

I would only add that making your own judgment the center of book learning will make the book learning itself more effective. And you don’t need the experience of decades to do so. If you read to find answers without evaluating, trying out, and considering alternative to those answers, the answers are just so many abstract symbols that are virtually impossible to translate into future action. But if you do bring your own judgment and imagination to reading, you can make your street smarts improve your book smarts, and those improved book smarts will in turn improve your street smarts.

Trying Proposition 8 as teachable moment

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

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

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

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

If you understand the uses and limits of maps, you can begin to understand the uses and limits of legal rules (and it doesn’t hurt to know the offside rules in soccer and hockey)

Jeff Lipshaw of Suffolk Law School has been asked to teach Suffolk’s six credit contracts course next year and has “been puzzling . . . about . . . teaching philosophy.” As he claims, “Contracts is the often the bane of the first year experience, and I am thinking about hitting the reasons head on.” I think Lipshaw’s point is the same I’ve been trying to get across frequently in this blog — learning law (and perhaps, especially, contract law)  is not a matter of learning rules you apply to the world, thence to go on your merry way as a lawyer who knows and understands law. Rules are useful guides, but different rules are useful in different situations; when a situation changes, a particular rule may be useless — it may be too specific, and not take into account specifics never contemplated when the rule was formulated, or it may be too general to be of any practical use.

Lipshaw writes (emphasis added):

I’ve concluded instead that the way to approach the subject (and relieve some student angst at the same time) is to reject at the outset the idea that what they are learning maps on the real world.  It is more helpful to think of contract law as most casebooks begin – with the idea of the objective law of contracts, or, as we say more explicitly in areas like partnership, the default rules upon which the legal consequences of a binding promise will be imposed on parties after the fact when indeed there is no subjective evidence of an intent to be bound at all, or legally, or on what specific terms. . . . Said with more jargon, contract law may or may not map well onto the reality of private ordering, and the mistake most students make is to try to make the map work. No – an integrated law of contracts, if one exists, is a figment of the . . . imagination, a way of trying to make unified sense of the whole of private ordering, whether that sense-making is by way of formalism or contextualism (or efficiency or the promise principle, to bring the debate forward in time).

Put otherwise, if the reality of private ordering is metropolitan Boston, contract doctrine is a map, based on the mapmaker’s view of what is important.  But you could have a road map of major highways, a topographic map, a detailed street map, a map of population densities, etc.  This is merely one map, or several competing maps. . . . .

Finally, the difficulty with putting aside whatever sense of reality we might have, and reconstructing the rules of the model (or game?) on their own is a little like trying to master the rules of cricket without making analogies to baseball, or the rules of rugby without making analogies to American or international football.  Let’s say you are playing cricket, and you do something that cause the other team to cry “foul!”  You have to make your argument why what you did was legal in cricket terms, not baseball terms.  That doesn’t mean there couldn’t have been other ways to play cricket, or that the world would be better off if we interpreted the rules of cricket differently, but to win the argument we have to fashion it in a way that appears to be consistent with cricket.  Contract law is the set of rules making up the objective contract litigation game, and some arguments based on those rules are cricket, and some are not.

A map that I draw you to get you to my house will likely be of little use in helping you navigate your way to other places in Ohio, but it will be very helpful as a means of getting you to my house. Then again, most maps of Ohio I’ve seen would be of little use in getting you to my house (which is on a road leading from one side street ending in 2 other side streets, none of which lead to a street (much less a highway) of any significance). And I could explain to you how being offside in soccer is akin to being offside in hockey, and doing so would help you understand the common purposes of the 2 rules (to avoid cherry picking), but when I’m arguing about being offside in soccer I better not be using rules and jargon from ice hockey.

Or, if you’d like to get even more involved in considering the role of maps in understanding the uses and abuses of rules, it’s well worth considering an article written by Boaventura De Sousa Santos, Law: a Map of Misreading. Toward a Postmodern Conception of Law, 14 J. of Law and Society 279, 282-283 (1987)(footnotes omitted; hyperlinks added):

UNDERSTANDING MAPS

The main structural feature of maps is that in order to fulfill their function they inevitably distort reality. The great Argentinian writer Jorge Luis Borges has told us the story of the emperor who ordered the production of an exact map ofhis empire. He insisted that the map should be exact to the most minute detail. The best cartographers of the time were engaged in this important project. Eventually, they produced the map and, indeed, it could not possibly be more exact, as it coincided point by point with the empire. However, to their frustration, it was not a very practical map, since it was of the same size asthe empire.

To be practical a map cannot coincide point by point with reality. However, the distortion of reality thus produced will not automatically involve the distortion of truth, if the mechanisms by which the distortion of reality is accomplished are known and can be controlled. And, indeed, that is the case. . . . As the American cartographer Mark Monmonier put it:

[A]ll advantages and limitations of maps derive from the degree to which maps reduce and generalise reality, compress or expand shapes and distances and portray selected phenomena with signs that communicate without necessarily resembling visible or invisible characteristics of the landscapes. The three elements of a map are interdependent. Scale influences the amount of detail that can be shown and determines whether or not a particular kind of symbol will be visually effective.

Maps should be convenient to use. There is thus a permanent tension in maps between representation and orientation. These are contradictory claims and maps are always unstable compromises between them. Too much representation may hinder orientation, as we saw in Borges’s map. Inversely, a very accurate orientation may result from a rather poor and elementary representation of reality.

When you are invited to a party in a house whose location you do not know, the host will probably draw a map which will be very effective in orienting you though very inaccurate in representing the features of the environment along the way to your destination. One more example: some of you may have seen medieval portolans, those maps of ports and coasts well-renowned in the Middle Ages which, though very poor as far as representation of the globe goes, were very effective in orienting navigators .at sea. There are maps that solve the tension between representation and orientation in favour of representation. These I would call, borrowing from French cartography, image maps. Other maps solve the tension in favourof orientation. These are instrumental maps.

I would like to suggest that this dialectic of representation and orientation applies to law as much as it applies to maps. In the analysis of .the relations between law and society we should [consider] the simple paradigm of correspondence/non-correspondence. In the following I will linger on maps a little while to analyse in more detail each one of the procedures through which maps distort reality. In the process I hope to interest you in the fascinating world of maps. As Josef Konvitz has said, “lt is a supreme irony that maps, though they are one ofthe most common cultural metaphors, are still far from occupying the place they deserve in the history of mentalities.”

One common distortion of which most of us remain unaware is the ways the traditional mercator projection of the map of the world grossly distorts the relative sizes of the earth’s various landmasses. Below is the Arno Peters map , which, as Sirius Bark of Temple 3 explains “isn’t perfect (every map (and rule) creates some distortion), but . . . does address some of the overall size distortions which dominate our more well-known Mercator projections” (emphasis and hyperlinks added):

Don’t let your clients send you emails from their employers’ email systems.

Mike Masnick at techdirt has an interesting item about a court decision that “personal emails sent from work computers can still be considered privileged and confidential as an attorney-client communication.” Masnick notes, however, that “[w]e’ve seen plenty of cases where courts have said that an individual has no expectation of privacy on emails sent from work.” And he realizes that the case he’s discussing isn’t the typical employee e-mail case; instead, “it dealt with a federal prosecutor who was fired, and is trying to claim that the firing was for his whistle-blowing. He was trying to access the emails of a US Attorney that he believes will reveal why he was fired. So it wasn’t a case of a company trying to review the email (which is normally the case in these types of lawsuits). And, as such, it makes sense.”

But Masnick has a more interesting question: suppose you e-mail your lawyer from your employer’s e-mail system — is your e-mail protected by the attorney-client privilege from disclosure to your employer? As Masnick wonders:

[W]hat would happen in a lawsuit where it was the employer looking at the material? If a company has a regular program of recording and examining employee email (as many do), then how would the issue be resolved? It would seem that, in such circumstances, it would make a lot less sense to consider the content protected, since the employer is not asking for it, but already has access to it.

I think Masnick is right that your e-mail to your attorney, sent from an e-mail system you know your employer has access to (pursuant to typical employee e-mail policies), is not subject to the attorney-client privilege. And if it’s not protected by the privilege, anyone who has a right to it as relevant evidence in a lawsuit will be able to get it, not merely the author’s employer.

Why? The mere communication between client and lawyer does not establish the existence of an attomey·client relationship ”It is of the essence of the privilege that it is limited to those communications which the client either expressly made confidential or which he could reasonably assume under the circumstances would be understood by the attorney as so intended.” McCormick on Evidence § 91 (4th ed. 1972).

Thus, to establish confidentiality, (1) “[t]he client must intend his communications with his attorney to be confidential, (2) [t]he client’s subjective intention of confidentiality must be reasonable under the circumstances, and (3) the confidentiality must have been subsequently maintained. A subjective expectation of privacy can sometimes be ascertained from the client’s express intentions.” Those intentions must be determined from the circumstances surrounding the communication. William P. Matthews, Encoded Confidences: Electronic Mail the Intemet, and the Attorney-Giant Privilege, 45 U. Kan. L. Rev. 273, 283 (1996).

In short, in considering whether the privilege applies, the courts focus on the precautions taken to preserve confidentiality and the parties’ “reasonable expectation of privacy.” Wendy R. leibowitz, Communication in the E·Mail Era: Deciphering the Risks and Fears, Nat’l LJ., Aug. 4, 1997, at B9.

Lawyers are like priests or doctors — you learn early on that your client’s confidence’s are sacred and that your knowledge of them will go to the grave with you. You learn too that disclosure of those confidences to third parties destroys them. So you don’t discuss client business on elevators, in subways, in taxis, on planes, in restaurants, in coffee shops, on crowded sidewalks . . . . You know a client’s “friend” who is along for moral support but not part of the case should not be present for discussions that should be kept confidential.

In short, you know that if there’s a reasonable likelihood someone else may be in on the communication (whether by listening in or by opening the letter or e-mail), the communication is not confidential. And it doesn’t seem to me that an employee has a reasonable expectation that someone else may not be “in on” the communications he makes via e-mail from work. As the Privacy Rights Clearing House puts it:

Is electronic mail private? What about voice mail?

In most cases, no. If an electronic mail (e-mail) system is used at a company, the employer owns it and is allowed to review its contents. Messages sent within the company as well as those that are sent from your terminal to another company or from another company to you can be subject to monitoring by your employer. This includes web-based email accounts such as Yahoo and Hotmail as well as instant messages. The same holds true for voice mail systems. In general, employees should not assume that these activities are not being monitored and are private. Several workplace privacy court cases have been decided in the employer’s favor. See for example: Bourke v. Nissan, Smyth v. Pillsbury, Shoars v. Epson.

In short, if you’re communicating with your lawyer in the course of what you consider a lawyer-client communication, don’t use your employer’s email system. You might just as well be speaking with your lawyer in the back seat of a taxi with the cabbie listening in.

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

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

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

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

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

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

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

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

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

AGREEMENT.

Hastings, Minn., June 1, 1883.

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

[Signed] J. H. Thompson,

Per D. S. Mooers.

R. C. Libby.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Protecting an artist’s legacy: maximize the income from his works, or seek to embody his art? Moral rights and the successors to John Cage.

One of the more remarkable “copyright” fights has, literally, been over silence. The copyright issues are interesting, but I’m particularly interested in the insights provided by Lewis Hyde that I recently came across and the way they bear on a lawyer’s duty to pay as much or more attention to a client’s heart and soul as it is to pay attention to a client’s legal rights and remedies.

The new information comes from the Official Blog of the John Cage Trust, a wonderful new addition to the blogosphere brought by the “not-for-profit organization founded shortly after Cage’s death to support and nurture his legacy.” As American Masters explains, Cage was not merely one of the 20th Century’s most important composers; his work and thought extends to every creative field:

His sense that music was everywhere and could be made from anything brought a dynamic optimism to everything he did. While recognized as one of the most important composers of the century, John Cage’s true legacy extends far beyond the world of contemporary classical music. After him, no one could look at a painting, a book, or a person without wondering how they might sound if you listened closely.

Cage was particularly interested in investigating composition through chance procedures. Thus, it is not surprising that the homepage of JohnCage.org points right now to “Eddie Kohler’s beautiful application devoted to John Cage’s Indeterminacy: New Aspect of Form in Instrumental and Electronic Music.” According to Stereophile (quoted on Amazon.com), Cage composed Indeterminacy by reading “90 stories, his speed determined by the story’s length. In another room, beyond earshot of Cage, David Tudor, pianist and veteran Cage collaborator, performed miscellaneous selections from Cage’s Concert for Piano and Orchestra and played pre-recorded tape from Cage’s Fontana Mix. The resulting collaboration is an astounding piece of ‘music,’ and a fine introduction to the innovations of John Cage. ‘A wonderfully curious way to hear stories.’”

Perhaps Cage’s most well-known work is 4′33″. Solonmusic.net describes the piece’s first performance and the audience’s reaction (footnotes omitted):

The first performance of John Cage’s 4′33″ created a scandal. Written in 1952, it is Cage’s most notorious composition, his so-called “silent piece”. The piece consists of four minutes and thirty-three seconds in which the performer plays nothing. At the premiere some listeners were unaware that they had heard anything at all. It was first performed by the young pianist David Tudor at Woodstock, New York, on August 29, 1952, for an audience supporting the Benefit Artists Welfare Fund — an audience that supported contemporary art.

Tudor placed the hand-written score, which was in conventional notation with blank measures, on the piano and sat motionless as he used a stopwatch to measure the time of each movement. The score indicated three silent movements, each of a different length, but when added together totalled four minutes and thirty-three seconds. Tudor signaled its commencement by lowering the keyboard lid of the piano. The sound of the wind in the trees entered the first movement. After thirty seconds of no action, he raised the lid to signal the end of the first movement. It was then lowered for the second movement, during which raindrops pattered on the roof. The score was in several pages, so he turned the pages as time passed, yet playing nothing at all. The keyboard lid was raised and lowered again for the final movement, during which the audience whispered and muttered.

Cage said, “People began whispering to one another, and some people began to walk out. They didn’t laugh — they were just irritated when they realized nothing was going to happen, and they haven’t fogotten it 30 years later: they’re still angry.” Maverick Concert Hall, the site of the first performance, was ideal in allowing the sounds of the environment to enter, because the back of the hall was open to the surrounding forest. When Tudor finished, raising the keyboard lid and himself from the piano, the audience burst into an uproar — “infuriated and dismayed,” according to the reports. Even in the midst of an avant garde concert attended by modern artists, 4′33″ was considered “going too far.”

Laura Kuhn, the Cage Trust’s Executive Director, graciously points readers to a excerpts from a conversation between Nicholas Riddle, general manager of Peters Edition, which owns the copyrights in Cage’s works, and Hyde, the author of an eagerly awaited forthcoming book on the “cultural commons.”  The part of the exchange between Riddle and Hyde Ms. Kuhn has posted concerns the work that became the focus of one of the more notorious copyright lawsuits of all-time, brought by Peters Edition against Mike Batts, a British composer. In the course of producing the album Classical Graffiti for the The Planets, Batts inserted a one minute silence between two sections of the album that were in radically different styles. According to Riddle, Batts said, “”I thought for my own amusement it would be funny to call it something, so I called it A Minute’s Silence and credited it as track 13, and put my name as Batt/Cage, as a tongue-in-cheek dig at the John Cage piece.’”

Subsequently, Batts’ “record company forwarded the [album] to MCPS, which was handling the mechanical royalties for these CDs. They then identified Cage’s 4’33” as the work in question and started to pay out pro rata royalties to [Peters Edition] as Cage’s publisher.” After Batts’ “homage” became the subject of newspaper reports, Peters Edition “agreed to a run-off between the Batt piece (performed by The Planets) and the Cage piece, performed at the clarinet by our London firm’s Head of New Music, Marc Dooley.”

As Riddle notes, the press described the subsequent lawsuit brought against Batts by Peters Edition as a claim that “Batts stole his silence from Cage.” I can’t say that I didn’t have precisely that impression. Riddle explains the lawsuit to Hyde differently — since Batts attributed the 1 minute of silence to Cage, he was either earning royalties for Cage’s work or identifying something as Cage’s work that wasn’t. Either way, he’d owe Peters Edition money:

The claim was nothing to do with stealing silence from Cage. The issue was entirely that Batt identified this silence as having Cage authorship, leading to a presumption that he was quoting in some sense from 4’33”, and was so successful in doing so that the collecting society started to pay out mechanical royalties for it. There were really only two options here: either, the track really was intended as a quotation from 4’33” or some other unidentified Cage work, in which case mechanical royalties were due; or, he was misappropriating Cage’s name in the context of a musical work, and that also would not do. He, after all, was the one who claimed it was Cage in the first place. Was he passing off something else as being by Cage, or was the work actually Cage? Since performances of 4’33” could be said in some sense to be self-identified as such, it was really his call.

As Hyde recognizes in his response to Riddle, the claim that identification of the minute of silence as a work by Cage was a “misappropriation” of Cage’s name to give value to a work it would not have had without that attribution is founded in the concept of “moral rights,” which are (except in very narrow circumstances not applicable to the lawsuit against Batts) not recognized in U.S. copyright law. As Hyde very concisely describes an artist’s moral rights, “such rights include the right of attribution, the right to prevent false attribution, and the right of integrity.”

I can understand why if one were talking about a conventional musical composition Riddle is right — Batts would owe money either because he had earned royalties from the sale, without permission, of a work that Cage had composed or, under the doctrine of moral rights, he had made money from a work that presumably sold in part because it had been falsely attributed to Cage.  Nonetheless, I cannot get my head around the idea that 1 minute of silence is a quotation of 4 minutes and 33 seconds of silence or that the attribution wasn’t a perfectly legitimate parody of Cage’s work rather than an effort to extract money from listeners who would mistakenly think they were listening to Cage’s silence, not Batts’. Even in a realm of moral rights there must be room for parody.

Nonetheless, to the shock of many, Batts settled the lawsuit and paid an undisclosed sum of money to the John Cage Trust. Riddle admits he is not at liberty to discuss the details of the settlement and writes that he and Batts did not discuss the reasons Batts agreed to the financial settlement, but he suggest that his own belief is that Batts as an artist recognized a need to acknowledge the legitimacy of the publisher’s claims:

[M]y personal take on this is that it is important to remember that Mike Batt is also a composer and that a significant part of his income is from royalties earned on his existing works. The same applies to CDs of his music or the music of the bands he creates and promotes. He is heavily invested himself in the concept of intellectual property and its value. And rightly so, in my view.

Hyde doesn’t dispute the merits of Riddle’s explanation of the legal bases of the lawsuit, but he does raise (in a remarkably gentle and respectful way) another entirely different doubt he has about the wisdom of the lawsuit. Hyde points to Cage’s Buddhist beliefs and convictions that his art was not a projection of his personality. In fact, moral rights are grounded in the idea that an artist’s creations are in some way embodiments and extensions of the artist: one violates an artist’s moral rights if one violates a work’s “integrity” by, for example, defacing it, because defacement of the work is in some sense a defacement of the artist. To attribute to an artist a work that isn’t by the artist is, in turn, to violate the artist’s identity by identifying the artist with something that is not the artist; an artist’s genuine work, in contrast, is the artist.

But Cage did not believe his compositions embodied or otherwise constituted extensions into the world of his identity. As Hyde writes, Cage was not interested in chance as a means of revealing the personality. He even wrote, “Personality is a flimsy thing on which to build an art.” Instead,

Cage was after [Jacques] Monod’s ‘absolute newness’ of pure chance. He was not out to discover any hidden self, nor did he think chance operations would reveal any hidden, already-existing divine reality, as ancient diviners thought. ‘Composition is like writing a letter to a stranger,’ he once said. ‘I don’t hear things in my head, nor do I have inspiration ….’”

If Hyde is right, then pursuing a claim that Cage’s moral rights had been infringed by Batts would be to assert a claim Cage himself did not believe in. If Cage had understood that, would he have refused to assert the claim? I think there’s a good chance of that. Would you sue someone for doing something you thought was a perfectly legitimate thing to do even if someone told you that if you sued them you’d get money? It’s important to understand that a lawyer represents the client, not the client’s abstract legal rights. But when someone’s rights pass to another (whether by contract, by trust instrument, by will, or otherwise), the new owner of the rights may have his own idea of what is important to protect.

How much is that successor bound by the original right’s holder’s understanding and intentions? That is a very, very interesting and difficult question. Hyde is suggesting, I think, that Riddle and Peters Edition were really watching out for the concerns of Peters Edition and not for the concerns of John Cage as an artist, that Riddle might have done far more to preserve Cage’s legacy than he did by extracting some money from Batts for the John Cage Trust.

Kids need to learn a lot, but they can teach us a lot too.

The information and communication revolution wrought by the internet is, among other things, a generational divider. While one generation bemoans the threat of the internet to newspapers and books, a new generation — the one I teach — appears to do the vast majority of its reading online. It is of course not all a matter of the younger generation having aptitudes for a new environment we old people resist adapting to. There is as much lost as is gained. (One of these days I’ll explore the loss I’ve noticed in researching skills, the ability to ferret out information that is not easily accessible or even immediately recognizable as important.)

But there is so much that is of great use in the new environment that too many of my contemporaries (and, also, too many of my students) don’t take advantage of. Social Media Law Student is a terrific site for helping us all find and learn how to use new tools. It’s run and written by law students. Yana Siganur writes today’s lead article, in which she takes the opportunity “to remind everyone of the efficiency that is Google” in a well-written and concise guide to a number of tools available from Google that can our professional lives easier.

Make your point and move on; Fairey lied, but AP won’t establish he always does.

As I’ve said over and over again, lying messes you up. It robs you of credibility, a problem which inevitably is going to infect the decision maker’s view of the merits of your case. But when facing a liar, you can get carried away by his lies and take your eye off your own case. AP seems prone to this danger in its case against Shepard Fairey. Having established Fairey lied about knowing which photo he used in creating the Obama Hope poster, AP is now contending that Fairey lied when he claimed in January 2009 that he didn’t recall which photo he used.

I’m not sure why AP is pushing this point. First of all, it does not bear on the question of fair use at the heart of the case. Second, they’ve just been successful in establishing Fairey’s a liar. What more do they want? It will be far, far more difficult — and, as far as I can imagine, impossible — to establish that in January Fairey didn’t remember which photo he used (rather than incorrectly claiming later, after he’d reviewed his materials in connection with the preparation of the poster, which precise photo he’d used). And it’s not as if AP doesn’t have its own problems with credibility that it should make every effort to avoid.

And, again, as I wrote previously over at Remix America: Fairey and AP’s counter-accusations of illegitimate conduct are interesting but really irrelevant to the question of fair use in connection with the Obama Hope poster. So is the possibility that Garcia is lying about being angry at Fairey when Garcia first realized that the source of the poster was his photo. Of course, Garcia’s failure to realize this fact until he was told, even though he was very familiar with the poster, may be relevant — if the photographer didn’t realize the source was his photo, isn’t that some evidence the poster so thoroughly transformed the photo it stands on its own as a creative work?

But, more to the point of this post: if Garcia didn’t realize in January the photo was the source of the poster, isn’t it credible that Fairey didn’t either? AP gained ground this week in outing a lie; now it may be trying to go to that tactic too often.

Teaching legal imagination: Harvard dean calls for it, I am grateful, but a lot of work remains.

Kristopher Nelson of in propria persona graduated from Harvard Law School in May and now is a graduate student in the history of science. He astutely observes that law school emphasizes training its students to practice law but does a rather poor job of actually doing so: “Law school . . . while pushing the prac tical, does not teach it.” As I’ve made clear, I think his criticism is particularly well placed when it comes to Harvard.

So I am happy to see that Nelson points to an article written by co-written by Martha Minow (pdf), the new dean of Harvard Law School, in which Minow and her co-author, Todd Rakoff, explicitly acknowledge that law students need more. What do they need? I think Minow and Rakoff are right to identify it as “legal imagination”:

[S]tudents need more, and they need more not for arcane or unusual careers, but simply to be good lawyers. While an expert in differentiating mental skills could probably produce a raft of labels for what they also need, when we think of what students most need that they do not now get, we think: “legal imagination.” What they most crucially lack, in other words, is the ability to generate the multiple characterizations, multiple versions, multiple pathways, and multiple solutions, to which they could apply their very well honed analytic skills. And unless they acquire legal imagination somewhere other than in our appellate-case-method classrooms, they will be poorer lawyers than they should be.

How will they be taught this legal imagination? By being given “cases” more like students are given in business school than students are given now in law school: complex problems in which the students are required to generate real world alternatives, recommend the best, and be evaluated on the quality of their judgment:

[T]he type of materials we have in mind can be described in general. Students ought to be presented with relatively dense materials that lay out a situation, experienced as a problem for a person, or group of people, for legal treatment. Students should face a choice that challenges them to identify options and that permits multiple resolutions, sometimes within a relatively tight ambit. Such resolutions might include issues such as which settlement offer would make it sensible to forego litigation. Sometimes these choices might be within broader (but still specifiable) alternatives, such as whether trying to get particular legislative language adopted would be feasible and preferable to private ordering. The problems ought not to be situated in one doctrinal area, but should present opportunities for mental maneuvering around the legal universe. Teaching should emphasize generating alternative solutions as well as appropriate grounds for choosing among them. And criteria for resolution should include legal, normative, and practical considerations.

Of course, Minow and Rakoff also believe that “following the business school model, we think that case writers will need to get their materials from practitioners.” Why isn’t this already going on throughout law school? One reason, I’ve always believed, is that law professors are those who have done best in law school (not necessarily, or even usually, as lawyers), so they perpetuate the existing institutional model in their belief that if law school has identified them as the best and brightest it must be well designed. Law professors are not unique in this tendency. Anyone who succeeds in an institution has a vested interest in believing the institution’s promotion procedures are very good at judging genuine merit. 90% of law firm partners will tell you their firm is better than most at judging associates. And Minow even recognizes this impediment to the change she calls for:

Law professors were good law students, and given the history of legal education, this means that they almost universally feel comfortable handling appellate opinions in the classroom even if they have no experience doing so in practice. By contrast, for many of us, the arenas of the legislature, the agency, the political movement, the media— perhaps even the trial courts—are ones we may only remotely watch. Ideally, case studies and teachers’ notes could be crafted so that they could be taught by professors as we know them in law schools as we know them. But, frankly, many of us will need to learn some new things.

I am thrilled that the dean of Harvard Law School is making these arguments. As goes Harvard, so goes virtually every law school in the country. But there is also another piece of the puzzle that needs to be put into place, as I’ve previously written about: how in the world can we measure whether we are effectively teaching “legal imagination”? In many ways I think I’m ahead of Minow in trying to do what she calls for. But until I can prove that what I am doing in fact teaches students how to be lawyers better, I’m afraid that I won’t have a ton of influence. Fortunately, Minow, merely because she is the dean of Harvard Law, can have influence even without first proving what she is arguing for works.

Credit Default Swaps and Mortgage Backed Securities: a Primer.

I’ve previously noticed Mark Labaton’s writing. Labaton is a lawyer in LA, and he writes with the kind of clarity and precision that is crucial to effective lawyering. In the most recent issue of LA Lawyer (pdf), he applies those writing skills — in the article entitled “Swap Meet” — to explaining “derivatives,” those financial instruments central to our current economic disaster. I’ve tried to do a similar thing here a few times (here, for example), but Labaton’s account is much more comprehensive. It’s an important piece. I can’t say enough to my students that they have to reject any idea that the stuff they have to face is too complicated for them to understand. We were told again and again that credit default swaps were too complicated to understand (see below, from a CNBC Telecast in November 2006). That’s hogwash. Accepting the myth our financial markets were dealing with risks too complicated for anyone to understand (even the most active participants in the markets!) put us in this mess an is keeping us from getting out of it as quickly or effectively as we might. Labaton not only understands this point, he also provides a very useful explanation for the rest of us.

Lying messes you up. Polanski, the rapist, and the lying prosecutor.

One thing potential witnesses have to understand about lying is that every lie creates problems regardless of whether the lie itself is found out. Every lie requires every statement after the lie — for an indefinite period of time — to account for the lie. If you say something after the lie inconsistent with the lie, you’ve got real problems. Which is the lie? The new statement? The old lie? Who is going to know, and who is going to believe anything you say?

I’m reminded of this problem with lies today because of a story Marcia Clark writes about one of the prosecutors in the Roman Polanski rape case back in 1977, after Polanski had entered a guilty plea to engaging in unlawful sexual intercourse with a minor and was awaiting what he hoped, and apparently expected, was a sentence that would not include jail time. As the Wall Street Journal Law Blog writes, “According to a 2008 documentary, called Roman Polanski: Wanted and Desired,  . . . a Los Angeles prosecutor named David Wells confessed to buttonholing the judge [presiding over Polanski's case] — out of the presence of Polanski’s lawyer — and convinced him to impose a sentence that included prison time.”

Lawyers cannot communicate with judges regarding pending cases outside of the presence of the lawyers for the other parties. It’s a major no, no, and Wells’ admitted misconduct no doubt is part of Polanski’s opposition to extradition.

But now, according to Clark, Wells recently told her:

I lied. I know I shouldn’t have done it, but I did. The director of the documentary told me it would never air in the States. I thought it made a better story if I said I’d told the judge what to do. . . . Look, after 30 years, I never thought they’d get the guy back here. I figured no one cared anymore, and no one here would ever see the film anyway. What can I say? I don’t have a better reason than that. It seemed like a good idea at the time.

Clark believes Wells. I don’t know what to believe. Was he lying in to the filmmakers or is he lying today? Why would a prosecutor tell a lie to filmmakers that would show him to be unethical? He has more reason to lie today — now there’s attention to the unethical conduct he confessed to on film, and the extradition of a rapist is at stake.

And, frankly, I don’t consider Marcia Clark the most reliable judge of anything. Don’t get me going, but the reason for the O.J. verdict to my mind was, purely and simply, incompetent lawyering  by the prosecution.

If a county court in Georgia can take adavantage of a website and do it well, so can you.

Justice Serves, for the 11th consecutive year, names the Top Ten Court Websites.

What do they have in common? They’re well organized, making it easy for anyone to find exactly what they need on the site. They provide online services that eliminate pointless trips to inconvenient locations. (Courthouses aren’t the centrally located public oases they once were. Have you ever attended traffic court in a strip mall 50 miles away? I have.) And they make rules and procedures that inspire dreams of Kafka plain and obvious.

Three cheers to the State Court of Chatham County, Georgia.

Lawyers do the best they can for clients; I wish law professors realized that’s what lawyers should always do.

As someone who has practiced over ten years and taught over ten years I am particularly sensitive to the divide between legal practice and legal academia, and I am partial to the legal practice side of the debate. It’s not that a lot of law professors don’t do a lot of good things; rather, it’s that too many law professors and too much legal education proceeds as if the world of practice is irrelevant. In fact, I am convinced that legal education and legal theory divorced from the application of law in practice is meaningless. Law does not exist except as it has the potential to affect the real world (unless you’re talking about religious law).

And it is fundamental to the practice of law that the first and primary responsibility of the lawyer is to the client’s best interests. When you start treating the client merely as a means to raise intellectual issues you find of greater interest you’re doomed to get in trouble.

Charles Nesson is a good example of a law professor who doesn’t understand how to be a lawyer. Nesson ignored the advice of many who are sympathetic to the plight of file sharers in conducting his defense of Joel Tenenbaum, a case which resulted in a $675,000 verdict against his client. There were many who considered Nesson’s defense bad lawyering, including myself. Blue Mass Group even asked whether he was “the worst lawyer ever” in a post that supported the legitimacy of the question with examples from the case:

[T]hrough the course of the litigation, Tenenbaum gave sworn statements that he then contradicted at trial. And in a dramatic moment, it seems that at the end of his testimony, just before the verdict, he actually admitted liability, causing the judge to find him liable and the leave only question of damages for the jury to decide. Who prepared Tenenbaum to testify? Did anyone bother?

It also seems that Professor Nesson made audio-recordings of depositions in the case–perhaps for use in the classroom?–without the knowledge of the lawyers on the other side of the case. This is potentially a crime, as well as an apparent violation of the Rules of Civil Procedure, which require a lawyer taking a deposition to notify the other side of the method to be used to record it (though perhaps if Professor Nesson was recording depositions taken by the other side, he would not be in violation of the rule–I’m not sure).

Now, Professor Nesson says he will appeal on the judge’s failure to instruct the jury on fair use. I’m not a copyright law expert, but I’ve heard others describe this issue as likely to lose.

In any case, it seems clear to me that Professor Nesson did not really act to protect Tenenbaum’s interest. This twenty-something graduate student is now facing bankruptcy when he could have settled the case for next to nothing.

More support for the criticism of Nesson’s job defending Tenenbaum comes today with the news that the judge in Tenenbaum’s case ordered defendants who did not even bother to defend file sharing charges to pay the minimum penalties allowed under the Copyright Act, prompting Ars Technica to point out that Tenenbaum and others like him “would have been far better off monetarily if they had simply ignored the complaint altogether and failed to show up in court.”

The sad part is Ars Technica is right — sometimes bad lawyering is worse than no lawyering.

Nesson’s response to criticism that he ignored defenses and other strategies he might have used to minimize Tenenbaum’s liability? He writes, without an ounce of apparent regret: “these defenses do not join the fundamental issues. this trial was not an exercise in getting joel off the hook.”

That’s precisely my point. If you treat a case as a means to an end and are willing to sacrifice the client’s best interests to get to that end, you are not doing your ethical duty as a lawyer. If you insist on a jury, make legal arguments there is no good reason to think will prevail, allow your client to lie in pretrial testimony and go ahead and put him on the stand anyway, flout good sense in recording hearings without having gotten the judge’s permission to do so, and then go and post those recordings on line, is it any wonder your client ends up paying a big price?

As I indicated in my last post (and numerous times on this blog and elsewhere), I am convinced the RIAA’s campaign to sue file sharers is misbegotten as a practical, business matter. I’ve even gone out of my way to try to help Nesson. (See also here.) That doesn’t mean that Nesson is a noble guy in sacrificing his client to what he considers a greater cause, and a lawyer should know better.

Copyright and Good Judgment: Damien Hirst, Idiot.

In England, a 17 year old artist named Cartrain created a collage that included an image of Damien Hirst’s diamond encrusted skull, a work entitled “For the Love of God.” As the Independent reports: “The collages were put up for sale on a website, 100artists.com. Hirst reported him to the Design and Artists Copyright Society and a string of legal letters were sent to Cartrain’s art dealer, Tom Cuthbert, at 100artworks.com, about the teenager’s pieces, also called For the Love of God. The online gallerysurrendered them to Hirst with a verbal apology.” So, in July, Cartrain walked into a museum showing some of Hirst’s works and walked off with a box of pencils from one of the installations. As Cartrain explained, “That same day I made up a fake police appeal poster advertising that the pencils had been removed from the Tate and that if anyone had any information they should contact the police on the phone number advertised.” “A few weeks later I went out and I returned home to find out the art and antiques squad from New Scotland Yard had called round with a warrant for my arrest.” According to the Independent, Cartrain “was told by custody officers that the pencils were valued at £500,000 and that he had damaged ‘the concept of a public artwork titled Pharmacy … valued at £10,000,000.’ Cartrain is on bail and, if convicted, his actions will feature among the highest value modern art thefts in Britain. Does Damien Hirst have the right to foreclose the use of images in which he owns the copyright from collages? Plainly, I don’ t think so. But it’s also one of those situations in which I’d tell a client to just back off. Reportedly, Hirst sold the skull for $100 million. The image is ubiquitous. I know I’ve sent it to friends as part of an app on Facebook. Do you, I’d ask, really need to be so heavy-handed in connection with a kid trying to get his start as an artist? (hat tip to Techdirt)

Applying the law to the facts — where empathy must be part of judging.

There’s been a lot of argument recently about President Obama’s rather innocuous statement that “empathy” is a big part of judging. Thus, I wasn’t surprised that Sonia Sotomayor insisted that all she does is apply the law to the facts in acting as a judge. And, in fact, one of the things I’ve been impressed by in her decisions and statements is her emphasis on facts. Too many law professors and commentators focus on the law as a set of abstract principles and theories rather than what it is — the judgment of how the laws apply to the specific circumstances of the specific case they happen to be judging.

But I think it’s precisely in the importance of facts that empathy does play a part. One judge will consider a given fact crucial, while another judge won’t, and that difference will make a difference in judicial outcomes. In 2008, the Supreme Court upheld Indiana’s requirement of a government-issued identification card to vote. The majority opinion, written by Justice Stevens and joined by Justice Kennedy and Chief Justice Roberts (he who told the Senate in his confirmation hearings that he judges by merely “calling balls and strikes”), stated that “the fact that public transportation is not available in some Indiana counties tells us nothing about how often elderly and indigent citizens have an opportunity to obtain a photo identification at the BMV, either during a routine outing with family or friends or during a special visit to the BMV arranged by a civic or political group such as the League of Women Voters or a political party.” In his concurring opinion, Justice Scalia, joined by Justices Thomas and Alito, wrote that “[t]he burden of acquiring, possessing, and showing a free photo identification is simply not severe, because it does not “‘even represent a significant increase over the usual burdens of voting.’”

In contrast, in one of the dissenting opinions in the case, Justice Breyer considered the burden imposed by the voter i.d. requirement far more significant, seeming to perhaps even “emphasize” with specific types of voters:

For one thing, an Indiana nondriver, most likely to be poor, elderly, or disabled, will find it difficult and expensive to travel to the Bureau of Motor Vehicles, particularly if he or she resides in one of the many Indiana counties lacking a public transportation system. See ante, at 6-7 (Souter, J., dissenting) (noting that out of Indiana’s 92 counties, 21 have no public transportation system at all and 32 others restrict public transportation to regional county service). For another, many of these individuals may be uncertain about how to obtain the underlying documentation, usually a passport or a birth certificate, upon which the statute insists. And some may find the costs associated with these documents unduly burdensome (up to $12 for a copy of a birth certificate; up to $100 for a passport). By way of comparison, this Court previously found unconstitutionally burdensome a poll tax of $1.50 (less than $10 today, inflation-adjusted). See Harper v. Virginia Bd. of Elections, 383 U. S. 663, 664 n. 1, 666 (1966); ante, at 30 (Souter, J., dissenting). Further, Indiana’s exception for voters who cannot afford this cost imposes its own burden: a postelection trip to the county clerk or county election board to sign an indigency affidavit after each election. See ante, at 8-10 (same).

Both sides are looking at facts. Both sides are applying the same rules (which require, among other things, looking at the burden imposed by the state by its requirements for voters). They are coming to very different views of the matter. Is empathy at work? Of course it is, but it is inescapable too.

Paris Hilton as law professor: each judge is your BFF, and remedies are everything.

Knowing the law and being a lawyer are two entirely different things. If something is illegal, does that mean you can’t do it? That would mean you can’t drive 26 mph in a 25 mph zone. In other words, it’s not about whether something is legal or illegal; it’s about consequences, remedies. If you’re in breach of contract, it doesn’t matter much if the party suing you doesn’t have proof that your failure to live up to your promise actually caused the harm you’re thinking of.

Paris Hilton understands that. She also understands how to get a judge on her side. As Law.com reports, “Hilton flirted with a Miami federal judge and mentioned her Zodiac sign as she testified Friday in a civil trial seeking the full production cost of the box office bomb “Pledge This!” for allegedly scanty promotional work.” The plaintiff in the case is “Worldwide Entertainment Group, which was seized by federal regulators as a Ponzi scheme after producing Hilton’s 2006 movie.” Hilton is arguing that she fulfilled all her contractual obligations to promote the film and that her schedule is booked months in advance. To illustrate, she explained that last week she was filming her new reality show, “My New BFF,” in Dubai. “This prompted Moreno to ask what ‘BFF’ stood for. Hilton explained the acronym is short for ‘best friend forever’ and added, ‘You’re my best judge forever.’ Spectators applauded.”

Hilton’s lawyer is arguing not only that she fulfilled her contractual obligations, but also that even if she didn’t the World Wide Entertainment can’t show her failure to do so is the reason the film only made $2.9 million in theatrical release. The judge, apparently won over by Paris, seemed open to that argument — “Moreno said even if he finds Hilton could have done more to boost the movie, he doesn’t know how he can translate that into damages. ‘I know even some of the greatest actors flopped in the movies economically,’ he said.”

The Madoff Investigation Should Focus on the SEC.

Ever since the Bernie Madoff scandal broke, I’ve wondered: was the SEC paid off? It’s hard to believe the SEC could have investigated Madoff as it did, see what anyone who looked closely could see, and not dig sufficiently to uncover the fraud. And a story today from the Washington Post only adds gasoline to the fire of that suspicion. An SEC lawyer told her superiors in 2004 that “information provided by Madoff during her review didn’t add up and suggest[ed] a set of questions to ask his firm.” She was instructed in response to focus on other matters. And her immediate supervisor’s boss later married Madoff’s niece!

The suspicious SEC lawyer, Genevievette Walker-Lightfoot, “had previously worked at the American Stock Exchange, where she developed an expertise in specialized trading strategies.” After she was diverted to other matters, she never was asked about the Madoff investigation again, even during an agency investigation into Madoff in 2005 which only “found three violations of minor rules.” In 2006, Walker-Lightfoot left the SEC after filing a complaint with the agency alleging that she’d been subjected to a hostile workplace. A person familiar with the complaint said it was settled in Walker-Lightfoot’s favor.”

Madoff, incidentally, once “boasted at a business roundtable discussion about his close relationship with SEC regulators, saying “my niece just married one.”

Did Apple Mislead Investors Regarding Steve Jobs’ Health? Almost certainly, yes. Then why did it not disclose the medical facts? (Part I)

Steve Jobs had a liver transplant last week, and, the L.A. times and others report, the “doctor who led the transplant team said this week that Jobs was ‘the sickest patient on the waiting list’ at the time a donor liver became available.” All Apple had earlier disclosed to the public regarding Jobs’ health was set forth in 2 statements written by Jobs and posted on Apple’s website posted last January. The first, in connection with his widely reported drastic weight loss in 2008, stated that “my doctors think they have found the cause—a hormone imbalance that has been ‘robbing’ me of the proteins my body needs to be healthy. Sophisticated blood tests have confirmed this diagnosis. The remedy for this nutritional problem is relatively simple and straightforward, and I’ve already begun treatment. But, just like I didn’t lose this much weight and body mass in a week or a month, my doctors expect it will take me until late this Spring to regain it. I will continue as Apple’s CEO during my recovery.” (emphasis added) The second letter, posted one week later, stated that “during the past week I have learned that my health-related issues are more complex than I originally thought. In order to . . . focus on my health, and to allow everyone at Apple to focus on delivering extraordinary products, I have decided to take a medical leave of absence until the end of June.” (emphasis added) In April, “[a]ccording to unnamed sources . . . Jobs continue[d] to work on the “most important strategies and products from home,” though Apple’s only official statement was that “Steve continues to look forward to returning to Apple at the end of June.”

Inevitably, people are asking a question lawyers representing a company whose stock is traded on public exchanges always have to ask themsevles about any facts that might affect the company’s’ value: is the information “material”? On the one hand, the L.A. Times story states: “Companies are not required to divulge medical details about executives, lawyers said.” But the story also quotes a lawyer stating that “If [Apple] tried to lessen the disclosure and make it misleading by omission, that’s just as bad as telling something that flat isn’t true . . . . ” And Warren Buffet is quoted stating: “Certainly Steve Jobs is important to Apple. . . Whether he is facing serious surgery or not is a material fact.” (emphasis added).

What’s going on? What information is “material” and therefore has to be disclosed to the public by a publicly traded company? Well, Neil Lipschutz is right that “something is material if ‘there is a substantial likelihood that a reasonable shareholder would consider it important” in making an investment decision. Also, if there was a substantial likelihood a reasonable investor would think the information ’significantly altered the total mix of information available’ about a company.’”

Do we have anything better to guide us than (1) what seems a terribly subjective test, (2) the gut reactions of lawyers and of Warren Buffett, and (3) the almost certain fact that Apple, after close consideration of the facts and the law by its lawyers, made the business decision that the risks and probabilities of disclosure last January (or at any time between when Jobs first got sick and now) were outweighed by the risks and probabilities of liability for securities fraud if and when its lack of candor became known?

Well, if what you’re seeking is guidance in the way beginning law students and most non-lawyers want the law to provide guidance — articulation of rule that makes it easy to decide the question — the answer is a resounding NO. These are judgment calls based on the specific evidence of each case. In order to determine if a set of facts would matter to an investor, you need to look at those specific facts. And plainly I have not had available to me all the evidence that might eventually be considered to judge the question in this case. But there is a lot available, and based on only that, I have to agree with Warren Buffet that the fact Steve Jobs was so ill he required a liver transplant certainly is material.

But, again, my certainty is not a product of pointing to a “law” and having you nod your head in agreement. I have to look at the specific evidence regarding Apple, the law, and the facts in the cases in which courts have concluded that events are material and in which courts have concluded the events are not material. By doing that, I hope I can convince you that my certainty is well founded. That’s the best I can do.

Moreover, that’s not the end of the lawyer’s job. Even if the lawyers concluded that the facts regarding Jobs’ health prior became “material” at any time before the next week would not mean Apple necessarily would disclose those facts. Apple’s lawyers would have to consider what potential downside its failure to disclose those facts would present and the likelihood that downside would occur. Then Apple, not the lawyers, would have to decide if those risks and probabilities would outweigh the likelihood and degree of the impact disclosure would have on Apple’s value.

There are a number of rules under which a publicly traded company is obligated to disclose “material” information to the public or face criminal and civil liability, but the definition of “materiality” is the same under all of them. One is a regulation known in the trade as “Rule 10b-5″ [17 CFR 240.10b-5], which makes it a crime and a civil wrong for any a company or an individual purchasing or selling stock “to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, . . ” As the United States Court of Appeals for the 2d Circuit stated in SEC v. Texas Gulf Sulphur Co., 401 F.2d at 833, 848 (2d Cir. 1968), this requirement to disclose material facts is based “on the justifiable expectation of the securities marketplace that all investors trading on impersonal exchanges have relatively equal access to material information . . . .” The requirement originates in the Securities Exchange Act of 1934 (15 U.S.C. § 78j(b)), one of the keystones of the New Deal passed in response to the practices prevalent on Wall Street that had led to the 1929 stock market crash.

As the court further stated in Texas Gulf Sulfur, “[t]he basic test of materiality * * * is whether a reasonable man would attach importance * * * in determining his choice of action in the transaction in question.” Thus, material facts include any facts “which affect the probable future of the company and those which may affect the desire of investors to buy, sell, or hold the company’s securities.”

The defendants in Texas Gulf Sulfur had argued that tests showing one of their company’s mines was likely a rich one were not material because there was nothing certain to report until mining had actually begun and there was more certainty than the tests could provide.  The Second Circuit rejectted their argument, ruling that even possibilities that never occur might be material. One must look at the probability the fact would have an impact on the company’s value and the magnitude of that potential impact: “whether facts are material . . . will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.” 401 F.2d at 849. Thus, the court reversed the trial court’s decison to dismiss the criminal charges against the defedants because, the Second Circuit decided, they would be guilty if it were true that they had failed to disclose “the possibility, which surely was more than marginal, of the existence of a mine of the vast magnitude” as a result of a “remarkably rich” sample taken  ”close to the surface (suggesting mineability by the less expensive openpit method) within the confines of a large anomaly (suggesting an extensive region of mineralization).” That mere “suggestion . . . would certainly have been an important fact to a reasonable, if speculative,  investor in deciding whether he should buy, sell, or hold” stock in the mining company the defendants controlled. Id. at 849-50 (emphasis added).

The U.S. Supreme Court expressly adopted the Second Circuit’s test in 1988 in Basic, Inc. v. Levinson, 485 U.S. 224 (1988), a case in which the Court determined that corporate insiders might have had the duty to disclose negotiations for a corporate merger before the merger was concluded. Some courts outside the 2d Circuit prior to that time had ruled that a deal didn’t have to be disclosed until it was a binding deal. The Supreme Court rejected the reasoning of those courts and made plain that an event that might not ever happen nevertheless might at some point be likely enough and big enough that it would affect a reasonble investor’s investment decisions.

So the questions Apple’s lawyers had to be asking themselves all the time ever since they learned in 2004 that Jobs had pancreatic cancer, are the following:

(1) Is Jobs so important to Apple that an investor would make a decision to sell, buy, or hold on to Apple stock based on his ability to do his job?

(2) Do the medical facts demonstrate with sufficient probability that Jobs’ condition is threatened enough that those facts would cause an investor to sell, buy, or hold on to Apple stock?

(3) Did Apple’s words or omissions mislead reasonable investors in evaluating whether Jobs could continue to do his job well enough to not affect their investment decisions.

Let’s get the easy stuff out of the way. Jobs’ health and its impact on his ability to do his job  are so plainly material that to argue otherwise wouldn’t pass the “giggle test.”  I would therefore, if I were representing Apple in litigation, advise the company simply to admit this point in the answer to any complaint anyone filed. To admit the point would at least minimize attention to something that, if Apple did dispute it, would only increase attention to a weakness in the company’s case. But just in case you think I don’t understand when it’s smart lawyering to concede a point, remember these things — someone’s own words are taken by a court as “admissions.” In other words, if someone admits something that is harmful to his legal position, the court will assume the facts are at least that bad. In the letter posted online last January, addressed to the “Apple Community,” Jobs ended with this: “So now I’ve said more than I wanted to say, and all that I am going to say, about this.” I’d love to ask him in a deposition why, if he didn’t want to write what he wrote, he did. The probelm, if Apple had decided to dispute the materiality of Jobs to the company’s value, is that he’d have to deny and dance around the obvous: his lawyers told him he had to write the letter because his health and its impact on his capacity to do his job is material to Apple’s shareholders and potential shareholders.

Don’t assume I haven’t considered the arguments I could make on Apple’s behalf on this point — I could point out, for example, as MacNewsWord did yesterday, that since January, when Jobs wrote the letter he didn’t want to write, Apple stock has almost doubled in value. The Apple loving outlet implied that market shows that investors have been confident that Apple was fine without Jobs:  ”This could be due to general belief among investors that Apple has a good management team in place which has kept the company running on an even keel despite the CEO’s absence.”  Or it could mean the market had already accounted for Jobs’ illness.  Or it could be that the market is driven by unreasonable investors.  It could be for any number of reasons. Regardless, I am convinced  that a strategy to fight a securities fraud case on the grounds that Jobs isn’t important enough to be material to Apple is not going to make winning the case more likely. I could go on and on . . . Last October, just to take at random one piece of evidence easy to find via a mere Google search, (according to CSnews) “Some individual had posted a fake report . . . claiming Steve Jobs had suffered from a heart attack and was rushed into the hospital. As a result, Apple’s stock made a 10% nosedive.”

NEXT: (a) was Jobs’ health so dire its specifics would have made a difference to people thinking about buying, selling or holding on to Apple stock, (b) did Apple’s statment’s or silences mislead investors about Jobs’ health, and (c) why would Apple choose not to disclose specifics regarding Jobs’ health even if its lawyers were telling it that those were material facts?

The EFF surely wants Jammie Thomas not to settle at any price, while the RIAA, even though it won $1.92 from a jury, surely wants her to, likely for any price.

Mike Masnick of Techdirt reports that the RIAA is anxious to settle the case in which it won $1.92 million from Jammie Thomas-Rasset for illegally downloading 24 songs. As Masnick writes, the RIAA “seems to recognize that the insanity of the $1.92 million doesn’t do it any favors. Even the musicians whose music was part of the case are embarrassed by the amount. . . . the RIAA would love to settle the lawsuit for some lower amount so it can run around touting the ‘risks’of file sharing without having people laugh outloud when hearing that someone had to pay $1.92 million for potentially sharing 24 songs that could be bought for $1 each.”

Masnick writes too that he’s been expecting Jammie Thomas to settle “but the longer this goes on, the more I wonder if she’s actually planning to fight on. If so, this could certainly represent a case to examine the statutory rates associated with copyright violations.”

Mike is more right than he may know. Any lawyer interested in challenging the constitutionality of the statutory penalties imposed by the Copyright Act would want to represent Jammie Thomas on this appeal. When a lawyer looks to challenge a law, if he’s got any sense he doesn’t challenge it via any case that happens to come up. He chooses a case that presents especially good facts for the challenge. The EFF would love to have Jammie Thomas appeal – no case involving a defendant found liable for illegal downloading would be a better vehicle for bringing the challenge to the statutory penalties.