There’s wealth and then there’s wealth.

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

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

(hat tip to the ABA Law Journal)

Street Smarts, Book Smarts, and Making them Work Together

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

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

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

Most important perhaps, being street smart comes from experience.

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

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

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

Trying Proposition 8 as teachable moment

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

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

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

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

What is a Judicial Author?

I have posted on SSRN a copy of an article entitled “What is a Judicial Author?” I presented several years ago at a conference. I have learned to my utmost gratitude that Lewis Hyde will be quoting and citing the article in his forthcoming, much-anticipated book on the cultural commons. As the article’s abstract explains:

This paper, originally presented in draft at the Con/Texts of Invention Conference sponsored by the Society for Critical Exchange, examines the ways in which judges write opinions, the ways experienced and inexperienced legal readers conceptualize judges as authors, and the affect these conceptions have on the way they read those opinions. The paper describes judicial writing as a quintessential example of collaborative writing, a view corroborated by the ways experienced lawyers use and interpret judicial opinions in practice. The judicial opinion is not, as lay opinion grounded in the Romantic view that forms contemporary common wisdom would have it, the original work of the wise and creative judge pronouncing from on high. Rather, the opinion itself is a piece cobbled together from a number of other sources that include established law, the lawyers’ written and spoken legal arguments, secondary legal sources, and earlier opinions that were themselves built up from the bits and pieces floating through the legal discourse community. Nevertheless, conventional legal thinking has since at least the 19 th Century through today propounded the notion of the judge as quintessentially Romantic author-creator. This clash between legal practice and the conventions of legal (and especially academic) discourse poses real and neglected problems in legal education, especially in the ways the Romantic view of judicial authorship instills in students habits of reading.

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

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

Lipshaw writes (emphasis added):

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

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

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

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

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

UNDERSTANDING MAPS

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

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

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

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

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

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

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

Legal Practice and Legal Scholarship and Law School Reputations: Ships Passing in the Night.

One of the most interesting aspects of the U.S. legal system is that, as a common law system (as opposed to the civil law system prevailing in the vast majority of the non-Anglo-American world), the practice of law and the activities of legal scholars exist in almost entirely separate realms. Having had worked for well over a decade in each of the realms of legal practice and legal academia, the following account, from Wikipedia, reflects my own experience that legal scholarship in the U.S. legal system has little impact on the actual practice of law:

In common law jurisdictions [such as the U.S.], legal treatises compile common law decisions, and state overarching principles that (in the author’s opinion) explain the results of the cases. However, in common law jurisdictions, treatises are not the law, and lawyers and judges tend to use these treatises as only “finding aids” to locate the relevant cases. In common law jurisdictions, scholarly work is seldom cited as authority for what the law is. When common law courts rely on scholarly work, it is almost always only for factual findings, policy justification, or the history and evolution of the law, but the court’s legal conclusion is reached through analysis of relevant statutes and common law, seldom scholarly commentary.

In contrast, in civil law jurisdictions, the writings of law professors are given significant weight by courts. In part, this is because civil law decisions traditionally were very brief, sometimes no more than a paragraph stating who wins and who loses. The rationale has to come from somewhere else, and the academy often filled that role. As civil law court decisions move in the direction of common law reasoning, it is possible that this balance may shift.

A footnote to this explanation adds: “At least in the U.S., practicing lawyers tend to use ‘law professor’ or ‘law review article’ as a pejorative to describe a person or work that is insufficiently grounded in reality or practicality – every young lawyer is admonished repeatedly by senior lawyers not to write “law review articles,” but instead to focus on the facts of the case and the practical effects of a given outcome.”

I do not mean to point out the stereotypical disregard for legal scholarship among practicing lawyers to disparage legal scholars. Rather, I mean to emphasize what I wrote yesterday: it is the evidence in each case that persuades the legal decision maker what the just result is in each case. The legal rules of the common law system are not abstract principles of justice pronounced from on high to produce justice in each and every situation; instead, they are the refined products produced by centuries of case-by-case efforts to achieve just results based on the specific evidence presented in each of those cases. Thus, those legal rules are subordinate to the case-by-case efforts to achieve justice, not the infallible determinants of just outcomes in all future cases. As I wrote yesterday in suggesting that my students in analyzing legal disputes first consider what the dispute is about, then consider the evidence and its persuasiveness in helping them as human beings determine a just result in that dispute, and only then employ the legal rules to articulate as legal professionals speaking in the language of their technical expertise to explain the justice of that result:

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

In explaining the practice of the common law, I do not mean to denigrate U.S. legal scholarhip. But I do mean to put it into the proper context within our legal system: scholars strive to develop generalizations that govern all cases. Courts, on the other hand, decide individual cases involving individual disputes between individuals who have personal stakes in those disputes. In doing so, the courts do their best to do justice in those individual cases. Scholarly generalization, inevitably, conflicts to a considerable degree with that individual effort to find justice between individuals involved in specific disputes.

And yet the reputation of law schools is weighted enormously in favor of the evaluation by law professors of the legal scholarship of other law professors. For law students, the vast majority of whom go to law school to become lawyers, the basis of these reputations must cause some consternation if there is any truth to what I have written above about legal scholarship’s distance from and irrelevance to legal practice. But here it is, from Brian Leiter, one of the most respected authorities on the evaluation of law school quality. What measures a law faculty’s quality? Not success as a lawyer. Instead:

Faculty Quality (70% of [a law school's] final rank): the rank in this category is based on three criteria: scholarly productivity; scholarly impact of faculty work; and reputation. More precisely, 25% of the rank is based on the per capita rate of publication for the period 1998 through summer 2000 of,

1. articles in the ten most frequently cited student-edited law reviews (Yale Law Journal, Harvard Law Review, Stanford Law Review, University of Chicago Law Review, Columbia Law Review, Michigan Law Review, California Law Review, University of Pennsylvania Law Review, and Texas Law Review, plus New York University Law Review, which is less-often cited but benefits in prestige from being affiliated with a top law school;

2. articles in ten leading peer-edited law journals (Administrative Law Review, American Journal of Comparative Law, Constitutional Commentary, Environ- mental Law, Journal of Legal Studies, Law & Contemporary Problems, Law & Social Inquiry, Legal Theory, and Tax Law Review);

3. books from the three leading law publishers (Aspen, Foundation, West); and

4. books from the six leading academic presses in law (Cambridge, Chicago, Harvard, Oxford, Princeton, Yale).

Another 25% of the faculty quality rank is based on the per capita rate of scholarly impact for the top quarter of each faculty based on citations to faculty work on the Westlaw JLR database as of August 2000. Finally, 50% of the faculty quality rank is based on the subjective academic reputation of the school based on a fall 1999 survey of academics conducted by U.S. News & World Report.

Each measure of faculty quality has advantages and limitations, but together they promise to present an informative picture. The rationale for the particular weightings, and the details of the study methodology, can be found in “Measuring the Academic Distinction of Law Faculties.”

So there you have it. The law schools with the best reputations are the law schools with law professors who write law review articles read by other law professors but that have little if any impact on the actual product of the U.S. legal system.

Then again, I am on record expressing my opinion that the most reputable of law professors at the most reputable of law schools have, given the opportunity, shown themselves to the worst of lawyers.

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

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

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

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

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

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

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

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

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

AGREEMENT.

Hastings, Minn., June 1, 1883.

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

[Signed] J. H. Thompson,

Per D. S. Mooers.

R. C. Libby.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The new economy, the billable hour, and law school tuition — change is afoot.

When things change, things change.

I’ve written at length before about the perversities created by the hourly rates charged by lawyers. Hourly billing has been the standard practice in most of legal practice for the past 50 years or so. The practice on its face is troubling — just as our current health insurance scheme provides incentives for doctors and hospitals to do and bill more (and, conversely, to engage in less preventative medicine), so too does the billable hour provide incentives for lawyers to do more and, therefore to bill more.

The system has maintained itself in the same way many of our economic practices have maintained themselves — by means of an every increasing pie. And from the provider end the inflation worked its way down to every level — bills, salaries, hours, and law school tuition all skyrocketed. The tuition rise could be paid for by loans that could be paid with inflated salaries. The inflated salaries were paid by inflated bills, which were produced by inflated hours.

And in 2008 the whole edifice came crashing down. Now, all the talk is about different billing practices.

We’re all still waiting for the change, however. One outcome of a change would be, I hope, a decrease in the use of sheer economic weight to out-litigate an economically disadvantaged adversary. As things stand, as much as I hoped always to be efficient for my client, the adversary would require me to do more than I otherwise would if the adversary chose to contest every matter and to thoroughly investigate every single piece of discoverable evidence (no matter how trivial or irrelevant).

And U.S. students are desperate for relief from the tuition costs the billing practices have raised. Legal jobs are scarce, and those that exist are at depressed salaries. But tuitions have not yet come down. They’re going to have to.

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

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

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

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

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

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

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

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

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

Want to become a practicing lawyer? Don’t go to Harvard! Nesson and Tenenbaum again.

Some of my favorite and most respected former colleagues in practice went to Harvard Law School, but, based on what I’ve been seeing out Charlie Nesson in his role defending Joel Tenenbaum in Sony BMG Music v. Tenenbaum, I have to seriously wonder what Harvard is teaching about the actual practice of law.

I took Nesson to task recently for using his role as lawyer in the case to fight a crusade against the music industry, not to give his client the best defense possible. That attitude alone destroys my confidence in Nesson’s ability to train anyone to be a lawyer.

Now Nesson has proven he can’t write a brief. Yesterday on behalf of Tenenbaum he filed in the court that produced the $675,000 judgment against his client a document entitled Defendant’s Opposition to Entry of Judgment and Injunction (pdf)(the “Brief”). There are some non-frivolous arguments somewhere in that self-righteous screed, but they’re so buried in Nesson’s preference for rhetorical flourish over lawyerly detail that, as a responsibility to the students I am teaching to be lawyers, I have to call him out on his incompetence. A lawyer’s job is to win the judge to his client’s side through persuasive reason and argument; it is not to throw a mess at the judge that may or may not contain winning arguments and leave it to the judge to find those winning arguments.

It’s a dirty little secret that lawyers don’t like to make too much of: lawyers, not judges, win and lose cases. Lawyers don’t like to make too much of it because they want judges to believe they’re the ones from on high pronouncing judgment. But if you convince the judge you’re right and give him the tools to rule your way, you’ll win. It is remarkably pleasing to get an order from a judge ruling in your client’s favor and realize the order is merely a cut-and-pasted version of your brief. Why shouldn’t the judge steal my words if they explain his result as well as he can figure out how to explain them, and why should he trouble himself trying to find better ways to do so?

But Nesson doesn’t give the judge he’s seeking to persuade anything to work with. First, he’s asking the judge not to enter an order that would impose the jury’s verdict and the injunction against his client. But on what basis? Is he asking for judgment notwithstanding the verdict? What procedural rule is he filing his opposition to the entry of the judgment on? His Brief sure doesn’t explain the basis. Nor does it explain what he is asking the judge to do in lieu of entering the order? Dismiss the case? Lower the damages? Lift the injunction? Any or all?

Listen, students: when you write to the judge make sure she knows what you’re asking her to do and the legal basis she has for doing it.

I won’t get into all of the merits of Nesson’s arguments. I think he may well have a due process argument on the excessiveness of the statutory penalties, but even that one is a stretch.

But the argument he considers “first and foremost” is that “the statute in question does not permit a lawsuit against an individual consumer for statutory damages.” Brief at 1-2 (emphasis added). Having not graduated from Harvard myself, perhaps I am missing something. The operative statute, 17 U.S.C. Section 504(c), provides that “the copyright owner may elect . . . to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, . . . .” (emphasis added)

Nor is there anything in any authority to suggest that Nesson’s incomprehensible conclusion that the statute does not contemplate imposing statutory damages on individuals is founded in sources to obscure for me to know.

Nimmer on Copyright, Section 14.04[a] provides: “Under the current Act, the copyright owner may elect to recover statutory damages, instead of actual damages and defendant’s profits. He may, moreover, make such an election regardless of the adequacy of the evidence offered as to his actual damages and the amount of defendant’s profits, and even if he has intentionally declined to offer such evidence, although it was available. . . . The availability of statutory damages under the current Act, even under circumstances in which plaintiff’s damages or defendant’s profits are susceptible to precise evaluation, represents a departure from the pertinent provisions of the 1909 Act.Under that former law, the availability of statutory damages was to a degree discretionary with the court and turned largely upon the proof of actual damages and defendant’s profits.” (citations and internal quotation marks omitted)

Patry on Copyright, Section 22:153 states: “Statutory damages are damages whose assessment has been fixed by the legislature. They have existed in U.S. copyright laws since preconstitutional days and stand in contrast to common law actual damages and an accounting of defendant’s profits. Recovery of actual damages or profits varies according to the harm suffered or the benefit received, without an upper limit on the recovery. Statutory damages have been believed to be particularly valuable where such relief is difficult to prove. The purpose of statutory damages has been noted a number of times by the Supreme Court.”

Thus, the court in In re Mann, 410 B.R. 43, 49 (Bkr. C.D. Cal. 2009), quoting Columbia Pictures Television, Inc. v. Krypton Broadcasting of Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir.2001) (quoting Nimmer at § 1404[A] ), stated: “However, a plaintiff may elect statutory damages for copyright infringement ‘regardless of the adequacy of the evidence offered as to his actual damages and the amount of defendant’s profits.’” In Raydiola Music v. Revelation Rob, Inc., 729 F. Supp. 369, 374 (D. Del. 1990), the court explained that “the purpose of statutory damages is to remedy a wrong which would otherwise go unremedied if actual damages could not be proven.” See also Broadcast Music, Inc. v. Papa John’s Inc., 201 U.S.P.Q. at 305 (”Statutory damages were provided by Congress to create a remedy where actual damages [or profits] are not provable at law, but yet where it is proven that a violation of the copyright has occurred.”).”

In short, the plaintiff in a copyright infringement case has an alternative: he can prove and recover actual damages or seek the amounts allowed by statute. Such alternatives are common in situations in which it might be difficult for plaintiffs, even after having established statutory violations, to quantify their economic harm. It might even be argued that illegal downloading is precisely such a case — how can Sony BMG possibly quantify the sales, if any, it lost as a result of Tenenbaum’s unauthorized downloading of copyrighted songs.

Could I be wrong? Of course, but Nesson hasn’t begun to explain to me why. Instead, he’s made himself out to be someone who makes arguments that are patently false.

Don’t get me wrong here. I’m not on Sony BMG’s side. I think the music industry’s legal and business approaches to the technological revolution that has entirely undermined their old business models have been disasters, and I certainly don’t think Joel Tenenbaum should have to pay Sony BMG $675,000.

My problem is that Nesson is Tenenbaum’s lawyer and he hasn’t given me a good reason to believe he can get Tenenbaum free from that monumental verdict.

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

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

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

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

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

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

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

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

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

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

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

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

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

Legal rules, convenient fictions, and figuring out when you’ve agreed to something you haven’t read.

I wrote on Friday about one legal fiction — that a corporation is a “person” entitled to First Amendment free speech rights — and today I can write about another: that contractual relationships are founded on agreement.

I can get one level of the point out of the way quickly. As first year law students learn right at the beginning of their first year contracts course, it is the objective manifestation of agreement that matters, not the subjective intent. You cannot agree to buy a “white” horse and then argue that delivery of a white horse is a breach of your agreement because you subjectively intended “white” to mean black. To suppose otherwise would create a practical nightmare — every contractual dispute potentially would have to be resolved by determining which party to the contract was a liar.

But how do you determine the “objective” meaning of someone’s expressed intent? As a general rule, if you sign an agreement that says you’ve agreed to X, a court will rule you agreed to X. In the online world, if you click on a button that says “I agree,” a court will rule that you agreed even if, as is likely, you didn’t read the agreement.

But there are more complicated possibilities. In Specht v. Netscape Communications Corp. (pdf)(S.D.N.Y. 2001), Judge Alvin K. Hellerstein (someone I once, many years ago, worked for) ruled that an agreement to arbitrate contained in an online agreement Netscape purported to bind anyone who downloaded a certain program from the internet was not enforceable. Why? Because under California law (which the court had determined was applicable to the dispute), someone, “‘regardless of apparent manifestation of his consent, is not bound by inconspicuous contractual provisions of which he was unaware, contained in a document whose contractual nature is not obvious. . . . ‘” Slip op. at 16 (citation omitted).

In Specht, Judge Hellerstein found that the provision in dispute was too inconspicuous to be enforced because the person downloading the program could have done so without even knowing he was agreeing to contractual terms that would limit him in certain ways. Why? Because the language indicating that there even was such an agreement could have been entirely missed — it appeared via a link that could not even be seen unless the user scrolled down on the appropriate page. In other words, the user could click through to the download page without even seeing language indicating that his download represented an agreement to terms he could find by clicking on a link. Id. at 17.

Judge Hellerstein clearly preferred online agreements that require the affirmative act by the user of clicking on a button that says “I agree” and made plain that Netscape’s failure to do that in itself (even if the link to the applicable terms had been visible without scrolling down a page) was enough to undermine its argument that an agreement had been formed:

Netscape argues that the mere act of downloading indicates assent. However, downloading is hardly an unambiguous indication of assent. The primary purpose of downloading is to obtain a product, not to assent to an agreement. In contrast, clicking on an icon stating “I assent” has no meaning or purpose other than to indicate such assent. Netscape’s failure to require users of SmartDownload to indicate assent to its license as a precondition to downloading and using its software is fatal to its argument that a contract has been formed. Id.

Recently, however, as Techdirt pointed out, the court in PDC Laboratories Inc. v. Hach Co., No. 09-1110 (pdf) (C.D. Ill., Aug. 25, 2009), disagreed with Judge Hellerstein and ruled that under Illinois law a contract provision available for viewing behind a hyperlink was an enforceable term in the parties’ contract for the sale of goods.

So, online sellers: if you want to be sure your agreements are enforceable, do what most online sites do — require your customers to click on a button that expresses their agreement before the transaction is complete.

Online buyers: be careful. Don’t believe that you’re getting what you think you’re getting. You’re only getting what the fine print says you’re getting. But if you do get screwed, remember too that even when you sign something it might be so unfair it is unenforceable.

If, like my law students, you’re shaking your head, thinking this guy is not cutting to the bottom line — what does the law say? — understand this: the law is not like the Ten Commandments, setting forth brief rules that are always applicable. Rather, much of the time it gives you guidance on how to minimize your risks. Assume that you’ve minimized your risks as an online seller if you require someone to click on an “I agree” button, and assume you’ve minimized your risks as a buyer if you’ve read and understood the fine print.

Then again, even the Ten Commandments are not as clear cut as most people think. Thou shalt not kill? Unless you’re a Jain, you don’t really believe in the literal truth of that rule.

Doing justice is not calling balls and strikes, and to say it is is un-American.

Law is not a matter of “calling balls and strikes.” Rules in baseball define the strike zone, and there is no reason to suppose those rules should change from game to game or batter to batter.

As I need to begin explaining on Monday to my new law students, to suppose that all one needs to do is know the rules and apply them to the infinite complexities of life to come up with decisions, they are sorely mistaken. Edward H. Levi, in a 1948 law review article later expanded into a seminal book, An Introduction to Legal Reasoning, introduces the complexities of legal analysis as well as anyone I have ever read. As he explains, rules announced in earlier cases are applied as is or changed depending on the degree to which the later case is similar or different than the earlier case in which the rule was originally announced:

Thus it cannot be said that the legal process is the application of known rules to diverse facts. Yet it is a system of rules; the rules are discovered in the process of determining similarity or difference. But if attention is directed toward the finding of similarity or difference, other peculiarities appear. The problem for the law is: When will it be just to treat different cases as though they were the same? A working legal system must therefore be willing to pick out key similarities and to reason from them to the justice of applying a common classification. . . .

Edward H. Levi, An Introduction to Legal Reasoning, 15 U. Chi. L. Rev. 501, 501-03 (Spring 1948)(emphasis added; citations omitted).

So if it turns out that a court is ruling in a case in which a criminal defendant who has been convicted of murder but in the twenty years since the crime “[seven] key witnesses have . . . recanted, and several people have charged that the main prosecution witness was the shooter,” it would seem worthwhile before executing the defendant to hold a hearing to determine whether in fact he is innocent. Certainly there must be some amount of evidence that could turn up years after a murder conviction that would convince just about anyone of the convicted man’s innocence.

Would it make sense in a country that requires “due process of the law” to refuse consideration of the new evidence, no matter how strong? Of course not. It is a justice system. It is fair to say, I think, that it is fundamental to American values that we do not execute people for crimes we know they are innocent of.

But what if a court had never permitted a hearing to prove a convicted man’s innocence before? Should that stop the court from permit the new hearing in the new case? Levy’s account of how the law works makes plain that is not the case. The new case is different than the old one in that the post-conviction evidence of innocence is so strong that it simply isn’t similar enough to all the cases in which new hearings were denied to conclude the court could never order a new hearing.

That, however, is exactly what Justice Scalia, joined by Justice Thomas, wrote yesterday:

This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. (emphasis in original)

My point is that it is irrelevant as a matter of legal analysis that the court has never held that the Constitution forbids the execution of a convicted murderer who can convince a court (via the constitutional right to a writ of habeus corpus) that he is innocent. Scalia, Thomas, and commentators like Andrew Sullivan are simply wrong on this one. The implication of their logic is that if we knew we were executing an innocent man for a murder he had been convicted of the overriding concern with procedural rules, not justice, would prevent our justice system from doing anything.

That’s bullshit. I apologize for my language, and I hope I would never use it in the classroom, but this particular reasoning by Scalia and of those who would justify it is no part of a justice system, and it is no part of the way U.S. courts have always operated.

1L Contracts, the blog: a new educational tool

My law school starts class next week. For my Contracts course, I’ve decided to maintain a blog, 1L Contracts, to givethe class an opportunity to explore the course subject matter in greater depth than 3 hours a week of class permits and the the ways the issues arise every day in everyone’s lives. The initial posts are concerned with, among other things, emphasizing the enormity of the project the students are embarking upon and the proper ways to read case law.

I first used a blog for a class during the 2008-09 academic year. It was a more effective way of getting my students engaged in class subject matter  than few things I’d ever done. That blog, What is Fair Use?,  also garnered some attention in the academic world. People get excited when technology is used in new ways in the classroom. But in the case of that blog, the excitement wasn’t merely a matter of fascination with technology. The blog really made a difference to the level of the student’s engagement with the subject matter. It also happened to be the first forum in which I wrote about copyright and fair use in depth.

And I’m deeply gratified by the kind words about the new blog written by Stephanie West Allen — a lawyer, author, law professor, and expert on the neuroscience of learning — on her terrific law blog, idealawg.

If you’re interested in contract law and in the difficulties of the first year of law school, please read along there too.

Yes, lawyers need to be experts in design and typography too.

I always tell my students that one of the reasons the first year of law school is so difficult is that they come to law school thinking their time and effort will be completely exhausted by the effort to learn all the law. But, I go on to tell them, learning the legal rules is the easy part. You read statutes and case law and regulations and secondary source interpretations to find the rules. Applying them is a whole different thing. That’s probably the hardest part.

But one of the most difficult parts of lawyering, one most students take a particularly  long time to grasp, is that you have to pay attention to everything. So you act like a professional: you show up on time; you use professional language, not the language you use with your friends or on Facebook; you take criticism as an opportunity to learn what you did wrong; you take disagreement as a necessary part of the profession you are becoming part of, not as a personal attack; the point of your efforts is to learn to be a good lawyer, not to earn a good grade.

It never ends. But that’s okay — there’s just always room to get better.

And now comes, to fill an aching need, Typography for Lawyers, a site by Matthew Butterick, a civil litigator in L.A. who majored in art as an undergrad at Harvard, where he focused on design and typography. I’m very impressed by his recognition of the reason his expertise is needed. He explains that using good typography is like dressing well for court, a way “we signal to clients, other attorneys, and judges that we take our work seriously and we take court seriously.” Moreover, bad typography detracts from your goal of persuading your audience your client is right. “When you show up to make an oral argument, you make sure that you present yourself as professionally and persuasively as possible. Similarly, your written documents should reflect the same level of attention to typography.”

In general, the importance of graphic design to effective communication is woefully unappreciated. Butterick points to the design of the butterfly ballots that caused the 200 presidential election fiasco in Palm Beach County, Florida as an historic example of the bad consequences of bad design.

What caused the Challenger shuttle disaster? You might think it was defective O-rings, but that would be to fail to appreciate that the defect would likely have been known and its consequences guarded against, according to Edward Tufte, if the charts presenting the critical information to the decision makers had been rationally designed. Tufte’s expertise is in the effective use of graphics in conveying information. He’s a genius, and the dedication to his craft is made clear by the fact he self-publishes his books so that he can control the design of every element of them. And his advice on the use of PowerPoint is priceless.

“Expert” is only a name; an “expert’s” ideas are only as good as the ideas themselves.

This is the honest truth: back when the Napster case was pending on appeal (the appeal Napster would eventually lose), I was teaching a legal writing class and the problem was about copyright and fair use in connection with a web site that used posted exerpts of copyrighted works and also an online “bulletin board” (it was that long ago) for discussion of the works. I told my class that I thought that if the music industry had any sense they’d put significant excerpts of every work in their catalogs in streaming audio next to a button that would allow electronic download of an mp3 file of each song for a price.

I bring this up not to boast that I am some brilliant businessperson who would’ve wisely been picked up by Apple to help produce iTunes. I have no doubt I’d read the idea a hundred different places and that it sounded good to me. So why do I bring it up?

The students reacted this way: it’s a stupid idea; if it weren’t, the music companies would’ve done it already. What would I know that they don’t? I was left almost speechless. I asked them if they really believe that people who do things necessarily know what’s best with respect to doing those things. They apparently did. I told them I thought that it was very important that they learn that just because an “expert” thinks certain things about his area of expertise doesn’t mean that a non-expert can’t have better ideas, and that it certainly isn’t the case that an entire industry necessarily does business in the best way it could.

I was reminded of all this when I read at Ars Technica that “Geoff Taylor, head of UK major label trade group BPI, wrote an op-ed piece for the BBC today in which he called Napster the ‘Rosetta Stone of digital music,’ said it was ’simple to understand and use,’ and said that the music industry should have ‘embraced Napster rather than fighting it.’”

Lawyers need to learn EVERYTHING.

A student complained to me yesterday that he was being penalized on his law exam because he didn’t know as much about the world as other people. I laughed. I would imagine that greater knowledge about the world would lead to the better performance in any occupation. But the complaint highlighted something unique I think to law. First, law does not stand alone — it only operates in connection with specific activities. If you’re a lawyer for an investment banker, you better understand credit default swaps. If you’re a lawyer for a real estate developer, you better know an awful lot about building. If you’re a family lawyer, a heavy dose of sociology and psychology would be very helpful. Lawyer need to be experts about the REALITY they are acting as lawyers within. The rules are the easy part. The hard part of lawyering is figuring out how to take evidence and use it effectively to interpret and apply those rules. The more you can explain persuasively what and why things happened, the more you can persuasively argue what the law means when it applies to what happened.

It also highlighted part of what I love about law. Every client, every problem, and every transaction requires me to learn about people and things that  I never knew before, often about people and things I had no clue even existed. The world is a very interesting and complicated place, and there’s no end of learning.

The fact my students know a lot less than I do is no surprise. Most of them are more than 25 years younger than I am. But they need to know that they always need to learn more and that I’m not penalizing them for not knowing things they haven’t been exposed to — I’m teaching them that the more they’re exposed to the better they’ll perform as lawyers.

Compliments are worthless, and losing is winning: lawyering in a nutshell

From The Namby Pamby, Attorney at Law, comes this story, which sums up concisely both what so much of legal practice is about and why it is so often difficult for students to grasp exactly what it is they’re supposed to be doing:

Eight months, untold amounts of hours, it all came to this

For the second time in the last month, my brief writing was complimented by a judge:

“Counsel, this was excellently briefed, well done…I’m going to deny your motion.”
Thanks.

The lesson here is to beware the judicial compliment.

The reality is that even though we lost our motion, we did serious (perhaps fatal) damage to the opposing side. My boss was happy. Ergo, despite my failure at a judicial declaration of winning, we still won.

Doing justice versus making rules.

There is a tension in the common law between doing justice in an individual lawsuit and articulating rules of general application that can guide decisions in future cases. The beauty of the common law system, however, is that the primary goal is to do justice in the individual case. Civil law, the system that governs in non-Anglo-American countries, on the other hand, relies on a civil code of general application that provides predictability but often at the cost of individual justice.

One consequence of the common law system is that a “rule” articulated by a court in one case to reach the proper result in that one case can often be modified in a subsequent case in which the facts differ in a way that would make it unjust to merely apply the earlier “rule.”

One of my problems with Supreme Court jurisprudence in recent years has been that it has lost sight of this principal purpose of common law judging: to do justice in the particular case before before the court. The justices seem often more concerned with formal, abstract consistency than justice, an emphasis that to this common law lawyer seems very misplaced.

No more blatant example of this distinction exists than the Supreme Court’s recent decision in Caperton v. Massey (pdf). Thankfully, by a 5-4 decision, the Supreme Court reached what plainly was the right result, but Justice Roberts’ dissent (joined by Justices Alito, Thomas, and Scalia) epitomizes the ways striving for abstract, intellectual consistency can do violence to what, plainly, is common sense justice.

Caperton began in West Virginia, where a jury found the A.T. Coal Co., Inc. liable for $50 million for fraudulent misrepresenta-tion, concealment, and tortious interference with existing contractual relations. Knowing the West Virginia Supreme Court would consider an appeal of the verdict, Don Blankenship, Massey’s chairman and principal officer, contributed $3 million to the campaign of Brent Benjamin, who was running for the state Supreme Court against an incumbent. The $3 million contributed by Blankenship exceeded the total amount spent by all other Benjamin supporters and by Benjamin’s own committee. Benjamin won the election by fewer than 50,000 votes.

Subsequently, Caperton, who had won the $50 million verdict, moved 3 times to disqualify Benjamin from hearing the appeal of the verdict. Each time, Benjamin himself denied the motion. Benjamin also turned out to be the deciding vote that resulted in a reversal of the verdict against Massey’s company.

Apparently, as they say, money talks. There is, however, a constitutional right to “due process” under the Constitution, and, accordingly, Caperton appealed to the Supreme Court, which held, as anyone with any sense would hold, that Judge Benjamin could not be counted upon to be a fair and impartial judge of an appeal of a $50 million verdict against the man who got him elected. Justice Kennedy, writing for a majority of the Court, concluded that the primary legal quesiton is whether “under a realistic appraisal of psy-chological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”  Kennedy concluded: “There is a serious risk of actual bias when a person with a personal stake in a particular case had a significantand disproportionate influence in placing the judge on the case byraising funds or directing the judge’s election campaign when thecase was pending or imminent.”

Justice Roberts, jointed by Justices Scalia, Thomas and Alito, on the other hand, ignored the egregious facts before the Court because requiring disqualification based on a “probability of bias,” is a standard that “cannot be defined in any limited way.” Thus, Roberts complains, “[t]he Court’s new ‘rule’ provides no guidance to judges and litigants about when recusal will be constitutionally required.”

I think Roberts is full of it. Any law student knows that common law rules often turn on standards such as “reasonableness” and “probability.” What do we know based on Caperton? We know that deciding a case in favor of the man who has contributed more than 50% of the funds to get you elected to the bench is enough to establish a “probability of bias.” That hardly seems arguable. If it means we’ll get other cases arguing for a “probability of bias” under facts far less probabitive of such undue influence, the courts can deal with those cases by hearing the evidence and determining, using common sense and the guidance of precedents such as Caperton, whether there is or is not a probability of bias.

But Roberts, Scalia, Thomas, and Alito would prefer to let stand a travesty than to burden the courts with deciding exactly the kinds of questions the courts decide every day. That’s not doing justice, and it certainly isn’t common law justice. I’m not sure what it is.