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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The ADL forgets things that we should never forget.

I share wholeheartedly Paul Krugman’s “shock” at the Anti-Defamation League’s opposition to the construction of a mosque near Ground Zero. The temple I grew up as a member of and at which my older son and I each were bar mitzvahed has a long history, exemplified by Rabbi Arthur Lelyveld, in the fight for civil rights and interfaith relations. Even more to the point, however, the temple’s present building was completed in 1957, but only after a bitter lawsuit against the City of Beachwood that required the temple to go all the way to the U.S. Supreme Court. The litigation was over zoning matters, but you’re quite naive if you think the opposition was motivated by zoning concerns.

Making creations property does not promote creation: fashion this time

It’s difficult in this era in which “property” is considered the source of liberty for people to get their heads around the idea that treating the products of creativity as part of a “cultural commons” is in fact more conducive to creativity and innovation than is strict copyright protection. Here’s some strong evidence of exactly that:

There is no copyright protection afforded to fashion designs. As a result copying is a matter of course in fashion design. You don’t exactly see a dearth of creativity and innovation in fashion design, do you?  In the video below, Johanna Blakely expands on this point. Of course, fashion designers are seeking federal legislation extending copyright protection to their designs. I hate it when ideology (here, that without the worship of “property” our way of life is doomed) trumps reality.

Property is not always the foundation of liberty: fashion and copyright.

It’s difficult in this era in which “property” is considered the source of liberty for people to get their heads around the idea that treating the products of creativity as part of a “cultural commons” is in fact more conducive to creativity and innovation than is strict copyright protection. Here’s some strong evidence of exactly that:

There is no copyright protection afforded to fashion designs. As a result copying is a matter of course in fashion design. You don’t exactly see a dearth of creativity and innovation in fashion design, do you?  Here, Johanna Blakely expands on this point:

And yet, of course, fashion designers are seeking federal legislation extending copyright protection to their designs. I hate it when ideology (here, that without the worship of “property” our way of life is doomed) trumps reality.

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

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

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

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

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

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

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

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

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

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

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

Art for Justice: Harvey Finkle

Art genuinely does have the power to advance justice. A body of work that does just that is on display right now at Painted Bride Art Center in Philadelphia, which is exhibiting the work of Harvey Finkle, ” a documentary still photographer who has produced a substantialbody of work concerned with social, political, and cultural issues.” As explained on Finkle’s web site:

His recent work includes a documentation of the Kensington Welfare Rights Union (KWRU), a poor people’s movement emanating from the poorest neighborhood in Pennsylvania; and “The Jews of South Philadelphia,” interviews and photographs of the remnants of what once was among the largest Jewish communities in the nation.

His ongoing work includes documenting the activities of many progressive organizations including a death penalty abolitionist group, ACT-UP, ADAPT (disabled activists), KWRU, and other groups concerned with housing and homelessness. Also, his work includes an extensive inventory of images depicting all aspects of life in Deaf culture, plus a substantial collection of photos dealing with education.

Works in progress are about the new wave of immigrant and refugee families who have settled in urban areas and the evolving Transgender community.

(hat tip to the art blog)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

EMI goes Zombie: its business is now owning and exploiting its copyrights.

I’ve written before that the publishing industry is a “walking corpse” because the virtual monopoly the industry once had over the production and distribution of texts is gone:

The ways we produce, copy, and disseminate information have entirely changed. Anyone sitting in a coffee shop can produce a document that looks as if it’s been typeset. (And I’m sure my students have no clue what typesetting is.) That document can be copied at virtually no cost, and disseminated world-wide at virtually no cost.

The same, of course, goes for the music industry. And now EMI is proving that it is no more than a zombie preying off of the vitality of living art rather than producing life. As The Economist reports, EMI is abandoning the business of producing music and instead converting to a business that exploits intellectual property rights:

In recent days EMI’s owner, Terra Firma, a private-equity firm, has had to pump in fresh capital because it had breached its banking covenants. On June 18th it announced drastic management changes and an important strategic shift. Two of its bosses, Charles Allen and John Birt, will leave, and the head of EMI’s music-publishing division, Roger Faxon, will become chief executive of the whole company. EMI also announced that it would “reposition itself as a comprehensive rights-management company serving artists and songwriters worldwide”. Rough translation: owning and exploiting the copyright to songs, rather than selling recordings of songs, is where the money’s going to be from now on.

Our courts and legislatures are bought and paid for — the laws they’ve made with respect to oil spills prove it.

In March, I emphasized — not for the first time — the insanity of considering corporate and other business entities as rational actors of the sort many economists consider people to be. The problem is that corporate decisions are made by individuals and are therefore driven to benefit those individuals, not the corporations (and their shareholders).”

One reason corporations focus on short-term profits is that the individuals making the decisions for a company will often take the cash made in the short term out of the company (by paying special dividends, for example) and then sell there stock, evading the long-term loss. Even if they hold onto their stock, they may have taken so much cash out of the company before the stock crashes in value that they’ve profited mightily from their holdings regardless of the company’s failures.

But still another reason is the idiocy of the regulation that is in place, regulation that instead of imposing responsibility on the companies for problems they cause limits that responsibility.

10 days ago David Leonhardt wrote about the  perversity of the federal limitations on corporate liability for oil spills and how they made BP’s oil spill, in retrospect, no great surprise:

In a little-noticed provision in a 1990 law passed after the Exxon Valdez spill, Congress capped a spiller’s liability over and above cleanup costs at $75 million for a rig spill. Even if the economic damages — to tourism, fishing and the like — stretch into the billions, the responsible party is on the hook for only $75 million. (In this instance, BP has agreed to waive the cap for claims it deems legitimate.) Michael Greenstone, an M.I.T. economist who runs the Hamilton Project in Washington, says the law fundamentally distorts a company’s decision making. Without the cap, executives would have to weigh the possible revenue from a well against the cost of drilling there and the risk of damage. With the cap, they can largely ignore the potential damage beyond cleanup costs. So they end up drilling wells even in places where the damage can be horrific, like close to a shoreline. To put it another way, human frailty helped BP’s executives underestimate the chance of a low-probability, high-cost event. Federal law helped them underestimate the costs.

We shouldn’t be surprised, then, at BP’s pathetic safety record and the retrospective inevitability of the Gulf spill:

Years before the Deepwater Horizon rig blew, BP was developing a reputation as an oil company that took safety risks to save money. An explosion at a Texas refinery killed 15 workers in 2005, and federal regulators and a panel led by James A. Baker III, the former secretary of state, said that cost cutting was partly to blame. The next year, a corroded pipeline in Alaska poured oil into Prudhoe Bay. None other than Joe Barton, a Republican congressman from Texas and a global-warming skeptic, upbraided BP managers for their “seeming indifference to safety and environmental issues.”

BP was only acting rationally!

Unsurprisingly, the Supreme Court has teamed with Congress in being an accessory to the corporate rape of the country. Even if compensatory damages are capped, conceivably courts can impose punitive damages in civil lawsuits to deter particularly egregious conduct. And, indeed, courts reacted precisely that way to the Exxon Valdez oil spill — that is, until the Supreme Court stepped in. In 1994, a jury imposed $5 billion in punitive damages on ExxonMobil for the Exxon Valdez  oil spill. 12 years later an appellate court reduced that amount to $2.5 billion, half the original amount.

2 years later, in a 5-3 vote (Sam Alito recused himself from the case because he owned Exxon stock), the Supreme Court reduced the amount to $507.5 million, about 10% of the jury’s award. The Court ruled that punitive damages (intended to punish bad behavior, not to compensate a plaintiff for his losses caused by that behavior) cannot be greater than compensatory damages (which compensate victims for their economic losses). As reported at the time, the reduced amount represented “about 12 hours of revenue for [Exxon], which reported record profits of $40.6 billion in February.” Justice Souter, writing for the Court, explained that “a penalty should be reasonably predictable in its severity, so that even Justice Holmes’s ‘bad man’ can look ahead with some ability to know what the stakes are in choosing one course of action or another. See The Path of the Law, 10 Harv. L. Rev. 457, 459 (1897). Exxon Shipping Co. v. Baker (U.S. 2008)(hyperlink added).

Of course, one might argue pretty cogently that neither the Exxon Valdez spill nor the BP Gulf spill were conceivable in the minds of the people who made the decisions that resulted in disasters and that it is precisely that failure to conceive of, much less consider, those consequences that is what the courts should retain the power to punish.

Law struggling with changes in material reality: corporate confidentiality this time

I have emphasized again and again the difficulties law faces when there are profound changes in the material reality of our lives, including, for example, demand for new sources of energy. Law is not a set of rules good for all time in all places and all things. It is, rather, an evolving system that tries to do justice in the particular situations it addresses.

The new technologies for copying and disseminating information have of course thrown our legal system into confusion over copyright. Those technologies also are having a profound impact over notions of confidentiality and privacy. Wikileaks is of course in the news in connection with its disclosures of U.S. military secrets, including its release of an Apache helicopter attack in Iraq.

The efforts of a British court to deal with Wikileaks illustrate the difficulties courts often have in applying legal rules that grow out of an era already long past to the new world. Wikileaks’ released of documents from Barclays Bank detailing Barclays’ efforts to use offshore affiliates to evade taxes in Great Britain. A judge ordered the Guardian newspaper, which had published the documents, to take the material down because, he reasoned, the bank had a right to confidentiality.” He also ordered the Guardian not to publish links or other directions for finding the documents on the internet even though they were widely available on sites not based in Great Britain.

As Alan Rusbridger, the editor of the Guardian, explains, the disconnect between the court’s view of confidentiality and the realities of the internet expose a certain degree of absurdity:

The Internet is throwing sharp relief to the illogical nature of our system. Technology is way ahead of the law, and the law is limping along trying to make sense of it.

Professor James Edelman of Oxford believes the court order in connection with the Barclays documents might be the last example of this particular type of confusion, particularly because Barclays may realize that its legal efforts, even if “successful” in getting an order barring publication in the U.K., only serve to publicize the existence of the documents the bank is trying to keep hidden:

“What is significant about the ruling,” he said, “is that it will open people’s eyes that even if you can get an injunction to preserve information that is able to be obtained over the Internet, I suspect that the injunction won’t last.” The publicity over the injunction creates more interest in the material, leading other sites to publish it. The Guardian will be able to return to court, he said, and argue the injunction no longer serves any purpose.

Mr. Rusbridger said that the newspaper still had not decided whether to do that. The cost for being wrong, he said, could be as much $300,000 in legal fees.

Seeming to prove Professor Edelman’s larger point, however, when Wikileaks became overloaded by the traffic about a week ago, another site, techcrunch.org, published the seven memos under the heading “How Barclays Ensured That Everyone Would See Their Confidential Tax Documents.”

Woody Guthrie on copyright: we wrote it, that’s all we wanted to do.

Woody Guthrie’s view of copyright:

This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A lesson for Rand Paul in the differences between the Constitution and statutory law

In the interview below with Rachel Maddow, Rand Paul is taking the position that got Robert Bork’s nomination to the Supreme Court rejected — that the federal government in the Civil Rights Act of 1964 should not have outlawed private businesses open to the public from discriminating based on race.

Moreover, he is just plain wrong to suggest that the impact of the Civil Rights Act on private businesses is the same as the impact gun rights advocates argue the 2d Amendment to the Constitution should have — Paul says those gun rights activists are arguing that private businesses, including restaurants, do not have the right to ban them from carrying guns inside those businesses.

He’s just plain wrong because the Constitution only bans discrimination based on race by government, and it only protects the right to bear arms against restrictions imposed by the government. It is a statute passed by Congress – the Civil Rights Act of 1964 — that bans private businesses open to the public from discriminating based on race. There is no such statute requiring private businesses to restrict one’s right to bear arms.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Blank slate, my ass.

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

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

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

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

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

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

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

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

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

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

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

We now know Roberts was lying.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

40 years ago (4 dead in Ohio) and today.

40 years ago today (May 4) I was 10 years old, sitting at home, when I heard about something I thought unthinkable that had just happened about 40 miles away from my home. National guard troops had fired on unarmed students at Kent State protesting the Vietnam War, killing 4 and wounding another 9. Nine days later at Jackson State, police killed students and wounded another 12 who were protesting the war and the killings at Kent State.

It was inconceivable to me that unarmed students exercising their First Amendment rights had been shot to death in the United States,  but my childhood was filled with nightmares of that sort. In 1967 I remember driving through parts of Cleveland that were under military occupation as a result of just one U.S. city among hundreds that had had exploded that year and the previous one. And, of course, in 1968, Martin Luther King and Robert Kennedy were assassinated in little more than 2 months, disappearing the 2 most prominent voices calling for the U.S. to pull its troops out of Vietnam.

And, of course, we were all at the time convinced of the inevitability of nuclear holocaust.

So I laugh when I hear earnest students of mine who insist that terrorism is the greatest threat this country has ever faced. And when conservatives express the fear that President Obama threatens us with fascism. We should not be fighting wars we can’t win in support of corrupt regimes. And we have huge problems at home:

In 2005, 21.2 percent of U.S. national income accrued to just 1 percent of earners. Contrast 1968, when the CEO of General Motors took home, in pay and benefits, about sixty-six times the amount paid to a typical GM worker. Today the CEO of Wal-Mart earns nine hundred times the wages of his average employee. Indeed, the wealth of the Wal-Mart founder’s family in 2005 was estimated at about the same ($90 billion) as that of the bottom 40 percent of the U.S. population: 120 million people.

But I remember vividly how sad I was on May 4, 1970.

Should we allow people to sell their souls to the devil? Freedom of contract confronts the fact people don’t read the contracts they enter.

I don’t think Robert Johnson made any deal with Satan to obtain his remarkable talents; he listened to and made his own the sounds of his contemporaries. Apparently, however, the British game retailer GameStation is counting on its customers believing talent is more a matter of divine or satanic inspiration than the creative reworking of existing culture. GameStation’s current end user license agreement requires online purchasers of its products to agree to the following: “ By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions.”

As further reported, “While all shoppers during the test were given a simple tick box option to opt out, very few did this, which would have also rewarded them with a £5 voucher, according to news:lite. Due to the number of people who ticked the box, GameStation claimsbelieves as many as 88 percent of people do not read the terms and conditions of a Web site before they make a purchase.” The fact that so few people read the contracts they sign is no news to me. The troublesome part is that these contracts are generally enforced, although GameStop “noted that it would not be enforcing the ownership rights, and planned to e-mail customers nullifying any claim on their soul.” They are enforced because contract law is founded on the notion that we are all free and equal individuals left to our own devices to enter those transactions we wish. Moreover, many believe that any limitations on what individuals can be allowed to agree to (within certain well-accepted limits) are counter to economic wisdom. But when we face up to the fact so few people actually read these agreements, sooner or later we’re likely to have to face the fact we’ll have to limit what consumer retailers can require in these agreements.