Dickie Goodman & Bill Buchanan: The Flying Saucer — the first hit mashup and its legacy

• Buchanan & Goodman – The Flying Saucer (Parts 1 & 2) (mp3)

Chuck Miller on the first controversial hit recording using samples of other songs:

[I]n June 1956, [Dickie] Goodman came up with an idea. “Bill Buchanan and I were writing some songs at the time,” said Goodman in a print interview, “trying to break into the business. We were sitting around and suddenly we got an idea. How would it be if we had a disc jockey show being interrupted by reports of a flying saucer – THE FLYING SAUCERS ARE REAL! – and suddenly the Platters line (from “The Great Pretender”) came to me – ‘Too real when I feel what my heart can’t conceal’ and we said ‘Hey!’ and we didn’t know any better so we put the thing together.”

Within a few days, Goodman and Buchanan spliced together a four-minute reworking of Orson Welles’ “War of the Worlds” radio broadcast. Goodman played “John Cameron Cameron,” an unflappable reporter interviewing people, officials and even the Martians themselves. Buchanan was heard as a title-mangling disc jockey (allegedly based on Alan Freed), who interrupted a Nappy Brown dance number with news of an invasion from Mars.

Buchanan: We interrupt this record to bring you a special bulletin. The reports of a flying saucer hovering over the city have been confirmed. The flying saucers are real!

Radio:Too real, when I feel, what my heart can’t conceal… (from the Platters’ “The Great Pretender”)

Buchanan: That was the Clatters’ recording, “Too Real!”

And that set the pattern. Goodman would interview eyewitnesses about the spaceship, whose responses were the lyrics of popular songs.

Goodman: This is John Cameron Cameron downtown. Pardon me madam, would you tell our audience what would you do if the saucer were to land?

Witness: Duck back in the alley (from Little Richard’s “Long Tall Sally”) . . .

The record continued. While the flying saucer landed on Earth, Buchanan and Goodman greeted its arrival with more splices, in-jokes and primitive technical wizardry.

Goodman: This is John Cameron Cameron on the spot. And now I believe we’re about to hear the words of the first spaceman ever to land on earth.

Martian: “A WOP BOP A LOO MOP A LOP BAM BOOM” (from Little Richard’s “Tutti-Frutti”) . . .

The duo shopped their pastiche to every record label in New York. Nobody was interested; many record execs dismissed the recording as a cheap “sampler.” Undaunted, they took the tape to radio station WINS, where disc jockey Jack Lacy agreed to play it. He gave the song a couple of airings, then let the next DJ – Alan Freed – play the track during his show.

Meanwhile, Buchanan and Goodman visited George Goldner, a producer at Roulette Records. In a print interview with Art Fein, Goodman remembers that meeting. “We were in George’s office, but before we got a chance to play our record, one of his salesmen burst in and asked if anybody knew about a record that was played on WINS the night before – something about Elvis Presley and spacemen. Everybody in town wanted it. George took it on immediately.”

* * *

Although the record was an immediate hit in New York, it took a couple of weeks for the rest of the country to catch on. The NBC and ABC radio networks initially banned the song, because they didn’t want any listeners misunderstanding the gag record as an actual announcement of an invasion. Other parts of the country couldn’t get their hands on the record fast enough. In Cleveland, for example, the record was so scarce that stores were charging customers as much as $1.75 for each copy.

Meanwhile, the Music Publishers Protective Association, through the offices of its trustee, the Harry Fox Agency, claimed “The Flying Saucer” was guilty of at least 19 different instances of copyright infringement and unauthorized usages. “If we can’t stop this,” said one record insider to Billboard, “nothing is safe in our business.”

“No industry exec believes [Buchanan and Goodman] have a leg to stand on in their use of copyrighted material and other disk artists without permission,” said an unnamed source to Variety.

But although the record companies publicly moaned and wrung their hands over the issue, they initially let the publishing houses go after Buchanan and Goodman for copyright infringement, rather than litigate the matter themselves. Part of the reason may have been because “The Flying Saucer” actually increased sales of records included in its collage. For example, because a snippet of “Earth Angel” was part of “The Flying Saucer,” requests for the Penguins song forced DooTone Records to reissue their hit. As an unidentified publishing representative told Time magazine, “It’s the greatest sampler of all. If you’re not on ‘Saucer,’ you’re nowhere!”

Some record company executives questioned whether Buchanan and Goodman actually infringed on any rights at all. The fragments were all part of ASCAP’s and BMI’s libraries, and Buchanan and Goodman’s lawyers argued that the question was really whether “The Flying Saucer” contained any material that wasn’t part of those two libraries. One record exec told Variety that he was ready to forget the whole business and just let the record run its course. Another industry lawyer said that because of all the publicity this case received, he didn’t think anybody would dare make another “snippet” record for at least another decade.

After much negotiation among all parties, an agreement was finally reached. The publishing houses would split 17 cents in royalties from every 89 cent copy of “The Flying Saucer” – approximately 1 cent for each publisher per disc sold. Buchanan and Goodman could still sell their single, and the song was finally cleared for jukeboxes and radio airplay.

By August 15, 1956, “The Flying Saucer” had sold 500,000 copies in three weeks, and was a regional #1 hit in Pittsburgh, Louisville and Cleveland. By the end of August, “The Flying Saucer” had doubled those sales figures, and climbed as high as #3 in Billboard’s and Variety’s national sales charts, just behind Elvis Presley’s two-sided hit “Don’t Be Cruel”/”Hound Dog” and the Platters’ “My Prayer.” In some cities, “The Flying Saucer” actually beat Elvis for a few weeks in sales and local airplay. Jukebox owners purchased three or four copies of “The Flying Saucer” for their businesses – and a couple extra for themselves. Disc jockeys loved the song, and began working on “break-in” collages of their own.

Some of those “break-in” records actually made it to disc – many of them while “The Flying Saucer” was flying up the charts. . . .

The publishing houses were furious. Instead of “break-in” records stopping, now they were multiplying like weeds in a garden. In an attempt to limit the production of new “break-in” records, the publishing houses demanded an increase from the standard two-cent royalty for each song used, to eight cents per song from each of the new “break-in” discs!

Many of the smaller companies simply gave up. . . . Plus Records . . . pressed 53,955 copies of an Elvis-themed “break-in” record, “Dear Elvis, With Love From Audrey” . . . , but could sell only 30,000 copies before the increased royalty rate was assessed. As part of a settlement agreement, Plus Records turned over the master of “Dear Elvis” to the publishing houses, who promptly destroyed the master.

In November 1956, Buchanan and Goodman began work on their second single, “Buchanan and Goodman on Trial” (Luniverse 102), a “break-in” record satirizing their experience in the courtroom. With Little Richard as their defense attorney and a jury full of Martians acquitting the “break-in” duo of all charges, “Buchanan and Goodman on Trial” became both a moderate hit and a not-so-veiled jab at the legal system.

This time the record companies fought back. Four record labels – Imperial, Aristocrat, Modern and Chess – along with two performers, Fats Domino and Overton Lemon (Smiley Lewis), filed suit in New York District Court for an injunction against all Buchanan and Goodman recordings, as well as $130,000 in compensatory and punitive damages. They also wanted 6 cents per single for use of such songs as “Ain’t That A Shame,” “Maybelline,” “I Hear You Knocking” and “Hard to Tell” on the two Luniverse singles. Two publishing companies, Commodore Music and Arc Music, joined in the suit, both refusing Luniverse’s original penny-per-sample out-of-court settlement from the first trial.

During the trial, Saul Goodman, Dickie Goodman’s father and co- counsel for the defendants, brought a copy of “The Flying Saucer” into the courtroom as Exhibit A. “My grandfather took it up to the judge,” said Jon Goodman,” and he asked the judge to take it home and listen to it. At first the judge didn’t want to do it, but he went ahead and did it.”

The next day, judge Henry Clay Greenberg denied the injunction, writing in his decision: “The defendants [Buchanan and Goodman] artfully and cleverly have devised interesting novelty records which make use of portions of records of successful performers under exclusive contract with the plaintiffs and others … In this highly competitive industry, the fruits of labor may be gathered in or lost quickly … Undoubtedly some considerable value attaches to the portions of the plaintiffs’ records which have been adopted by the defendants … the court is not able to determine whether or not the defendants have exceeded the bounds of permissible fair competition … A temporary injunction ought not to issue in a case unless the offense is clear.”

“The judge later said that the “Flying Saucer” was a satire, a parody, a new work – a burlesque, in effect – and there was no reason to charge Luniverse with violation of anybody’s copyright,” said Jon Goodman. “There were out of court settlements – they arranged clearances for the publishing houses and whatever. My father made the Harry Fox Agency, which was in charge of collecting mechanicals and royalties, a more interesting organization to work with.”

* * *

In fact, Goodman’s snippet records may have been the rock equivalent of the compositions of John Cage, David Tudor and George Rochberg – using tape recorders and phonograph records as instruments, slicing up reel-to-reel tapes and resplicing them at random; creating new recordings from the fragments of old ones. It was the music of indeterminacy, as Luciano Berio composed “Sinfonia” by quoting from a Mahler symphony and fragments of a theatrical production. It was new uses for old technology, as Ferrante and Teicher plucked the wires of a “prepared piano” for a harp-like sound. Music barriers were being torn down, as Edgard Varese’s aural symphonies influenced the work of Frank Zappa; and as Karl-Heinz Stockhausen’s electronic compositions left an indelible imprint on the Beatles’ “Revolution No. 9.”

And Dickie Goodman may have been the first to turn this “music of indeterminacy” into pop recordings. Other unsuccessful attempts at “break-in” records could be found as early as the 1920′s, according to syndicated radio host and music expert Dr. Demento. “In 1928, The Happiness Boys (Billy Jones and Ernest Hare) recorded a comedy sketch for Victor called ‘Twisting the Dials,’ about listening to the radio. It used a few snatches of other phonograph records to simulate the music that was encountered while ‘twisting the dials.’ The record was not a big seller. Spike Jones and Stan Freberg often used quotes from existing songs for humorous effect, but not bits of actual hit records. I would say that for all intents and purposes, ‘The Flying Saucer’ was the first successful release in that genre.”

* * *

Goodman’s legacy is still alive today. . . .

And most of all, he wants anybody who ever sampled a track, anybody who ever transposed a lyric into an entirely new song, anybody who had to contact the Harry Fox Agency to determine proper mechanical rights – to remember Dickie Goodman. “This is what I was meant to do. What I’m trying to do is stop something that can last forever from fading away. I’m trying to save my father’s work.”

PBF on the interrelationships between law, technology, and the arts on 9/15

On September 15 at 6pm I’ll be speaking at SPACES on the interrelationships of art, law, and technology. SPACES is a gallery, a resource, and a public forum for artists who explore and experiment. To find it, go here.  There will some minor similarities, I suppose, to the talk I gave at the Cleveland Institute of Art two years ago, but this one promises to be significantly different and better.

The Barnes Foundation and Ownership: Outsmarting Albert Barnes

James Panero sets forth the historical detail on Albert Barnes and his foundation, much discussed on this blog, in his article Outstmarting Albert Barnes:

All in all, the same brilliance that created a legacy for Albert Barnes would ultimately undo his legacy. Since the time of Barnes’ death in an automobile accident in 1951, the Barnes Foundation has been a case study in how an institution, created by a brilliant mind with clear intentions, can become irrevocably damaged through overly restrictive operating guidelines, unanticipated leadership problems, and the competing missions of other organizations and institutions. Much attention has been paid to the forces at work against the foundation, but in fact the seeds of destruction were sown by the hands of Barnes himself. As history has proven, decisions he made in life imperiled the perpetuity of his collection after death.

Barnes made every effort to preserve the vision of his creation after his death. For the past 60 years, what we have seen at the Barnes is what Barnes put there himself. At this moment, however, Barnes’ art collection is being removed forever from the walls he built for it. Barnes knew he was creating something unique in the annals of American art. He was also right that outside forces would emerge to alter his project after his death. What he never anticipated was that the very defenses he put in place to preserve his collection would eventually contribute to its undoing.

I can’t help but feel that part of the problem in the Barnes Foundation dispute was the way we glorify ownership. As Panero reports, Julian Bond, the son of Barnes compatriot and Lincoln president Horace Mann Bond, expresses the view of those who opposed the move of the Barnes Foundation collection to urban Philadelphia by stating: “The art belonged to him. He had the right to do with it as he chose, and these people, these vandals, stepped in and took it away from him.”

But do we really want someone controlling the fate of $30 billion of art (much of it bought from desperate sellers during the Depression) 60 years after his death pursuant to instructions that make no sense at all if one is concerned about the art as culture?

Would Shakespeare have survived the Internet? Scott Turow and the morality of propertizing creativity.

In the New York Times, Scott Turow, Paul Aiken, and James Shapiro ask whether Shakespeare would have survived the Internet:

The rise of the Internet has led to a view among many users and Web companies that copyright is a relic, suited only to the needs of out-of-step corporate behemoths. Just consider the dedicated “file-sharers” — actually, traffickers in stolen music movies and, increasingly, books — who transmit and receive copyrighted material without the slightest guilt.

They are abetted by a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It’s a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work.

There are a number of questions one might raise in response to Mr. Turow and his colleagues. For one, there are not many law professors other than the notoriously ineffective Charles Nesson who defend the legality of unauthorized file sharing. (To question the assumption that file sharing has a material impact on the music and publishing industries is, on the other hand, a different matter.) To conflate file sharing with tranformative appropriation in discussing copyright is the genuinely misleading rhetorical move. And Shakespeare may not be the best example to use in arguing that copyright and innovation necessarily go together. One might wonder, in fact, whether there really is such a thing as a sui generis artist, be that artist Shakespeare or Robert Johnson. Nor could one argue that there were no great artists and writers prior to the advent of what the Turow and his colleagues describe as “paywalls” around theaters or before copyright. Indeed, at least in certain markets the absence of copyright protection does indeed promote innovation. The very premise of Turow’s argument — that in the absence of the economic monopoly conferred by copyright creativity like Shakespeare’s simply won’t happen — is hardly indisputable.

Perhaps Judge Alex Kozinski, referencing Scott Turow of all people, put it best in dissenting from the 9th Circuit’s refusal to rehear en banc a case in which Vanna White successfully sued Samsung for violating her “right of publicity” by “appropriating” her “identity,” emphasizing that overprotecting intellectual property is as dangerous as underprotecting it (footnotes omitted):

Saddam Hussein wants to keep advertisers from using his picture in unflattering contexts. Clint Eastwood doesn’t want tabloids to write about him. Rudolf Valentino’s heirs want to control his film biography. The Girl Scouts don’t want their image soiled by association with certain activities. George Lucas wants to keep Strategic Defense Initiative fans from calling it “Star Wars.” Pepsico doesn’t want singers to use the word “Pepsi” in their songs. Guy Lombardo wants an exclusive property right to ads that show big bands playing on New Year’s Eve. Uri Geller thinks he should be paid for ads showing psychics bending metal through telekinesis. Paul Prudhomme, that household name, thinks the same about ads featuring corpulent bearded chefs. And scads of copyright holders see purple when their creations are made fun of.

Something very dangerous is going on here. Private property, including intellectual property, is essential to our way of life. It provides an incentive for investment and innovation; it stimulates the flourishing of our culture; it protects the moral entitlements of people to the fruits of their labors. But reducing too much to private property can be bad medicine. Private land, for instance, is far more useful if separated from other private land by public streets, roads and highways. Public parks, utility rights-of-way and sewers reduce the amount of land in private hands, but vastly enhance the value of the property that remains.

So too it is with intellectual property. Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture. . . .

But what does “evisceration” mean in intellectual property law? Intellectual property rights aren’t like some constitutional rights, absolute guarantees protected against all kinds of interference, subtle as well as blatant. They cast no penumbras, emit no emanations: The very point of intellectual property laws is that they protect only against certain specific kinds of appropriation. I can’t publish unauthorized copies of, say, Presumed Innocent; I can’t make a movie out of it. But I’m perfectly free to write a book about an idealistic young prosecutor on trial for a crime he didn’t commit. So what if I got the idea from Presumed Innocent? So what if it reminds readers of the original? Have I “eviscerated” Scott Turow’s intellectual property rights? Certainly not. All creators draw in part on the work of those who came before, referring to it, building on it, poking fun at it; we call this creativity, not piracy.

Turow and his colleagues are guilty, I think, of the “bad medicine” of “reducing too much to private property.” Perhaps Turow would describe me as a law professor advancing “counterintuitive” arguments, but he runs the risk of embodying (and profiting mightily from) a culture that has an unprecedented tendency to “propertize” everything it can and a blindness to the ways law cannot stem new practices made possible by technology. The inarguable truth is that the music and publishing industries once had virtual monopolies on the production and distribution of their products and that they no longer do. Those industries have largely reacted by trying to enforce a legal regime that grew up with and required the old means of production and distribution, which seems to me at least not the most productive way of promoting creativity.

Turow appears to be among the reactionaries trying to use the force of law to overcome reality. Last year he complained that publishers had made a mistake in making publishing e-book versions of writers’ works at the same time they published the book versions, agreeing with a publisher’s assertion that “there’s something radically wrong” when a market has the power to cause the value of a book to plummet.  When the publisher expanded on the point by stating that “I want to be able to say that a new book by Scott Turow is worth $28, and people should be willing to pay that,” Turow agreed, justifying his entitlement to the price by arguing that “[t]here is nothing wrong with [copyright holders] maximizing their profits . . . . If we really want to have a robust literary culture, then we have to think about the compensation system.”

I would suggest to the publisher and Turow that there might not be anything wrong with maximizing profits but that there might indeed be something wrong with charging a price that reflects the costs of printing and distributing books when the market now can deliver a product that need not be printed and that can be delivered virtually for free.

What is “intuitive” to Turow and the point of view he represents is that your creations are as much your property as your car or your computer. But “intellectual property” is not property in the same way as personal or real property. The very source of our nation’s copyright laws, the Constitution’s Copyright Clause,  makes clear that copyright law exists to promote invention and creativity, and to the extent it discourages invention and creativity it is unconstitutional. Nonetheless, Turow and many others cannot seem to overcome some “moral” conviction that to allow others to profit off of your creations is somehow to “steal” something from you. Again, Judge Kozinski in the Vanna White case quoted above, eloquently states the response to this “moral claim” (footnotes omitted; hyperlinks added):

Moreover, consider the moral dimension, about which the panel majority seems to have gotten so exercised. Saying Samsung “appropriated” something of White’s begs the question: Should White have the exclusive right to something as broad and amorphous as her “identity”? Samsung’s ad didn’t simply copy White’s schtick–like all parody, it created something new. True, Samsung did it to make money, but White does whatever she does to make money, too; the majority talks of “the difference between fun and profit,” 971 F.2d at 1401, but in the entertainment industry fun is profit. Why is Vanna White’s right to exclusive for-profit use of her persona–a persona that might not even be her own creation, but that of a writer, director or producer–superior to Samsung’s right to profit by creating its own inventions? Why should she have such absolute rights to control the conduct of others, unlimited by the idea-expression dichotomy or by the fair use doctrine?

To paraphrase only slightly Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S340], __, 111 S.Ct. 1282, 1289-90, 113 L.Ed.2d 358 (1991), it may seem unfair that much of the fruit of a creator’s labor may be used by others without compensation. But this is not some unforeseen byproduct of our intellectual property system; it is the system’s very essence. Intellectual property law assures authors the right to their original expression, but encourages others to build freely on the ideas that underlie it. This result is neither unfair nor unfortunate: It is the means by which intellectual property law advances the progress of science and art. We give authors certain exclusive rights, but in exchange we get a richer public domain. The majority ignores this wise teaching, and all of us are the poorer for it

Can Congress constitutionally require individuals to purchase health insurance? It seems the Founding Fathers assumed so.

Rick Ungar suggests that believing our Founding Fathers would not have approved of requiring individuals purchasing health insurance is belied by what Congress did just twelve years after the Constitution was adopted:

In July of 1798, Congress passed – and President John Adams signed – “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.

Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.And when the Bill came to the desk of President John Adams for signature, I think it’s safe to assume that the man in that chair had a pretty good grasp on what the framers had in mind. . . .

The law did a number of fascinating things.

First, it created the Marine Hospital Service, a series of hospitals built and operated by the federal government to treat injured and ailing privately employed sailors. This government provided healthcare service was to be paid for by a mandatory tax on the maritime sailors (a little more than 1% of a sailor’s wages), the same to be withheld from a sailor’s pay and turned over to the government by the ship’s owner. The payment of this tax for health care was not optional. If a sailor wanted to work, he had to pay up.

Retired Justice John Paul Stevens: the death penalty does us no good.

In the New York Review of Books, in the course of reviewing David Garland’s Peculiar Institution: America’s Death Penalty in an Age of Abolition, retired Supreme Court Justice John Paul Stevens provides a critique of the continuing utility and wisdom of the death penalty.

Any human institution is better understood if one understands its history. I’ve often made this point in connection with our understanding of what it means to be an author, a creator, or an artist. But the point is a general one and quite plainly also applicable to an understanding of the death penalty, which, as Justice Stevens points out, “has roots in gruesome and public spectacles: unspeakable torture and postmortem desecrations of offenders’ remains designed, respectively, to maximize suffering and exalt the omnipotence of the sovereign.”

The increasing availability of deportation and imprisonment as a means of coping with people deemed undesirable by the sovereign, however, led to a reduction in executions, a new found concern with making executions more humane, and, eventually, the “lengthy and elaborate legal process [that] has become a central feature of American capital punishment.” As a result, several people have been executed over 20 years after their crimes, and some prisoners have now been on death row for over 30 years. Garland concludes that “[s]uch delays do not just undermine the death penalty’s deterrent effect; they also spoil its capacity for satisfying retribution.” He also believes that efforts t o make executions more humane similarly minimize the deterrent and retributive qualities of the death penalty:

What once was a frightening public spectacle now resembles painless administration of preoperative anesthesia in the presence of few witnesses. American officials do not enjoy executions; “they seem, in short, embarrassed, as if caught in a transgression.”

Nevertheless, in the U.S., the political strength of localities relative to the federal government has led to the retention of the death penalty, which has disappeared from Western Europe. There is a long history of community-level executions in America dating to colonial times. Thus, in reaction to Furman v. Georgia, 408 U.S. 238 (1972), the 1972 Supreme Court case resulting in a moratorium on executions in the forty-two jurisdictions that authorized them, 34 states enacted new death penalty laws by 1980. Much of the political rhetoric behind the new capital punishment laws was grounded in “states’ rights,” the all purpose justification for resistance to nationwide standards going back to slavery and, as Justice Stevens points out, “like the related vigorous and continuing criticism of liberal Warren Court decisions protecting the rights of criminal defendants and minority voters, an important part of the Republican Party’s ‘Southern strategy.’” Because of this unintended consequence of Furman, Garland argues that since the 70s

[T]he Supreme Court [has] focused on transforming capital punishment, requiring new procedural protections, reducing the cruelty of executions, and devolving power to “the people” at the local level. The concern with local policymaking that Garland emphasizes, however, has not prevented Supreme Court decisions from eliminating categories of defendants (juveniles and the mentally retarded) and offenses (rape and unintentional killings) from exposure to capital punishment nationwide.

The persistence of the death penalty in the U.S., however, begs for explanation. Garland’s explanation is largely cultural. The persistence of the death penalty satisfies a cultural need to address issues pertaining to death:

Garland concludes that capital punishment today is “reasonably well adapted to the purposes that it serves, but deterrent crime control and retributive justice are not prominent among them.” Instead, the death penalty promotes “gratifications,” of “professional and political users, of the mass media, and of its public audience.” In particular, he contends, capital punishment derives “its emotional power, its popular interest, and its perennial appeal” from five types of “death penalty discourse.” They are: (1) political exploitation of the gap between the Furman decision and popular opinion; (2) adversarial legal proceedings featuring cultural tensions between capital punishment and liberal humanism; (3) the political association of capital punishment with larger political and cultural issues, such as civil rights, states’ rights, and crime control; (4) demands for revenge; and (5) the emotional power of imagining killing and death. He concludes that “the American death penalty has been transformed from a penal instrument that puts persons to death to a peculiar institution that puts death into discourse for political and cultural purposes.”

The cultural importance of death in American political and cultural life is illustrated by political avowals for support for capital punishment to express support for “law and order.” Thus, “California Senator Barbara Boxer bragged that she voted 100 times for the death penalty. And George W. Bush first ran for president in a year when, as governor of Texas, he had presided over the largest number of state executions ever carried out in a single twelve-month period—a total of forty in the year 2000.” Where judges are elected and have the power to overrule jury verdicts, as in Alabama, they override and impose the death penalty 10 times more often than they override to impose a punishment other than death. In contrast, where judges with the power to overrule jury verdicts are not subject to election, judge-imposed verdicts favor defendants. In short, if you want to get elected to office in the U.S., it is a good idea to support the death penalty.

Justice Stevens does not believe, however, that the political and cultural interests advanced by the death penalty can justify its continued vitality. Nor does he see any justification for it in the 5 groups of people affected by it – victims, survivors, participants in the judicial process, the general public, and the defendants themselves:

To be reasonable, legislative imposition of death eligibility must be rooted in benefits for at least one of the five classes of persons affected by capital offenses.

First, of course, are victims. By definition murder victims are no longer alive and so have no continuing interest.

Second are survivors—family and close friends of victims who often suffer enormous grief and tangible losses. The harm to this class is immeasurable; but punishment of the defendant cannot reverse or adequately compensate any survivor’s loss. An execution may provide revenge and therapeutic benefits. But important as that may be, it cannot alone justify death sentences. We do not, after all, execute drunken drivers who cause fatal accidents.

Third are participants in judicial processes that end in executions—detectives, prosecutors, witnesses, judges, jurors, defense counsel, investigators, clemency board members, and the medically trained personnel who carry out the execution process and whom Garland describes as being somewhat embarrassed by doing so. While support of the death penalty wins votes for some elected officials, all participants in the process must realize the monumental costs that capital cases impose on the judicial system. The financial costs (which Garland estimates are at least double those of noncapital murder cases) are obvious; seldom mentioned is the impact on the conscientious juror obliged to make a life-or-death decision despite residual doubts about a defendant’s guilt.

The fourth category consists of the general public. If Garland’s comprehensive analysis is accurate—that the primary public benefits of the death penalty are “political exchange and cultural consumption”—and as long as the remedy of life imprisonment without the possibility of parole is available, those partisan and cultural considerations provide woefully inadequate justifications for putting anyone to death.

Fifth, of course, is the class of thousands of condemned inmates on death row who spend years in solitary confinement awaiting their executions. Many of them have repented and made positive contributions to society. The finality of an execution always ends that possibility. More importantly, that finality also includes the risk that the state may put an actually innocent person to death.

It is hereby permitted to reprint my silliness.

In a call for a National Digital Library, and borrowing heavily from Lewis Hyde’s Common as Air, Robert Darnton contrasts 18th Century views on the free exchange of information with certain views today:

I know: the devil can cite Jefferson. Anyone can cull through the papers of the Founding Fathers in order to find quotations in support of a cause. But I can’t resist. Here is Jefferson again:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea…. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

Jefferson was thinking about the effects of printing, of books, and of reading—a favorite subject of the Founding Fathers. Here is Franklin:

The art of printing…diffuses so general a light…that all the window shutters despotism and priestcraft can oppose to keep it out, prove insufficient.

And John Adams:

And you, Messieurs printers, whatever the tyrants of the earth may say of your paper…are so much the more to your honor; for the jaws of power are always opened to devour, and her arm is always stretched out, if possible, to destroy the freedom of thinking, speaking, and writing.

“Despotism and priestcraft” have an antiquated ring to them, but the danger of restricting access to knowledge is as great today as it was two hundred years ago. Here is a copyright notice attached to a recent electronic edition of Alice’s Adventures in Wonderland, which was first published in 1865:

Copy: No text selections can be copied from the book to the clipboard….

Lend: This book cannot be lent to someone else.

Give: This book cannot be given to someone else.

Read aloud: This book cannot be read aloud.

Contrast that statement, made only yesterday, with the following remarks by Voltaire after the publication of his Questions sur l’Encyclopédie in 1772: “It is hereby permitted to any bookseller to [re]print my silliness, be it true or false, at his risk, peril, and profit.” As Lewis Hyde put it in his recent book, Common as Air, an enclosure movement is threatening to destroy our cultural commons, the world of knowledge that belongs to us all.

Happy Labor Day! President Eisenhower on Unions.

President Dwight D. Eisenhower to the AFL-CIO, December 5, 1955:

You of organized labor and those who have gone before you in the union movement have helped make a unique contribution to the general welfare of the Republic–the development of the American philosophy of labor. This philosophy, if adopted globally, could bring about a world, prosperous, at peace, sharing the fruits of the earth with justice to all men. It would raise to freedom and prosperity hundreds of millions of men and women–and their children–who toil in slavery behind the Curtain.

One principle of this philosophy is: the ultimate values of mankind are spiritual; these values include liberty, human dignity, opportunity and equal rights and justice.

Workers want recognition as human beings and as individuals-before everything else. They want a job that gives them a feeling of satisfaction and self-expression. Good wages, respectable working conditions, reasonable hours, protection of status and security; these constitute the necessary foundations on which you build to reach your higher aims.

Moreover, we cannot be satisfied with welfare in the aggregate; if any group or section of citizens is denied its fair place in the common prosperity, all others among us are thereby endangered.

The second principle of this American labor philosophy is this: the economic interest of employer and employee is a mutual prosperity.

Their economic future is inseparable. Together they must advance in mutual respect, in mutual understanding, toward mutual prosperity. Of course, there will be contest over the sharing of the benefits of production; and so we have the right to strike and to argue all night, when necessary, in collective bargaining sessions. But in a deeper sense, this surface struggle is subordinate to the overwhelming common interest in greater production and a better life for all to share.

The American worker strives for betterment not by destroying his employer and his employer’s business, but by understanding his employer’s problems of competition, prices, markets. And the American employer can never forget that, since mass production assumes a mass market, good wages and progressive employment practices for his employee are good business.

The Class Struggle Doctrine of Marx was the invention of a lonely refugee scribbling in a dark recess of the British Museum. He abhorred and detested the middle class. He did not foresee that, in America, labor, respected and prosperous, would constitute–with the farmer and businessman–his hated middle class. But our second principle–that mutual interest of employer and employee–is the natural outgrowth of teamwork for progress, characteristic of the American economy where the barriers of class do not exist.

The third principle is this: labor relations will be managed best when worked out in honest negotiation between employers and unions, without Government’s unwarranted interference.

This principle requires maturity in the private handling of labor matters within a framework of law, for the protection of the public interest and the rights of both labor and management. The splendid record of labor peace and unparalleled prosperity during the last 3 years demonstrates our industrial maturity.

Some of the most difficult and unprecedented negotiations in the history of collective bargaining took place during this period, against the backdrop of non-interference by Government except only to protect the public interest, in the rare cases of genuine national emergency. This third principle, relying as it does on collective bargaining, assumes that labor organizations and management will both observe the highest standards of integrity, responsibility, and concern for the national welfare.

You are more than union members bound together by a common goal of better wages, better working conditions, and protection of your security. You are American citizens.

The roads you travel, the schools your children attend, the taxes you pay, the standards of integrity in Government, the conduct of the public business is your business as Americans. And while all of you, as to the public business, have a common goal–a stronger and better America–your views as to the best means of reaching that goal vary widely, just as they do in any other group of American citizens.

So in your new national organization, as well as in your many constituent organizations, you have a great opportunity of making your meetings the world’s most effective exhibit of democratic processes. In those meetings the rights of minorities holding differing social, economic, and political views must be scrupulously protected and their views accurately reflected. In this way, as American citizens you will help the Republic correct the faulty, fortify the good, build stoutly for the future, and reinforce the most cherished freedoms of each individual citizen.

This country has long understood that by helping other peoples to a better understanding and practice of representative government, we strengthen both them and ourselves. The same truth applies to the economic field. We strengthen other peoples and ourselves when we help them to understand the workings of a free economy, to improve their own standards of living, and to join with us in world trade that serves to unite us all.

In the world struggle, some of the finest weapons for all Americans are these simple tenets of free labor. They are again: mart is created in the Divine image and has spiritual aspirations that transcend the material; second, the real interests of employers and employees are mutual; third, unions and employers can and should work out their own destinies. As we preach and practice that message without cease, we will wage a triumphant crusade for prosperity, freedom, and peace among men.

To close, it is fitting that we let our hearts be filled with the earnest prayer that, with the help of a kind Providence, the world may be led out of bitterness and materialism and force into a new era of harmony and spiritual growth and self-realization for all men. Thank you very much.

The myth of authorship and the rise of a new artistic culture

As I’ve pointed out previously, my colleague and friend Martha Woodmansee‘s scholarship is fundamental to the reexamination of the historical bases of our present conceptions of “authorship”:

An “author” in the modern sense is the creator of unique literary, or artistic, “works” the originality of which warrants their protection under laws of intellectual property — Anglo American “copyright” and European “authors’ rights.”

Now Abram Sinnreich, in Mashed Up: Music, Technology, and the Rise of Configurable Culture, extends these insights into the quirks that have produced our notion of authorship and the ways the radical changes in the technological realities governing the creation and distribution of artistic works is undermines that notion. truthdig has posted a substantial excerpt, the entirety of which (like the book, no doubt) is well worth reading. Here’s just a taste, one that begins to develop the relationship between the current conventional wisdom of what an author is and its relationship to our social obsession with converting public goods into private property:

The biggest myth of all is the Romantic notion that artists somehow create their work uniquely and from scratch, that paintings and sculptures and songs emerge fully-formed from their fertile minds like Athena sprang from Zeus. Running a close second is the myth that only a handful of us possess the raw talent – or the genius – to be an artist. According to this myth, the vast majority of us may be able to appreciate art to some degree, but we will never have what it takes to make it. The third myth is that an artist’s success (posthumous though it may be) is proof positive of his worthiness, that the marketplace for art and music functions as some kind of aesthetic meritocracy.

Of course, these myths fly in the face of our everyday experience. We know rationally that Picasso’s cubism looks a lot like Braque’s, and that Michael Jackson sounds a lot like James Brown at 45 RPM. We doodle and sing and dance our way through our days, improvising and embellishing the mundane aspects of our existence with countless unheralded acts of creativity. And we all know that American Idol and its ilk are total B.S. (very entertaining B.S., of course!). Each of us can number among our acquaintance wonderful singers, dancers, painters or writers whose creations rival or outstrip those of their famous counterparts, just as each of us knows at least one beauty who puts the faces on the covers of glossy magazines to shame.

And yet, we believe the myths. How could we not? Who among us has the time, the energy, or even the motivation to buck the overwhelming support the myth of the Artist receives from the institutions that govern our society – to dispute our schools, our churches, even our laws? What is copyright, after all, but the legal assertion of an individual’s sole ownership over a unique artifact of creative expression? These laws, sometimes enforced at gunpoint, require us to believe the myths, or face the consequences.

Of course, there’s a reason the myths exist. Our economy runs on the privatization of hitherto public goods. Our legal system is premised on the individual as the locus of all rights, all liability, all blame. Our society’s profound inequalities are only acceptable because we believe ourselves to live in a meritocracy, a world where a person’s success is de facto proof of his or her inherent worthiness. In short, the myth of the Artist-with-a-capital-A allows us to believe in America-with-a-capital-A.

The ADL forgets things that we should never forget.

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

Making creations property does not promote creation: fashion this time

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Is Elena Kagan’s “thin” record of legal scholarship a disqualification for the Supreme Court? Only if you’re a law professor.

My one reservation about Elena Kagan as a Supreme Court justice has been her extensive experience in legal academia. As readers of this blog know, the disconnect between law professors and law practice is a matter of grave concern to me. I do not understand why the great mass of legal academics consider legal practitioners lesser beings who really don’t belong in law schools and, if they are there, certainly don’t deserve the same status that the pure “scholars” do.

But now I can rest easy — law professors don’t consider Kagan one of them. Why? Because she’s practiced law too much!

Kagan taught at the University of Chicago Law School before going to work for the Clinton White House. During her time at Chicago, as the Chicago Tribune reports, “[s]he did publish several articles and won tenure in 1995, and was even chosen by students as teacher of the year. . . . [Se left to join the office of legal counsel in the Clinton White House shortly after that. As fellow West Wing veterans tell it, she quickly became an aide Clinton would pull aside for hallway conversations about his legislative initiatives on the Hill.”

In 1999, she sought to return to Chicago, but was unable to do so because, the law faculty decided not to give her an offer. They rejected her because her talents were as a lawyer and an administrator! We can’t have any of them cluttering up legal faculty:

“She turned out to be truly great at what she did,” said David Strauss, a U. of C. law professor and one of Kagan’s closest friends on the faculty. If things had gone as she’d planned at the time, he said, “maybe she wouldn’t be where she is now.”

The truly perverse thing is that in retrospect the Chicago professors don’t consider what they did a mistake. Rather, they are proud of it. As Richard Epstein — one of the most respected “scholars” in the U.S. — explains that her talents as a lawyer and an administrator don’t qualify her to teach law students:

Her papers were well-done, but they show exactly the same qualities of mind that prevent you from reaching the top ranks in academia. . . She is good at advising people, fixing things, putting programs in place.

I am not suggesting that legal scholars don’t belong on law faculties. I am suggesting that there are talents other than those of legal scholars that do deserve to be on law faculties and deserve equal status and respect. Why would you not want people who are good lawyers teaching law students who are in law school to become lawyers?

But most of all, I’m suggesting that the criticism of Obama’s choice of Kagan on the grounds that she is not sufficiently “scholarly” is a bunch of b.s. Why wouldn’t being a great teacher, a great administrator, and a great lawyer qualify you to  be on the Supreme Court?

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

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

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

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

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

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

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

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

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

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

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

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

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

Blank slate, my ass.

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

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

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

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

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

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

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

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

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

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

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

We now know Roberts was lying.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kent State 40 years ago, and making up facts to fit today’s world view.

Few things frustrate me in my teaching than my students ignorance of history that predates their adolescence.

Last week, on the 40th anniversary of the Kent State shootings, I wrote about both their impact on me then, and the frightening disconnect I see between current political rhetoric that compares President Obama’s policies to “fascism” and the very different reality of 40 years ago, when National Guard troops really did engage in activity that might genuinely be equated to fascism. I guess I shouldn’t have been surprised that I was attacked for thinking that calling President Obama a “fascist” seems silly to someone who remembers students being shot dead for protesting the invasion of Cambodia in 1970.

But I genuinely was surprised when in the comments to the post criticizing me another blogger stated that in discussing the Kent State shootings I “neglected” to mention that “the National Guard were shot at first” and that the host of the site in response to that comment wrote: ” Thank you very much for the historical accuracy you add to this issue. You are correct. Mr. Friedman has selective memory.”

The problem, of course, is that this purported “historical accuracy” is pure fantasy. There never has been any evidence that the students at Kent State were armed, much less that they shot at the National Guard. As the Cleveland Plain Dealer reports today, [t]wo trials and a presidential commission’s investigation could not determine what initiated the gunfire, although the presidential commission concluded that ‘the indiscriminate firing of rifles into a crowd of students and the deaths that followed were unnecessary, unwarranted and inexcusable.’” Why is this news now? Because the Plain Dealer reported the following 2 days ago:

The Ohio National Guardsmen who fired on students and antiwar protesters at Kent State University on May 4, 1970 were given an order to prepare to shoot, according to a new analysis of a 40-year-old audio tape of the event.

“Guard!” says a male voice on the recording, which two forensic audio experts enhanced and evaluated at the request of The Plain Dealer. Several seconds pass. Then, “All right, prepare to fire!”

“Get down!” someone shouts urgently, presumably in the crowd. Finally, “Guard! . . . ” followed two seconds later by a long, booming volley of gunshots. The entire spoken sequence lasts 17 seconds.

The previously undetected command could begin to explain the central mystery of the Kent State tragedy – why 28 Guardsmen pivoted in unison atop Blanket Hill, raised their rifles and pistols and fired 67 times, killing four students and wounding nine others in an act that galvanized sentiment against the Vietnam War.

People should know that before they begin spouting off about the policies of an American President they perhaps ought to know a little about history. And they certainly should know better than simply to make up facts that fit their world view.

ADDENDUM:

KENT STATE (trailer) from Mark Mori on Vimeo.

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

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

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

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

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

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

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

There are a lot of good reasons to be skeptical of evidence, especially of the sort that can be edited and appears to tell stories that are incredible.

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