Lynn Cheney and William Kristol are anti-American.

Walter Dellinger, a partner with O’Melveney & Myers, and former head of the Office of Legal Counsel, writes today (in relation to my passionate rejection of Lynn Cheney’s attack on lawyers who represented Guantanamo Detainees):

It never occurred to me on the day that Defense Department lawyer Rebecca Snyder and Lt. Cmdr. William Kuebler of the Navy appeared in my law firm’s offices to ask for our assistance in carrying out their duties as military defense lawyers that the young lawyer who worked with me on that matter would be publicly attacked for having done so. And yet this week that lawyer and eight other Justice Department attorneys have been attacked in a video released by a group called Keep America Safe (whose board members include William Kristol and Elizabeth Cheney) for having provided legal assistance to detainees before joining the department. The video questions their loyalty to the United States, asking: “DOJ: Department of Jihad?” and “Who are these government officials? . . . Whose values do they share?”

. . .

That [the lawyers] in question would have their patriotism, loyalty and values attacked by reputable public figures such as Elizabeth Cheney and journalists such as Kristol is as depressing a public episode as I have witnessed in many years. What has become of our civic life in America? The only word that can do justice to the personal attacks on these fine lawyers — and on the integrity of our legal system — is shameful. Shameful.

Requiring licenses for artistic appropriation has nothing to with providing incentives to create.

I’ve been pretty passionate in this blog in expressing my belief that art that appropriates copyrighted work does not infringe the copyrighted work provided the new work stands sufficiently on its own as a creative work. To stand on its own in that way, the new work is one that isn’t attracting an audience merely because of its appropriation of the earlier work. The fact it uses the the copyrighted work to convey meaning through the use of symbols and allusions is no different than the way new, original art has always used the meaning culture attributes to earlier work. Art builds on art.

The counter-argument to my position is that artists need to make money to be able to create art, and if an appropriator can pay for a license, why shouldn’t he? First, merely asking for a license is not the same as obtaining one. Second, the most meaningful pieces of art in our culture are the most successful, and licenses for the use of those works are not likely to be within the financial means of most artists. Third, why should you have to ask for a license to make something new from something someone already has made money from (or as much as their work earned in the market)?

But now Malcolm Gladwell goes right to the heart of the most compelling argument copyright holders have against un-licensed appropriation — that the financial remuneration is an incentive necessary to the creation of art in the first place. Gladwell writes:

Dan Pink is best known for a number of really insightful business books, including “A Whole New Mind.” In “Drive,” he tackles the question of what motivates people to do innovative work, and his jumping-off point is the academic work done over the past few decades that consistently shows that financial rewards hinder creativity. These studies have been around for a while. But Pink follows through on their implications in a way that is provocative and fascinating. The way we structure organizations and innovation, after all, almost always assumes that the prospect of financial reward is the prime human motivator. We think that the more we pay people, the better results we’ll get. But what if that isn’t true? What the research shows, instead, is that the great wellspring of creativity is intrinsic motivation—that is, I do my best work for personal rewards (out of love or intellectual fulfillment) and not external motivation (money).

Maybe you don’t think much of this blog, but I’ve written it now for 18 months and haven’t seen a penny in return. The best writers I know scramble to make their livings through their writing, teaching, parlaying their writing into other creative projects, and whatever else can come their way. I’ve known artists my entire life. I’ve known a few who’ve had vast success, but they are a tiny, tiny minority. The artists I know won’t stop creating if they’re not paid for transformative appropriations of their works.

Article 1, Section 8 of the U.S. Constitution sets for the basis of Congressional power to create laws to protect copyright. It states:

The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; . . . (emphasis added).

It does not state:

The Congress shall have the Power . . . To further the capacity of authors and inventors to extract any and all value that exists in their creations, by securing for a time in excess of the lifetimes of these Authors and Inventors the exclusive right to their respective writings and discoveries; . . .

Thank god for our founding fathers — John Adams, honorable lawyer.

Whose values do the lawyers for Guantanamo detainees share? John Adams’, for one:

John Adams, in his old age, called his defense of British soldiers in 1770 “one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.” That’s quite a statement, coming as it does from perhaps the most underappreciated great man in American history.

The day after British soldiers mortally wounded five Americans on a cobbled square in Boston, thirty-four-year-old Adams was visted in his office near the stairs of the Town Office by a Boston merchant , James Forest. “With tears streaming from his eyes” (according to the recollection of Adams), Forest asked Adams to defend the soldiers and their captain, Thomas Preston. Adams understood that taking the case would not only subject him to criticism, but might jeopardize his legal practice or even risk the safety of himself and his family. But Adams believed deeply that every person deserved a defense, and he took on the case without hesitation. For his efforts, he would receive the modest sum of eighteen guineas.

So when Lynn Cheney’s group, keepamericasafe.com, suggests that there’s something un-American about the fact that lawyers in the Justice Department have defended Guantanamo detainees, the real question is this: why is keepamericasafe.com spouting the un-American propaganda that those accused of wrongdoing are not entitled to a defense and to requiring proof of their wrongdoing? In fact, as Adam Serwer reports,

Lt. Col. David Frakt, who has represented detainees both in military and civilian courts, said that the lawyers who secured due process rights for detainees were ultimately vindicated. “There is an assumption there that has proven to be a fallacy, which is that everyone at Guantanamo was a terrorist,” Frakt says, pointing to the fact that the government has lost three-quarters of the habeas petitions filed by detainees at Guantanamo. “What we have seen over and over and over is that the vast majority of detainees at Guantanamo are innocent.”

This is, in short, ugly, anti-American propaganda:

Our capacity to be just is measured by our capacity to do justice to those most in need of it.

The only way to do justice is to provide opportunities for justice. 50 years ago, in Gideon v. Wainwright, the Supreme Court ruled that a criminal defendant has a constitutional right to representation by a lawyer and that, if he cannot afford one, the state must provide him with one. Now, with our states and local governments starving for money, this foundation of our justice system is sorely threatened. Two lawyers whose careers have been devoted to these issues, Virginia Sloan and (my good friend) Cait Clarke, write:

The report of the Constitution Project’s National Right to Counsel Committee, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, is the most comprehensive examination of the indigent defense crisis in over 30 years. The Committee, whose members represent every relevant part of the criminal justice system, including prosecutors, judges, victim advocates, defenders, bar leaders, and scholars, unanimously concluded that this country’s indigent defense system is in crisis, that the government has for too long ignored its obligation to provide lawyers in these cases, and that it cannot be ignored anymore. The report outlines 22 urgently-needed recommendations for reform.

One of the most important recommendations is that indigent defense should be provided through an independent, non-partisan authority that appoints qualified, experienced lawyers who have adequate resources. Of equal significance is the recommendation that the federal government assist the states in ensuring that the Sixth Amendment is protected and that poor people have the kind of lawyers to which they are constitutionally entitled. The federal government provides badly-needed funding for law enforcement and prosecutors, but to continue doing so without also providing funding for public defense services simply exacerbates the already untenable situation.

Another recommendation is that the federal government should create a federal office of public defense services to distribute funds, collect data, promulgate standards, and develop and deliver training similar to the federally-supported training for state and local prosecutors. Additionally, the federal government should require all states to abide by national standards for public defense. Adoption of the American Bar Association’s Ten Principles would provide constitutionally adequate legal representation for criminal defendants unable to afford an attorney.

One innovative idea that will improve the quality of representation for indigent defendants is to create a national fellowship program to cultivate and train the next generation of indigent defense lawyers. This would dramatically increase the number and caliber of lawyers working to secure justice for clients and communities. Equal Justice Works, working in partnership with the Southern Public Defender Training Center (SPDTC), is proposing to do just that.

When Abortion was Illegal (w/Spanish subtitles)(1992)

Happy Birthday, George, and thank you for the wisdom on torture.

After the Battle of Trenton, as his troops were preparing to run captured British soldiers through the “gauntlet,” Washington ordered them to

Treat them with humanity, and let them have no reason to complain of our copying the brutal example of the British Army in their treatment of our unfortunate brethren who have fallen into their hands.

The consequences of doing otherwise would be dire — to match the crime:

Should any American soldier be so base and infamous as to injure any [prisoner]. . . I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause… for by such conduct they bring shame, disgrace and ruin to themselves and their country.

Justice Department: Torture Memos were “insane” but not the product of professional misconduct

From Jurist

The US Department of Justice (DOJ) [official website] has overruled the findings of a report [DOJ Ethics Report] released Friday concluding that two Bush administration lawyers committed professional misconduct when they wrote memos [JURIST news archive] authorizing the use of certain interrogation techniques that critics have called torture. Instead, the DOJ said that John Yoo [academic profile; JURIST news archive], and Jay Bybee [official profile; JURIST news archive] were only guilty of “poor judgment” in writing the memos. An internal ethics investigation by the Office of Professional Responsibility (OPR) concluded that Yoo had committed “intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice.” The report also found that Bybee had committed professional misconduct when he acted in “reckless disregard” of his duty to exercise independent legal advice. However, David Margolis, an associate deputy attorney general, released a separate memo [DOJ Margolis Report] overruling the OPR’s report, finding its analysis was flawed because it did not have a clear definition of what constitutes professional misconduct.

Back in August of 2008, when I began writing this blog, I explained my then long-held conviction that the White House Office of Legal Counsel — and in particular Jay Bybee (now a federal judge) and John Yoo (a tenured law professor) had acted immorally and in violation of their professional duties as lawyers in writing the so-called “torture memos” that gave legal approval to the torture the Bush Administration began. Both the DOJ Report and the DOJ Margolis Report confirm the details of  what I wrote back in 2008 — the memos were plainly written to justify a pre-determined conclusion. As I wrote then:

Somehow a justice department lawyer who is now a tenured professor at Boalt Hall Law School at U.C. Berkeley, along with his boss, who is now a judge on the U.S. Court of Appeals for the Ninth Circuit, thought they could get away with this utterly fictional definition of “severe pain.” And they did. Plainly, though, Yoo does not believe in constraints. In December 2005 he stated in a Chicago debate that there is no law that could prevent the President from theoretically ordering the torture of a child of a suspect in custody – including by crushing that child’s testicles.”

And now the DOJ Margolis Report concludes that “the’ evidence of the knowing violations . . . led us to conclude that Yoo put his desire to accommodate the client above his obligation to provide thorough, objective, and candid. legal advice, and that he thereforecommitted intentional professional misconduct.”

Mr. Margolis in the DOJ Margolis Report also stated:

While I have declined to adopt O.P.R.’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client.

The reports really are remarkable testaments to how far the Bush Administration went to force its desire to torture within a rule of law that does not permit torture. Among other things, the DOJ Ethics Report quotes other Bush Justice Department appointees stating that John Yoo needed “adult supervision” and describing the torture memos as “insane,” a “one-sided effort to eliminate any hurdles posed by the torture law,” “plainly wrong,”  and “slovenly”:

Our view that the memoranda were seriously deficient was consistent with comments made by some of tlie former Department officials we interviewed, even though those individuals would not necessarily agree witl! some of our findings in this matter. [Daniel] Levin stated that when he first read the Bybee Memo, “[I had} the same reaction I think everybody who reads it has - 'this is insane, who wrote this?'". Jack Goldsmith found that the memoranda were "riddled with error," concluded that key portions were "plainly wrong," .and characterized them as a "one-sided effort to eliminate any hurdles posed by the torture law." [Steven G.] Bradbury told us that Yoo did not adequately consider counter arguments in writing the memoranda and that “somebody should have exercised some adult leadership” with respect to Yoo’s section on the Commander-tn-Chief powers. [Michael] Mukasey acknowledged that the Bybee Memo was “a slovenly mistake,” even though he urged us not to find misconduct.

” Insane” about sums it up. You’re not acting as a lawyer if the research and analysis you do is insane. But, I guess, “insane” is not a sufficiently firm legal standard for Mr. Margolis. The funny thing is that I’d expect any reviewing official who didn’t see discern a standard in the report he was reviewing to state the proper standard and make his own determination whether the facts set forth satisfied or did not satisfy that standard. Or he could have sent the matter back to the ethics people with instruction to set forth a clear standard. Instead, he plainly was looking for a way to find no ethical violations here. Honestly, if the flat out lies about the law contained in the torture memos is permitted, then anything is permitted in the “war on terror.” Which, of course, is exactly Yoo’s position.

Photographing public art: a persistent fair use problem

I have a friend, a sculptor, who has sold several of his pieces as public art. He laughs at the idea that he could somehow recover more money than he has already received for any use the public makes of his sculptures. And he’ll soon be a lawyer. The way he figures it, he’s sold unlimited public use of the art for whatever uses the public will make of it — even money-making uses.

But his view is a generous one. Often the creators of public art will pursue anyone who uses images of their public art under the copyright laws. To my mind, it’s one more of an infinite  number of  manifestations of our collective obsession with converting everything we can into a marketable commodity. Nevertheless, the efforts of artists to restrict others from making and using images of their public art is far from frivolous. Donn Zaretsky and I had a couple of go rounds last year in connection with the use on a postage stamp of a photograph of the Korean War Veterans Memorial in Washington, D.C. I am still convinced that the postage stamp in that case makes fair use of the image of the memorial, but we’ll have to wait and see whether my conviction that it isn’t even a close case is vindicated.

But now from the Citizens Media Law Project comes word of a similar, and perhaps more difficult, case, from Seattle, where photographer Mike Hipple is being sued by sculptor Jack Mackie over the photo Hipple took about 10 years ago of a woman standing near the “Dance Steps on Broadway” sculpture in Seattle’s Capitol Hill. As the Citizens Media Law Project explains:

The lawsuit has outraged scores of residents who find Mackie to be out of step with the public’s interest. Mackie installed the eight sets of inlaid bronze shoe prints, mapping out well-known dances such as the waltz and rumba, in 1982 when the city rebuilt the neighborhood’s sidewalks. Despite receiving public financing for the project, Mackie retained rights to the artwork. Those rights, according to § 106 of the U.S. Copyright Act, include the exclusive right to reproduce the work or to create derivative work from it.

Finally, I agree with the following sentiments: “any scheme that involves paying to photograph seems antithetical to the public interest. The most reasonable solution is to keep public artwork completely open to the public. Until cities do this, however, commercial photographers may want to think twice about incorporating public artwork into their photographs.”

Nevertheless, I also agree with Hipple that the photo constitutes fair use of the sculptures image? Why? Because the photo stands on its own as a creative work. Hipple has taken a work embedded in a sidewalk in front of a public building and made it into a beautiful image that evokes both dance and confusion in a world full of complicated instructions seemingly sending us in a myriad of different directions. I don’t know how often I can say it: art builds on art. Culture builds on culture. And the sooner we ease up on our madness to monetize everything the sooner we’ll be sane.

There’s wealth and then there’s wealth.

One of the most common criticisms of a lot (not all!) of the so-called “economic” analysis that has dominated the political and legal minds of the last 30 years is its inability to account for value that cannot be reduced to monetary terms. The criticism, while duly noted, tends to be immediately forgotten. As a result, we’ve had an entire generation that’s felt compelled to justify its decisions on purely economic terms. The economic crisis may be affecting this tendency as much as its affecting other ways of viewing the world. Last year, some big law firms that were getting less work from their clients gave graduating law students to whom they’d given offers of permanent employment an offer that sounded to good to be true: go get another job — let it be low paying and “public interest” — and we’ll pay you a part of your salary in the expectation you’ll come work for us permanently next year. But now, according to Georgetown Law Grad Russ Ferguson, those firms are finding out, to their surprise, that the students who took advantage of the offer like their alternative jobs too much. Most importantly, they’re realizing that they’re wealthier in real terms in their lower paying jobs:

These new lawyers have found that their new jobs are more fulfilling and more interesting, and — more importantly — they’ve seen that they can live on a smaller salary. As one of my classmates put it, “Add up the hours I worked this week and add up the hours my friends at law firms worked. Divide our salaries by the amount of hours and you’ll see — I’m rich.”

(hat tip to the ABA Law Journal)

Ronald Dworkin on Citizens United: a corporation is a legal fiction without opinions of its own.

Ronald Dworkin criticizes  the Supreme Court’s Citizens United decision — ruling that corporations are entitled under the First Amendment’s guarantee of free speech to an unlimited right to contribute money to political campaigns — for the same two reasons I have. First, the majority overturned precedent while hypocritically espousing their respect for the concept of adhering to precedent, and, second, because it is absurd to treat a corporation for First Amendment persons as the equivalent of a human being:

The opinion announces and perpetuates a shallow, simplistic understanding of the First Amendment, one that actually undermines one of the most basic purposes of free speech, which is to protect democracy. The nerve of his argument—that corporations must be treated like real people under the First Amendment—is in my view preposterous. Corporations are legal fictions. They have no opinions of their own to contribute and no rights to participate with equal voice or vote in politics.

Cuckoo Kookabura — Culture as the Language of Art

I wrote in November of the claim by the owners of the copyright in the Australian chestnut Kookaburra Sits in the Old Gum Tree that Men at Work had infringed Kookabura’s copyright in their 1981 #1 hit Men Down Under. The claim is ridiculous. As the Sydney Morning Herald reported at the time, “[t]he key, harmony, structure and rhythm of Down Under’s famous riff changed the sound of it so much that nobody – not the band, [the managing director of the company that owned the copyright to Kookaburra], or even five out of six [of the game show] panellists . . . noticed it until someone turned it into a quiz show question.”

But now, as Celebrity Justice (among others) reports, “[a]fter a 3 year fight, a federal court in Australia has ruled against favorite sons Men At Work saying they plagiarized one portion of the Kookaburra tune and will now owe some of their royalties to the publishing group who bought the rights to that song in 1990.”

As CNN reports, the judge in his decision wrote that “I would emphasise that the findings I have made do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the ‘hook’ of that song.”

Whether the judge’s decision will withstand appeal under Australian copyright law is beyond my expertise, but the suggestion that the quotation of a copyrighted song in a new work constitutes copyright infringement would make a travesty of the notion of fair use under U.S. law. My zealousness on this question is not merely the result of the argument that I made in my November post — that the “transformative” nature of Men Down Under is proven by the way it alters the melody it takes from Kookabura and the failure of anyone to recognize the borrowing for 29 years. It is also because that being able to “quote” works that have resonance and meaning in our culture is fundamental to artistic creation. Kookabura is fundamental to Men Down Under as a song because Men Down Under, from its title to its performers to its lyric to its video is about Australia, and the use of a musical phrase from Kookabura is as resonant a way to convey Australia as there is.

Instead of recognizing what Lewis Hyde calls the “Cultural Commons,” many people have the knee-jerk impulse people have to identify cultural creations as “property” and thereby equate them to real estate or cars or something. Beside the rather large fact that property rights are limited in all sorts of ways in order to advance social goals (you can’t have a pig farm in the middle of a suburb, you can’t paint your house fuschia in most places, and the government can take your property if it pays you a fair (and rather low) price for it, etc.), that knee-jerk reaction entirely ignores how cultural creations draw (and must draw) on existing cultural creations, and how those creations then achieve meaning in the social sphere and are used to convey meaning in the social sphere. Copyright exists to feed, not hinder, creation, and the sooner we under what creativity really involves the more creative a culture we’ll have.

You be the judge: are Men at Work plagiarists or composers?

Archers Daniel Midland abuses copyright law to censor criticism — corporations have the right to free speech, but not the people who criticize them?

Some corporations apparently believe in free speech for themselves but not for individuals. The first video below is a deadly dull piece of propagandistic pap in which Patricia A. Woertz, Chairman, President and CEO of Archer Daniels Midland (ADM), USA drones on (someone get her better training for dealing with the media!) about ADM’s profound importance to feeding the world. The piece was produced in advance of the recent Annual Meeting of the World Economic Forum in Davos, Switzerland.

ADM has, top it mildly, been the subject of considerable ire, criticism, and even criminal prosecution for price fixing (the subject of Matt Damon’s recent film The Informant and Fair Fight in the Marketplace, an excerpt of which appears below’s Woertz’s blathering), political corruption, destruction of the rainforests, and the forced labor of children.

A couple of days ago I posted on my Facebook page what I thought was a hilarious edit of the Woertz video in which some of her original words were retained and many were dubbed over to make it appear as if she were speaking openly on behalf of an evil multinational bent on the gross and horrific exploitation of the world and especially of multinational food markets. I thought it was hilarious piece of political critique. No one could have mistaken it as an “official” ADM production, but plainly it hit a nerve at ADM.

Today I noticed that when I click on the video on my Facebook profile a message appears that it is “no longer available due to a copyright claim by Archers Daniel Midland Company” and that if I click through to YouTube there’s no page for the video at all, not even a page with the same empty video box and takedown message.

This is outright copyright abuse. Criticism is fair use. When anyone asks whether in fact fair use is grounded in the Constitution’s guarantee of free speech, all you need is to think of a situation like this — one can appropriate copyrighted works to criticize and parody the copyright holder. And to use the copyright laws to silence that critique has nothing to do with protecting intellectual property and the rights of a creator to profit from his, her, or its creation: it’s unconstitutional censorship! (Peter Bouchard wrote a good summary yesterday on ” The Battle against Bogus Takedowns, a topic I’ve touched on in the past.”

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.

We know the price of everything and the value of nothing.

A couple of weeks ago I quoted from Tony Judt’s critique of free market ideology. Raj Patel, in “How Free Market Delusions Destroyed the Economy,” goes into considerable depth about the stupidity of our faith in markets, but this brief point makes clear the wisdom underlying the entire article:

There is a discrepancy between the price of something and its value, one that economists cannot fix, because it’s a problem inherent to the very idea of profit-driven prices. This gap is something about which we’ve got an uneasy and uncomfortable intuition. The uncertainty about prices is what makes the MasterCard ads amusing. You know how it goes — green fees: $240; lessons: $50; golf club: $110; having fun: priceless. The deeper joke, though, is this: The price of something doesn’t measure its value at all.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Corporations = individuals? Confusions in economic theory and First Amendment jurisprudence

Metaphors are tricky things. Corporations are “persons” under the law in many respects, just as you and I are. And we treat corporations as rational individuals in the market. These figurative equations of legal fictions with human beings certainly have their utility, but they easily can be pushed too far. 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.

And now the Supreme Court has overturned over 100 years of precedent permitting limits on corporate contributions to political campaigns because such limits constrained free speech and, according to the truism announced by Justice Kennedy’s majority opinion, ”Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” But corporations don’t make decisions about how to spend money on campaign contributions — the individuals who control the corporations do. So what the Supreme Court has done is to remove any limits we might put on corporate CEOs to spend corporate money to advance the interests that indubitably are intended to redound to the benefit of those individual CEOs. I wouldn’t limit the ability of CEOs and shareholders to make individual contributions to political campaigns, but why are we treating purely legal entities like they are made of flesh and blood?

As Buzzflash pointed out recently, Thom Hartmann in his book Unequal Protection explains:

Prior to 1886, corporations were referred to in U.S. law as “artificial persons.” but in 1886, after a series of cases brought by lawyers representing the expanding railroad interests, the Supreme Court ruled that corporations were “persons” and entitled to the same rights granted to people under the Bill of Rights. Since this ruling, America has lost the legal structures that allowed for people to control corporate behavior.

Who needs public services in case of disaster? Not the rich . . .

The market strikes again: worried about help in the event of disaster? Well, with a lot of money, you’ve got nothing to worry about – as Naomi Klein writes, if you’re worried about wild fires burning down your home, you can buy private fire fighters who will stand by and watch your neighbors’ home go up in flames, or you can even buy larger scale disaster relief:

[Pellston, Michigan] is about to become the headquarters for the first fully privatized national disaster response center. The plan is the brainchild of Sovereign Deed, a little-known start-up with links to the mercenary firm Triple Canopy. Like HelpJet ["guarantees its well-heeled members a seat on a chartered jet out of the hurricane zone"], Sovereign Deed works on a “country-club type membership fee,” according to the company’s vice president, retired Brig. Gen. Richard Mills. In exchange for a one-time fee of $50,000 followed by annual dues of $15,000, members receive “comprehensive catastrophe response services” should their city be hit by a manmade disaster that can “cause severe threats to public health and/or well-being” (read: a terrorist attack), a disease outbreak or a natural disaster. Basic membership includes access to medicine, water and food, while those who pay for “premium tiered services” will be eligible for VIP rescue missions.(Hyperlinks added.)

Are free markets always the best? Of course not, and where’d we get that idea?

Ideas often trump reality, especially in law. In my career, Law and Economics, grounded in the principle that law works best when it serves some notion of economic efficiency, has grown from a rather small movement identified with the University of Chicago into perhaps the dominant legal theory in our law schools and among our more prominent judges. I’ve always thought, for a number of reasons, that the faith in “markets” on which Law and Economics is grounded is bunk. I’m plainly not alone. Tony Judt writes:

In the last thirty years, a cult of privatization has mesmerized Western (and many non-Western) governments. Why? The shortest response is that, in an age of budgetary constraints, privatization appears to save money. If the state owns an inefficient public program or an expensive public service—a waterworks, a car factory, a railway—it seeks to offload it onto private buyers.

The sale duly earns money for the state. Meanwhile, by entering the private sector, the service or operation in question becomes more efficient thanks to the working of the profit motive. Everyone benefits: the service improves, the state rids itself of an inappropriate and poorly managed responsibility, investors profit, and the public sector makes a one-time gain from the sale.

So much for the theory. The practice is very different. What we have been watching these past decades is the steady shifting of public responsibility onto the private sector to no discernible collective advantage. In the first place, privatization is inefficient. Most of the things that governments have seen fit to pass into the private sector were operating at a loss: whether they were railway companies, coal mines, postal services, or energy utilities, they cost more to provide and maintain than they could ever hope to attract in revenue.

For just this reason, such public goods were inherently unattractive to private buyers unless offered at a steep discount. But when the state sells cheap, the public takes a loss. It has been calculated that, in the course of the Thatcher-era UK privatizations, the deliberately low price at which long-standing public assets were marketed to the private sector resulted in a net transfer of £14 billion from the taxpaying public to stockholders and other investors.

To this loss should be added a further £3 billion in fees to the banks that transacted the privatizations. Thus the state in effect paid the private sector some £17 billion ($30 billion) to facilitate the sale of assets for which there would otherwise have been no takers. These are significant sums of money—approximating the endowment of Harvard University, for example, or the annual gross domestic product of Paraguay or Bosnia-Herzegovina.[2] This can hardly be construed as an efficient use of public resources.

In the second place, there arises the question of moral hazard. The only reason that private investors are willing to purchase apparently inefficient public goods is because the state eliminates or reduces their exposure to risk. In the case of the London Underground, for example, the purchasing companies were assured that whatever happened they would be protected against serious loss—thereby undermining the classic economic case for privatization: that the profit motive encourages efficiency. The “hazard” in question is that the private sector, under such privileged conditions, will prove at least as inefficient as its public counterpart—while creaming off such profits as are to be made and charging losses to the state.

The third and perhaps most telling case against privatization is this. There can be no doubt that many of the goods and services that the state seeks to divest have been badly run: incompetently managed, underinvested, etc. Nevertheless, however badly run, postal services, railway networks, retirement homes, prisons, and other provisions targeted for privatization remain the responsibility of the public authorities. Even after they are sold, they cannot be left entirely to the vagaries of the market. They are inherently the sort of activity that someone has to regulate.

Learn that government regulation can be very effective in under 2 minutes.

Next time someone tells you government regulation doesn’t do any good, ask them to watch the video below and whether they’d rather be driving a car built before the government started regulating automobile safety.