Joy Garnett Lectures on Painting, Mass Media, and the Art of Fair Use

You convince people by confirming that what they believe about the world is true.

One of the most difficult things to convince law students of is that law is not merely the application of law to facts. Students start out believing that learning law is learning the rules that will answer whatever questions arise. Some students never get past that idea. The ones who become good lawyers do.

There are instances in which there are clear rules that are easy to apply. But if that were the whole of the law, we wouldn’t need lawyers, and law students certainly wouldn’t have to pay $45,000 a year for three years to earn a law degree.

Instead, convincing someone that your view of the law is the correct one requires not only finding and applying the correct rule but also in convincing whomever you are trying to convince that the rule and your interpretation of it make sense, are just, are convincing at a gut level. If you can’t do that, you’ll never become a good lawyer.

An inability to get over the stumbling block posed by the desire for a legal system consisting of clear rules that answer every conceivable question, of course, is not confined to some law students. As Jon Krakauer explains in Under the Banner of Heaven, “literalism” — the conviction that there are rules set forth in hallowed texts (which need not be religious, as strains of constitutional “originalism” demonstrate) that answer all the important questions one encounters makes people resistant to the idea that answering the tough questions requires a considerable amount of creativity, acknowledgement of ambiguity, and sensitivity to situational specifics:

For people . . . who view existence through the narrow lens of literalism, the language in certain select documents is assumed to possess extraordinary power. Such language is to be taken assiduously at face value, according to a single incontrovertible interpretation that makes no allowance for nuance, ambiguity, or situational contingencies. As Vincent Crapanzano observes in his book Serving the Word, [this] brand of literalism encourages a closed, usually (though not necessarily) politically conservative view of the world: one with a stop-time notion of history and a we-and-they approach to people, in which we are possessed of truth, virtue, and goodness and they of falsehood, depravity, and evil. It looks askance at figurative language, which, so long as its symbols and metaphors are vital, can open—promiscuously in the eyes of the strict literalist—the world and its imaginative possibilities.

Perhaps this is why literalism rarely carries long-term appeal in a functioning democracy. The majority cannot be convinced for very long without the use of force that there is good reason for elevating the particular hallowed text (much less the literalists particular reading of that text) above all other “reasons.”

I’m reminded of these things by the TED talk embedded below, in which Simon Sinek explains that success in realms as diverse as commerce, invention, and social change depend on making the why of what you do your principle focus.

Thus, in the commercial world, for example, people don’t buy what you do; they buy why you do it. Nevertheless, companies and people typically sell their product or services by explaining what they do and how they do it. They don’t typically even know why they do what they do, and they certainly don’t explain it well.

But the most successful people sell first and foremost why they do what they do. Apple, for example, explains they do what they do to challenge authority. They explain what they do as designing beautiful products that are easy to use. What do they do? They happen to sell computers. That message convinces buyers in ways the typical computer seller’s approach — (1) we sell computers, (2) we make them user friendly — does not.

Simek explains the phenomenon in market terms: the only way to get the majority of consumers to buy a new product or service is to first convince innovators and early adopters, and those people are only persuaded by the conviction they share the seller’s convictions.

But his message about the market is one applicable in all contexts in which one is trying to convince an audience:

People buy what they buy to confirm what they believe about the world.

Search engines pre-filter your results; one more roadblock to effective research

I have been for some time deeply concerned both by the inadequacy of most of my students’ research skills in recent years and the wider sense that most fields are losing a true understanding of what effective research consists of.

As I’ve previously written, research “is barely begun, if even begun at all, by merely finding a source or set of sources in which answers might lie. The real art of research lies in ‘careful consideration, observation, or study’:

Research that is genuine research not only requires Sisyphean patience in combing through the sources, it requires also consideration, observation, and study of what one finds within those sources so that one can, first, identify the elements that matter, and, second, put those important, buried, and isolated elements together in some useful and novel way.

Perhaps more importantly, the identification of the elements that matter cannot be done without simultaneously developing ways of putting those elements together in some useful and novel way. How can you know what matters without knowing what purpose you are putting it to? And how can you decide what purpose you are trying to accomplish if you don’t know what elements you’ll have to use?

My belief that there is a decreasing recognition of the complexity and creativity of research is only compounded by the following talk by Eli Pariser, who explains in graphic detail the ways online search engines are constraining our abilities to use them effectively by filtering the results pursuant to algorithms that seek to give us what the designers believe we are looking for. If they know — algorithmically — what we are looking for before we even see the results of our initial searches, what hope do we have beyond even redoubled persistence and imagination of finding anything new?

Audacity: fundamental to the practice of art and of law

I tend more often on this blog to write about the impact of law on creative endeavors, but it has always been my intent to address as well the ways creativity informs the practice of law.

In fact, the first major “breakthrough” moment in any good legal education is that one when the student realizes law is not what she thought it is — the learning of rules that she then applies to facts — but is instead that legal reasoning involves the enormously creative and imaginative ability to relate legal rules, earlier applications of those rules, and the myriad of other considerations that go into our conceptions of justice. As importantly, legal practice is also a matter of being able to communicate that complex reasoning, and the ability to communicate it well is inextricably intertwined with the ability to imagine it in the first place. Creativity and imagination, of course, are required to find the law as well.

These are not controversial views. They are central, however, to my fascination with the interplay between law and art.

One enormous component of genuinely creative work is audacity, which, in an article entitled Audacity in Contemporary Art, Diogenes March 1969 vol. 17 no. 65 1-19, Eduardo Gonzalez Lanuza defines very aptly in this way:

Audacity is “an attitude which consists of ignoring what is expected of you and daring to do what no one else dares to do.”

And yet most everyone believes law is authority that determines what is expected of you and requires you do what everyone else does.

So it is with enormous pleasure that I note that Corporate Counsel magazine has awarded Google its “Best Legal Department” award because of, as the magazine’s editor explained, the group’s audacity:

Past years’ winners were often defined by sedate virtues like superior systems and organization, but this year I’d have to say the key quality was audacity.

I’ve long been a fan of Google (though not an unqualified one), and there’s no doubt that its daring has been no small part of my admiration. I can think of few things I would want more as a lawyer than to represent Google in connection with the Google Library Project. So here’s to Google, and if anyone there in the legal department is reading this, I’d love to become your colleague.

Addendum: Speaking of Google’s audacity, not more than a few minutes after posting the above, I came across this, via Plagiarism Today:

Google has signaled that the company is prepared to oppose the major film and music companies as well as Congress and the president of the United States on a controversial bill designed to thwart online piracy.

Google Chairman Eric Schmidt said today in London that the company is prepared to go on fighting the bill should it become law, according to published reports. U.K. publication the Guardian is reporting that in a discussion with reporters during a London business conference, Schmidt said: “If there is a law that requires DNS [domain name systems, the protocol that allows users to connect to Web sites], to do x, and it’s passed by both houses of Congress and signed by the president of the United States, and we disagree with it, then we would still fight it…If it’s a request, the answer is we wouldn’t do it; if it’s a discussion, we wouldn’t do it.”

Legal writing: analytic, interactive, and nonroutine. A computer can’t do it.

One of the most difficult lessons to get across to my students is that good legal writing requires them to exercise their imaginations, that I cannot merely tell them what they are supposed to do. It’s no surprise that it’s so difficult to get this message across; even within law schools there are many who believe legal writing is nothing more than composition and citation. So I thought it was interesting that Paul Krugman wrote today on his blog about “the influential analysis of Autor, Levy, and Murnane . . . , which argued that the crucial difference in terms of possible replacement of humans by machines was one of routine versus non-routine, rather than white-collar versus blue-collar . . . .”

In the article Krugman refers to, the authors set forth a chart dividing different tasks into “analytic and interactive tasks” and “manual tasks.” They also then divide each of those categories into those that are “routine” and “nonroutine.” I was relieved, but not surprised, to find that legal writing is an analytic and interactive task that is nonroutine:

The Perfect Storm in University Education and the Birth of the Slackoisie

Thomas H. Benton, in the Chronicle of Higher Education, in “A Perfect Storm in Undergraduate Education, Part I,” writes of a crisis in undergraduate education, observing that “[s]tudents are adrift almost everywhere, floating in the wreckage of a perfect storm that has transformed higher education almost beyond recognition.” Benton identifies numerous reasons for the ineffectiveness of undergraduate education. What concerns me is the remarkable number of ways those reasons overlap with what is going on in law school education.

Thus, for example, Benton writes that “undergraduates are not prepared adequately in any academic area but often arrive with strong convictions about their abilities.” This point rings particularly loudly for me. I teach legal writing, and while a lot of people seem to believe the topic involves nothing more than grammar, style, and legal citation, anyone who has actually engaged in legal writing in practice knows that high level achievement in matters of grammar and style are prerequisites to learning and mastering the sophisticated analytic and persuasive abilities that are part and parcel of the skills of legal writing. In other words, if you haven’t already mastered English Composition, you are not ready for first year legal writing. Moreover, even if you have mastered English Composition, that does not mean you will earn an A in first year legal writing.

Benton doesn’t address the matter quite as squarely as I might, but he does recognize that the huge cost of education is a large part of the problem:

As the college-age population declines, many tuition-driven institutions struggle to find enough paying customers to balance their budgets. That makes it necessary to recruit even more unprepared students, who then must be retained, shifting the burden for academic success away from the student and on to the teacher.

At my law school, tuition is $40,000 per year. As a result, the students are the school’s most valuable resource. Let a student walk away and you let a huge chunk of revenue walk away. Thus, the institution’s desire to retain students threatens to override other institutional goals. Teaching first year law students what they need to know to become effective lawyers often is something that does not make them terribly happy, but keeping students happy often is imperative to keep them from walking away. Would you rather discourage someone who does not have the fortitude to be a lawyer from becoming one or keep him happy enough to pay $120,000 to you over 3 years? The threat to a law school’s legitimate purposes posed by that dilemma is obvious.

Even apart from financial incentives, the importance of student evaluations in making faculty promotion and retention decisions — especially in a system that is increasingly dependent on non-tenure track faculty — can drive professors to value keeping students happy more highly than challenging students to the extent they need to be challenged, as Benton points out: “The common wisdom, for the untenured, at least—whether it is true or not—is to find ways to keep the students happy.”

Finally, it is difficult to maintain rigor in a course when others teach the course from very different foundations of experience and, consequently, have very different expectations. As Benton writes, “[i]t is impossible to maintain high expectations for long unless everyone holds the line in all comparable courses—and we face strong incentives not to do that. A course in which the professor assigns a 20-page paper and 200 pages of reading every week cannot compete with one that fills the same requirement with half of those assignments.”

What precisely is the purpose of a law school? Is it to keep students happy? To train good lawyers? To train legal scholars? I wonder too whether the failures of our universities have something to do with what, as the New York Times recently noted, a couple of lawyer friends of mine are expressing when they criticize younger lawyers as the members of the “slackoisie”:

Two well-known legal bloggers, Dan Hull of What About Clients? and Scott Greenfield of Simple Justice have respectively coined and popularized the term slackoisie to describe Gen-Y attorneys as narcissists who believe:

“that having a job is an entitlement, rather than a privilege … complain about the work they have (if working), opine on the lack of ‘real lawyer’ jobs available in the market, and … criticize the long hours and inadequate pay found at most small firms [while asserting] entitle[ment] to work/life balance [and complaining that] whatever benefits they enjoy are inadequate.”

Free markets and the end of education as we know it

I’ve mentioned it before — I have watched through the course of my professional career as free market ideology has come to dominate legal thought. But it isn’t merely that many legal thinkers and politicians believe that so-called “economic efficiency” is the overriding purpose of law. Capitalist absolutism infects my teaching too because I am now teaching students who have grown up during a time in which they have learned never even to question the belief that markets are better than government at providing anything and everything.

As a result, fewer and fewer students arrive at law school with the kind of education I think is the best preparation. They come as business majors, poli sci majors, accounting majors, finance majors . . . Some come as engineers, and they tend to be the best educated, albeit a bit narrowly, but invariably they believe backgrounds in engineering put them behind the others.

Why this change, this narrowing in outlook? It’s the attitude Stanley Fish writes about today — the unquestioned acceptance that maximizing “student choice” provides the best means of improving education. It’s the same market thinking in another place — students are consumers, and if we leave to them the choice of what to pursue, those educational institutions that are chosen by the most students will be the most rewarded. And, of course, what students choose must be the most valued and therefore the best. Fish explains this thinking while cogently explaining its most fundamental defect — students don’t have the judgment to make good choices. Education is precisely about teaching them such judgment:

Judgment is what education is supposed to produce; if students possessed it at the get-go, there would be nothing for courses and programs to do.” But that objection would be entirely beside the point in the context of the assumption . . . that what students want to get from participating in higher education is money.

But now, under Britain’s new approach to higher education, “government support of higher education in the form of block grants to universities (which are free to allocate funds as they see fit) would be replaced by monies given directly to matriculating students, who would then vote with their pocketbooks by choosing which courses to ‘invest’ in.”

The problem, of course, is that the only measure of value such a mindset accepts is money:

A course’s “key selling point” will be “that it provides improved employability” and students will be asked to pay “higher charges” for a course only “if there is a proven path to higher earnings.”

Not only is this attitude remarkably narrow about what constitutes value. It also assumes that the only people interested in the results of our educational system are people who go through it. There’s no social interest in education apart from the sum total of the financial interests of those student-consumers:

The logic is the logic of privatization. Higher education is no longer conceived of as a public good — as a good the effects of which permeate society — but is rather a private benefit, and as such it should be supported by those who enjoy the benefit. “It is reasonable to ask those who gain private benefits from higher education to help fund it rather than rely . . . on public funds collected through taxation from people who have not participated in higher education themselves.” No one who has not been to a university has any stake in the health or survival of the system.

I couldn’t agree with Fish more on the pathetic narrow-mindedness of this “logic of privatization”:

There is no recognition . . . at all of the value of learning; quality is a measure nowhere referenced; civilization, as far as one can see, will have to take care of itself.

But at second thought this paean of self-praise is merited once we remember that that the report’s relentless monetization of everything in sight has redefined its every word: value now means return on the dollar; quality of life now means the number of cars or houses you can buy; a civilized society is a society where the material goods a society offers can be enjoyed by more people.

I was a double major in Latin and Ancient Greek. Classics departments are disappearing, and the “privatization” of education will only accelerate their disappearance. I did not pursue a Ph.D. merely because my job prospects after the 6 or so years I would have loved getting that degree were virtually non-existent. But I wouldn’t trade my education for anything. It made me the successful lawyer I am. I find myself returning again and again to what I learned and to further study in my current professional life about matters that I first discovered in my undergraduate years. And I genuinely think that my education taught me that value is something money can barely begin to measure in any meaningful way.

John Lanchester’s I.O.U. is a book I would encourage all my students to read. One more piece of conventional wisdom too many of them accept without question is that what happened and continues to happen in the financial markets (matters I learned of first-hand in the course of my near 12 years in practice) are too difficult for even the brightest people to understand. That is a piece of mystification that people who profited from the financial markets (at the profound expense of the rest of us) would prefer my students not look behind. Lanchester does a terrific job of explicating the causes of the 2008 financial crisis and the persistence of those causes today.

But what’s disturbing about what Lanchester writes in the context of this post is his realization that the financial crisis resulted from precisely what I am writing of — a generation during which we have come to really believe that communism fell and capitalism triumphed because of the unalloyed power of free markets. It’s not at all that Lanchester (or I) are advocates of communism. He is explicit in arguing that the liberal democracies of the 20th Century’s 2d half were the best societies that ever existed. But the pressure communism put on those societies to balance market forces with programs that promoted social justice were an indispensable part of those societies’ enormous success. With the fall of communism and the removal of that pressure, free markets have found an ideological open field in which those programs promoting social justice are being dismantled. As Dwight Garner explains in his review of I.O.U.:

It’s a story that begins, as these stories are wont to do, with the fall of the Berlin Wall. The capitalist West won its “ideological beauty contest” with the communist East, Mr. Lanchester writes, which was good news except for this: Suddenly “there was no global antagonist to point at and jeer at the rise in the number and size of the fat cats; there was no embarrassment about allowing the rich to get so much richer so very quickly.”

Once upon a time in America and Britain, he observes, “the jet engine of capitalism was harnessed to the ox cart of social justice, to much bleating from the advocates of pure capitalism, but with the effect that the Western liberal democracies became the most admired societies that the world had ever seen.”

Then the Wall crumbled, and “the jet engine was unhooked from the ox cart and allowed to roar off at its own speed. The result was an unprecedented boom, which had two big things wrong with it: It wasn’t fair, and it wasn’t sustainable.”

And it leads to poorly educated students and unhappy people.

Friedman to judges and lawyers: don’t “friend” or “tweet” one another!

Ohio is one of the first states to address the use of social networking by judges. As explained by the Ohio Supreme Court on its web site, an opinion issued 2 days ago [embedded below] by the Ohio Board of Commissioners on Grievances & Discipline “advises judges that social media use is permitted but must be done with caution, and it offers wide ranging, specific guidance to judges on how to navigate the new waters of social media without violating judicial canons that require judges to avoid even the appearance of bias or impropriety.”

My reaction to the opinion — that judges ought to avoid entirely engaging in social media communications with anyone who is or may be a lawyer or a litigant in cases before them — is one people close to me would describe as “paranoid.” Perhaps I’m just risk averse. I think, though, that I’m principally concerned with integrity.

The issue is one that pertains to what are known as “ex parte communciations” — communication between a lawyer or a litigant with the judge without the presence or participation of the adversaries to the lawsuit in which the lawyer or litigant is appearing before the judge. Ex parte communications, except under very limited circumstances all of which ensure notification to the adversaries as soon as practicable, are absolutely forbidden. Our legal system is founded on its adversary nature — not in the sense that it requires fighting but, rather, in that it tries to ensure the voices relevant to the dispute all have equal access to the judge. If my adversary communicates with the judge, I have the opportunity to judge whether it’s worthy of a response and how to respond. We don’t leave to the judge to decide whether I should or can respond — the system ensures I make that decision.

The importance of avoiding ex parte communications was brought home to me in law school by the professor who was my supervising attorney in the clinic I was part of. I was representing a child as guardian ad litem in a child abuse and neglect case in family court in Flint, Michigan. The entire scene was grim — it was 1983, and Michigan had started the precipitous economic descent it suffered at the hands of the auto industry. Unemployment in Flint was through the roof (even in 2010 terms). Abuse and neglect claims had increased. That day it was freezing and pouring rain.

After our hearing, my professor/supervisor and I stood sheltered in an entranceway to the courthouse, hoping the rain would abate a bit so we could make it to our car without getting to0 rain-soaked. As we stood there, the door opened and the judge before whom we’d just appeared stepped out, smiled, and started speaking with us, obviously intent on the same endeavor we were — waiting out the rain in the doorway. My professor immediately wished the judge a good day and, grabbing my arm, led us out into the deluge. When we’d made it to the car I asked her what in the world she had been thinking. She responded, “You do not communicate with a judge without the other side present. It’s wrong!”

It makes perfect sense to me. If the other side has an opportunity to communicate with the judge without my knowledge, how am I supposed to judge what I should let the judge know? Unfortunately, some important people seem to have underestimated the fundamental importance of this rule. Justice Scalia seems not to have worried that hunting with Dick Cheney might be deemed a compromise of the integrity of his court judging a case in which Cheney was a party. Justice Thomas’s willingness to speak before and maintain other relationships with conservative groups with a stake in cases before the Supreme Court are notorious.

And now comes the Ohio Supreme Court suggesting that as long as a judge is really careful he can communicate via social networks with people who are litigating cases in his court. I think it stinks. I would tell a judge not to allow access via social networks to litigants or potential litigants. And I’d tell any lawyer to stay away from networking with a judge before whom he will or may appear.

Incidentally, I don’t think the Ohio Supreme Court’s “guidance” really is all that helpful anyway. Essentially, the guidelines leave to the judge the determination of what is and is not appropriate, acknowledging there are no “bright lines” distinguishing between the two:

• To comply with Jud. Cond. Rule 1.2., a judge must maintain dignity in every comment, photograph, and other information shared on the social networking site.
• To comply with Jud. Cond. Rule 2.4(C), a judge must not foster social networking interactions with individuals or organizations if such communications erode confidence in the independence of judicial decision making.
• To comply with Jud. Cond. Rule 2.9 (A), a judge should not make comments on a social networking site about any matters pending before the judge – not to a party, not to a counsel for a party, not to anyone.
• To comply with Jud. Cond. Rule 2.9 (C), a judge should not view a party’s or witnesses’ pages on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge.
• To comply with Jud. Cond. Rule 2.10, a judge should avoid making any comments on a social networking site about a pending or impending matter in any court.
• To comply with Jud. Cond. Rule 2.11 (A)(1), a judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer or party. There is no bright-line rule: not all social relationships, online or otherwise, require a judge disqualification.
• To comply with Jud. Cond. Rule 3.10, a judge may not give legal advice to others on a social networking site.

Social Networking by Judges, Board of Governors of Grievances and Discipline, Ohio Op_10-007, 12-3-10

Richard Posner: Law Schools need to hire more professors who identify more strongly with legal practice.

From Richard Posner writing in honor of the memory of Bernard Meltzer:

What has happened since the 1960s—that watershed decade in modern American history—is the growing apart, especially but not only at the elite law schools, of the lawyer and the judge on the one hand and the law professor on the other hand. Law professors used to identify primarily with the legal profession and secondarily with the university. The sequence has been reversed. Law professors in that earlier era were hired after a few years of practice, on the basis of evidence (heavily weighted by performance as a law student) of possessing superlative skills of legal analysis. A law professor was expected to be a superb lawyer and to see his primary role as instructing generations of law students so that they would become good, and some of them superb, lawyers—instructing them by precept but also by example, by being a role model; and the role was that of a practicing lawyer. . . .

By the late 1960s this model was almost a century old and ripe for challenge. The challenges came from two directions, which though opposed to each other turned out to be complementary in their effect on the traditional model. . . .

These challenges to the conventional model of the law professor’s vocation so far succeeded as to bring about a fundamental change in the character of legal teaching and scholarship and the method of recruitment into academic law. From the challenge mounted by social science came a novel emphasis on basing legal scholarship on the insights of other fields, such as economics, philosophy, and history, and from the challenge mounted by the Left came a reinforcing skepticism about the capacity of conventional legal analysis to yield intellectually cogent answers to legal questions. These ideologically opposed challenges complemented each other by agreeing that the traditional model was narrow and stale.

The model was largely buried in these twin avalanches, especially in the elite law schools. . . .

Even at the most intellectually ambitious of the modern law schools, a large majority of students will become and remain practicing lawyers; and there is a good deal more to the practice of law than economics, or philosophy,or feminism, or theories of race. There is the knack of reading cases and statutes creatively, there is a largish body of basic legal concepts that every practicing lawyer should internalize, there is a bag of rhetorical tricks to be acquired along with a professional demeanor, a procedural system to be mastered, a subtle sense (“judgment”) of just how far one can go in stretching the limits of established legal doctrines to be absorbed. These things cannot be the entirety of the modern lawyer’s professional equipment, and their inculcation cannot be the entirety of a first-rate modern legal education, because the law has become too deeply interfused with the methods and insights of other fields—and the law schools are still lagging badly in attempting to overcome the shameful aversion of most law students to statistics, math, science, and technology. Maybe at the law schools that have the brightest students only a third of the instruction should be in the traditional mold. But to reach that level the law schools will have to start hiring teachers who identify more strongly with the practicing profession than they do with academia.

Why don’t law professors know how to be lawyers?

I’ve made plain my disdain for the ways law schools neglect what anyone outside law school faculties would presume is the central purpose of law schools — to train law students how to be lawyers. Among the ways this neglect manifests itself is the second class status accorded most clinicians and legal writing professors — those professors whose focus is on teaching practice — in most law schools. Now Brent E. Newton, an adjunct professor at Georgetown and the Deputy Staff Director of the U.S. Sentencing Commission) has written Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, 62 S.C. L. Rev. ___ (2010). Here’s a taste of Newton’s article:

Especially at law schools in the upper echelons of the U.S. News & World Report rankings, the core of the faculties seem indifferent or even hostile to the concept of law school as a professional school with the primary mission of producing competent practitioners. … Regardless whether they possess a Ph.D., a vastly disproportionate number of new law professors graduated from so-called “elite” law schools, which not coincidentally employ the largest percentage of impractical faculty. “Law professors are a self-perpetuating elite, chosen in overwhelming part for a single skill: the ability to do well consistently on law school examinations, primarily those taken as 1L’s, and preferably ones taken at elite “national” law schools. Some critics contend this homogeneity in law school faculties has resulted in an ethos of perceived intellectual superiority and classism and has made full-time professors, at least those with tenure, jealous of their privileged positions. Other critics contend that many law professors are so absorbed in their scholarly pursuits that they are largely unconcerned with students’ needs – academic or otherwise. …

Could [a typical law school] professor whose primary scholarly interest is criminal law and procedure effectively prosecute or represent a criminal defendant at a felony trial? Could such a professor who writes law review articles about the First Amendment effectively represent a client in a civil rights litigation? Could such a professor whose expertise is securities regulation effectively represent a client or the government in an S.E.C. enforcement action? Imagine such professors being first-chair counsel in a complex civil or criminal litigation who must interview potential witnesses, take depositions and engage in electronic discovery, file and respond to summary judgment motions, conduct voir dire, present the testimony of an expert witness, cross-examine (and impeach) hostile witnesses, and make closing arguments to a jury. There are some full-time non-clinical law professors capable of competently representing clients in real cases, but they are the exception, not the rule, particularly among professors hired in recent years at highly-ranked law schools.

How can we expect law students to become competent practitioners if the core of full-time law faculties, notwithstanding their scholarly prowess, do not themselves possess even the basic skills required to practice the type of law about which they teach and write? How can we expect law students to become competent and ethical practitioners when the faculty members best suited to teach them the necessary practical skills and ethical lessons from real-world cases – clinicians, LRW [Legal Research & Writing] professors, and adjuncts – are marginalized and even openly held in disdain by some members of the “main” faculty?

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.

Own your words. Anonymity is cowardice, and cowards aren’t known for their wisdom.

An important lesson for my legal writing students: you must own your words to be genuinely persuasive.

By that, of course, I do not mean that their words are their property. There’s a lot of confusion about that issue, but that’s not today’s lesson.

What I mean is that it’s not enough to parrot words you believe are authoritative to make your case. You must use words you know in your heart state what you mean. Parroting the words of others, even if they are authoritative, won’t do that. Which is why one of my favorite quotes is Ralph Waldo Emerson’s: “I hate quotations. Tell me what you know.” (I love paradox too.)

But in order to own your words you have to have the courage to stand behind them too. It’s one reason I bemoan the influence of anonymous student evaluations. It’s why too I’m all in with Dan Hull in this insane exchange about his insistence that anonymity is the death of productive discussion on the internet.

What possible conviction can you hold in your words if you’re not even willing to put your name to them? As Dan makes clear, there are of course exceptions to this rule — there are times anonymity is necessary to preserve one’s safety. But legitimate fear for one’s safety for stating disagreement is a rare thing that we don’t encounter terribly often in 2010 on the internet in the United States. It’s almost hilarious to find people disputing Dan under the pseudonyms “Publius” and “Marcus Agrippa.” Almost hilarious. Really, it’s pathetic.

If you can’t own your words, put yourself forward as the authority behind your words and rely on the force of those words and your own integrity for their persuasive effects, you cannot be a lawyer. I’ve said it recently: a good thing about being a lawyer is there is always someone telling you your wrong. You have to be willing to put your ideas and words to the test, and you have to be willing to adapt and adjust when your words have been successfully challenged. To hide behind a pseudonym is nothing but cowardice, and cowards aren’t known for their wisdom.

Professors, replace your textbooks!

If the book industry is changing, it can only be for the good as far as law school texts are concerned. The books are huge, large parts of them are left unassigned in many courses, and they are ridiculously expensive. And to the surprise of most non-lawyers, they are largely useless outside of law school; one does not refer to one’s casebooks when doing legal research as a lawyer.

As David W. Lewis writes, what is true for law school texts is true for all textbooks:

It is clear to anyone who looks at the state of textbooks today that the system is broken. It does not work well for anyone, but it is especially hard on students, who typically pay $1,000 a year or more for textbooks.

And so, “[e]veryone with a financial stake in the textbook business is looking for a new model. That is especially true for publishers, but also for bookstores and authors.”  Among Lewis’s suggestions  are the following:

• Encourage and embrace rental programs.

• Establish metrics for textbook costs and goals for their reduction.

• Set up an investment fund that would allow faculty members, programs, and departments to acquire or create alternative content.

I have made some progress (not much, but far more than most) in creating alternative content.

Khan Academy: an invaluable new resource in your effort to learn everything

As I’ve written before,  good lawyers need to know everything. In other words, your professional life is  a constant and endless process of learning. One of the foremost skills you bring to your clients is an ability to become fluent in their affairs and to be able to communicate your understanding of those affairs clearly, concisely, and persuasively to audiences who may never have encountered those things.

Libraries, of course, are therefore invaluable. And the internet is a miracle. But still, finding the right resources to learn a particular topic is difficult. I came out of college and law school knowing Latin and Ancient Greek and a lot of history and literature, but I needed to learn an awful lot very quickly about things like finance, insurance, economics, and business, and the effort to educate myself was an adventure. The internet has, of course, only multiplied the tedious, obscure, and downright erroneous “authorities.” So I am always thrilled to find a source that speaks to me and genuinely teaches me. And I am thrilled to have found Khan Academy. As the home page explains:

The Khan Academy is a not-for-profit organization with the mission of providing a high quality education to anyone, anywhere.

We have 1400+ videos on YouTube covering everything from basic arithmetic and algebra to differential equations, physics, chemistry, biology and finance which have been recorded by Salman Khan. . . .

The Khan Academy and Salman Khan have received a 2009 Tech Award in Education. The Tech Awards is an international awards program that honors innovators from around the world who are applying technology to benefit humanity.

Here is Mr. Khan’s introductory video:

The good thing about being a lawyer is there’s always someone to tell you you’re wrong.

Jeffrey R. Di Leo, Dean of Arts and Sciences at the University of Houston-Victoria, writes in “In Praise of Tough Criticism” that academics are reluctant to criticize one another and that, as a result, their disagreements are couched either in faint praise or anonymity, both of which neutralize the very disagreement that ought to be the foundation of intellectual life:

[G]iving faint praise is far worse than saying nothing at all. Why? Because silence is not a critical judgment—but faint praise, in contrast to honest and direct criticism, is empty criticism, the most banal form imaginable.

Another way that compassionate, caring critics get around their credo is to shroud their negative comments in anonymity. . . .

Like faint praise, anonymous criticism is empty criticism. Consider a recent example from The Chronicle Review. Carlin Romano’s article “Heil Heidegger!” was savaged in numerous anonymous comments. “Romano writes like an undergrad convinced by the argument of the last book he has read,” wrote one critic. “And, yes, he is a professor of philosophy, and yes, he was a Pulitzer Prize finalist, but his understanding of philosophy is so paltry that it beggars belief.” To that and other similar comments, Romano responded: “Those who savage me and my article from behind anonymous Internet tags emulate the cowardice, dishonesty, and taste for mobbing of the Nazi thinker they revere. It has often been that way with dupes who defend Heidegger—an abysmal thinker and writer, an immoral monster, and a disgrace to the historic enterprise of philosophy.”

Whether or not one agrees with Romano’s views of Heidegger, his take on anonymity is worth thinking about. Anonymity has more in common with cowardice than with courage—and is antithetical to critical dialogue. The common rationale for academic anonymity is quite clear: Honesty and truth require anonymity. To offer critical judgment anonymously, or, as Michel Foucault puts it in The Archaeology of Knowledge (Pantheon Books, 1972), as “a nameless voice,” allows one to stand outside the order of discourse, dialogue, and language. Writes Foucault, “I don’t want to have to enter this risky world of discourse; I want nothing to do with it insofar as it is decisive and final; I would like to feel it all around me, calm and transparent, profound, infinitely open, with others responding to my expectations, and truth emerging, one by one.” In other words, anonymity is more calming and less risky—or even more cowardly—than named criticism.

The inclination to pull one’s punches, to refrain from stating straight out one’s disagreement with one’s colleagues and the reasons for the disagreement, seems to me a particular problem in law schools. I always tell my students that one of the blessings of being a lawyer is that there’s always someone telling you you’re wrong, whether it’s your adversary, a judge, or even your client. That constant challenge to your views forces you to both be as thoughtful and well-spoken as is possible, and it forces you too to trust in your own judgment, not to defer always to authority. Lawyers disagree as a matter of professional duty. If law professors refuse to voice disagreement, they are therefore doing their students a disservice. they are like parents who model irresponsible behavior to their children.

I’m not suggesting one not be civil. Nasty adversaries make wonderful work unpleasant. But professional adversaries are a pleasure. They recognize that disagreement is one’s professional duty, and they don’t take your disagreement with them personally.

Addendum: Law professors don’t like telling their students they’re wrong either.

Slow reading: one piece in a good reader’s arsenal.

I sometimes read very slowly, and sometimes very quickly. It may be that attention spans are shrinking. I often have a difficult time getting my students to simply stop and think about what they’ve read. And so I’m all on board with the “slow reading” movement:

“The idea is not to read everything as slowly as possible, however. As with the slow food movement, the goal is a closer connection between readers and their information, said John Miedema, whose 2009 book Slow Reading explores the movement.

“‘It’s not just about students reading as slowly as possible,’ he said. ‘To me, slow reading is about bringing more of the person to bear on the book.’”

Even my 17 year old son makes fun of how slowly I read the many novels and history books I’m always trudging through, but, as I tell him, I tend to remember almost everything I read in those books. And as I research, I come across articles and books I move very slowly through, trying to make sense of every last word. It drives me particularly crazy when I ask my students what a new legal word means and none of them know. How can they read law — something they’re trying to learn — without a dictionary and without the effort to understand what it is they’re reading?

But sometimes I have to read quickly too. If you research a difficult legal question, you’ll often have to read, literally, hundreds of cases. You don’t engage in “slow reading” to find your way through hundreds of cases to the handful that merit serious study and will genuinely help answer the question you’re researching.

So, slow reading is good. So is fast reading, skimming. What makes a truly good reader is doing both and deploying them effectively.

Students don’t like professors who teach them the really difficult things.

As I wrote the other day, one of my most difficult tasks as a teacher is to get students to focus on learning rather than on grades, to try to master the skills I am teaching rather than insist on being told what they need to “know” in order to get an A. In doing so, I may be insisting on what I ought to be insisting on if in fact I am trying to advance my students on the exceedingly difficult road to becoming excellent lawyers, but I may also be undermining my own professional advancement. How can that be? Well, it’s been clear to me for a long time that I pay a price with students when I am unable to simply tell them that they need to know and do “A, B, and C” to get a good grade. Those students give me terrible evaluations. And, indeed, I’ve found students tend to either love me or hate me. Those students who get that I’m pushing them to learn and do things they’ve never been taught to do and learn before love me. They realize learning is the result of the work they put into learning, not the result of what I give them in nice, neat packages to regurgitate to me as information they’ve memorized. But the bad evaluations not only hurt; they have an impact in the evaluation of my performance that would perhaps astonish those outside academia. (Why in the world would an organization give credence to the evaluations of terrible students — (whose evaluations, done anonymously, cannot be distinguished from the evaluations of excellent students?)

And now I have evidence that my deep doubts about the reliability and use of student evaluations are well founded. In a study entitled “Does Professor Quality Matter? Evidence from Random Assignment of Students to Professors,” (pdf) Scott E. Carrell of the University of California, Davis and National Bureau of Economic Research and James E. West of the U.S. Air Force Academy conclude that students give good evaluations to professors who teach students what they need for a good grade in their course but punish professors who teach subject matter that provides knowledge and skills that have long-term value:

[S]tudents appear to reward higher grades in the introductory course but punish professors who increase deep learning (introductory course professor value-added in follow-on courses). Since many U.S. colleges and universities use student evaluations as a measurement of teaching quality for academic promotion and tenure decisions, this latter finding draws into question the value and accuracy of this practice. (emphasis added)

Addendum: Stanley Fish expresses feelings similar to mine about students’ abilities to judge the quality of teaching in connection with proposals in Texas “for college and university teachers to contract with their customers — that is, students — and to be rewarded by as much as $10,000 depending on whether they meet the contract’s terms. The idea is to hold “tenured professors more accountable” (“A&M regents push reforms,” The Eagle, June 13, 2010), and what they will be accountable to are not professional standards but the preferences of their students, who, in advance of being instructed, are presumed to be authorities on how best they should be taught”:

[S]ometimes (although not always) effective teaching involves the deliberate inducing of confusion, the withholding of clarity, the refusal to provide answers; sometimes a class or an entire semester is spent being taken down various garden paths leading to dead ends that require inquiry to begin all over again, with the same discombobulating result; sometimes your expectations have been systematically disappointed. And sometimes that disappointment, while extremely annoying at the moment, is the sign that you’ve just been the beneficiary of a great course, although you may not realize it for decades.

Needless to say, that kind of teaching is unlikely to receive high marks on a questionnaire that rewards the linear delivery of information and penalizes a pedagogy that probes, discomforts and fails to provide closure. Student evaluations, by their very nature, can only recognize, and by recognizing encourage, assembly-line teaching that delivers a nicely packaged product that can be assessed as easily and immediately as one assesses the quality of a hamburger.

And I don’t mean to suggest student evaluations are pointless. Like at least one commenter, I have gleaned very valuable things from my student evaluations. But I know too that they are also rife with the kind of hostility and irrationality that can only come from anonymity and the kind of profound discomfort that can come from genuinely educational experience. Finally, I know too that everyone gets negative student evaluations. The biggest problem is that the process of evaluating teachers has become so dependent on evaluations that the availability of negative evaluations means that the evaluators always have available “evidence” to support their desire to refuse promotion to a faculty member they don’t like for reasons that have nothing to do with the quality of their teaching.

Law students: what you learn is more important than your grade!

Ray Ward is a wise man. He sums up in a sentence what I often spend a year trying to get through to my students:

What you learn in a course is more important than your grade for that course.

It’s a particularly difficult point to get across to law students. One reason is that law school itself is packed almost entirely with people who feel that there’s a strong correlation between what you’ve learned, your intelligence, and your grade. Virtually all law professors had the highest or near the highest GPAs in their graduating classes from elite law schools. In my experience, people who succeed in an institution tend to believe that institution is very good at measuring success. Thus, law professors tend to think law school grades are good measure of success at learning law. And law students don’t know any better. They have no way to measure their success but grades. There is virtually no other feedback on their performance and their progress.

Lawyers I know genuinely do feel differently — that law school grades are poor predictors of success as a lawyer, and what studies there are confirm that the typical predictors of law school success are not good predictors of success in legal practice.

But it’s not easy getting that message across to law students, especially when your law professor colleagues don’t agree.

Does Westlaw infringe a lawyer’s copyright in his legal document? This lawsuit won’t tell us.

The Lawyer’s Weekly reports that lawyer Lorne Waldman has filed a class action in Canada alleging that Westlaw infringes the copyrights held in the documents lawyers file in court and that Westlaw publishes through its online, for pay research service:

The Toronto lawyer contends that the defendants’ Westlaw Litigator service is infringing his copyright, and that of hundreds, if not thousands, of other lawyers by reproducing (in PDF, Microsoft Word and other downloadable formats), and making available on-line for a fee,  more than 50,000 pleadings, court motions and facta the defendants recently copied from civil court files across Canada.

The case raises interesting copyright questions, but I don’t think the court will ever decide those questions.

A class action is a lawsuit brought on behalf of a group of people who have identical legal claims against a defendant arising out of identical facts. Rules of court procedure allow cases to be aggregated promotes efficiency by, in the words of Wikipedia, “aggregat[ing] a large number of individualized claims into one representational lawsuit.” There is a strong incentive too for plaintiffs’ lawyers to  bring class actions — the lawyers for the plaintiff who represents the class by running the lawsuit (typically, though not necessarily, the plaintiff who brings the lawsuit) earn fees based on a percentage of the award given to the entire class. Allowing this bonanza is a better idea than it sounds in many cases — without the promise of the large payday at the end of the case, no one would sue a large corporation like Westlaw individually because the cost would be so great for a minuscule recovery. Thus, the class action device protects against corporate activity that would cheat individual consumers out of small amounts.

Before a case that has been filed as a class action, like Mr. Waldman’s, can proceed, however, the court must determine whether it should proceed as a class action. If the court determines the case should not be a class action, it will deny “certification” of a class of plaintiffs and the case, should it proceed, will have to proceed as an individual lawsuit. That, I contend, is what will likely happen to Mr. Waldman’s, and I’m not sure it’s worth his while to litigate against a behemoth like the owners of Westlaw for the relatively small recovery he’d win even should he prevail.

Why do i think the court likely will not find Waldman’s case suitable for class action treatment? Because determining whether a given document is even entitled to copyright protection in the first place requires close scrutiny of the individual document. A huge number (arguably the vast majority) of legal documents are pastiches of other documents; many are purely formulaic. The less original a document is, the less likely it will be deemed worthy of copyright protection.

In short, determining whether Westlaw infringes the copyright on a specific legal document requires inquiry into the nature of that specific document. Examination of every document created by lawyers and published by Westlaw is precisely the kind of individualized, exhaustive procedure the class action is designed to make unnecessary. If that individualized inquiry is necessary, the case will not be certified as a class action.

Accordingly, the only way Mr. Waldman is likely to prevail on his claims is if he’s willing to go it alone and establish both that his documents are entitled to copyright protection and that Westlaw’s activities are an infringement of those copyrights.

Just say it!

It is a truth often assumed that a lawyer in need of an argument must arm herself with rules stated in legalese. There could be few more difficult assumptions to overcome in educating new lawyers.

One of my more profound light bulb moments as a young lawyer came a few months into my first job, after I’d written the first draft of a brief for a partner. After he’d had a chance to review the draft he called me into his office to discuss it. I entered, carrying, of course, the draft that by this time I’d virtually memorized. He asked me why I thought we’d win. I glanced at the draft and he said, “No. Put it down. I want you to tell me in your own words, in plain English, without telling me what the cases say.” So I slowly sputtered out a brief explanation in plain English, thinking that this was going to be painstaking, that the simple plain English explanation would be followed with a discussion of each case and the reasoning of each judge in each case, and then we’d have to cobble all these pieces together . . .

In response to my plain English explanation, he said, “Then why didn’t you just say that?” I blinked, and asked in stupid amazement, “I can do that?” He laughed, and answered, “That’s exactly what you are supposed to do.” Wow, just explain in plain English, without resort to legalistic rules and long chains of reasoning from premises established by Lord Blackstone? What an amazing idea, and what a truly difficult one to grasp.

I was reminded of this today when I read the post at Lawyerist.com entitled “Improve Your Legal Writing: Just Say It“:

Say what you want to say. Do not imply it, do not hint at it, just say it. This can be difficult at times, but it will improve your writing, and make your arguments more persuasive.