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

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

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

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

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

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

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

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

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

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

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

Is “mistaken” slot machine award of $11 million a “mistake” that excuses the casino from paying?

Contract law problem: couple walks into a casino, plays a slot machine, and wins $11 million. Casino representative claims the award was a mistake caused by a computer glitch and that the proper the couple “actually won $1627.82. The $11 million was what we call a ‘reset value.’ It’s what the jackpot would have been after the prize was claimed.”

It’s a real situation, and, apparently, “the second time in three months a Colorado slot machine has made a multi-million dollar mistake. In March, a machine malfunction was blamed for a $42 million dollar jackpot.” (hat tip to techdirt.)

But here’s the question the stories don’t resolve: is the casino entitled to pay only $1,627.82? In legal jargon, the casino is seeking “reformation” of the contract it had entered into with the couple — that is, the casino is claiming it can “rewrite” the contract it had with the couple. I put “rewrite” in quotation marks because the contract was not written but, instead, was implicitly understood by the couple and the casino to provide that if they paid their money and pulled the lever on the slot machine they’d be entitled to the winnings that appeared, if any. The reformed contract would be that the casino agreed to pay any amount up to $1,627,82 in exchange for the couple paying the money necessary to play the game.

I don’t know enough about the regulation of casinos to supply the answer to this problem. It may well be that casino bets are treated differently than other contracts. Nevertheless, if standard contract law does apply, the basis of the casino’s position would be a claim that it had made a mistake — that it understood the machine would operate in a manner that would make the top prize the lower amount but, as events proved, that understanding was mistaken. The mistake would be “unilateral” rather than “mutual” because the couple would not have been operating under the same assumption.

In order to prevail on a defense of mistake, mutual or unilateral, the person asserting the defense must establish it did not “assume the risk” of the mistake.” To prevail on a defense of unilateral mistake, the person must also establish either (1) that enforcing the mistaken contract would be “unconscionable”  or (2) the other party knew of or caused the mistake.

Plainly, the couple did not know of or cause the mistake. Whether enforcement of the deal the couple thought it was getting would be “unconscionable” is a difficult question to answer. A deal is “unconscionable” if it is so grossly unfair it would the court won’t enforce it. The mere fact the casino makes out so badly isn’t “unconscionable.” We enjoy the “freedom of contract,” which means we are entitled to take stupid risks and courts will enforce the deals we made that subjected us to those risks (unless, of course, you’re an investment bank).

But whether the deal is “unconscionable” really turns, to my mind, on the other question: did the casino assume t his risk? On the one hand, the casino is the one responsible for the hardware or software that caused the glitch. Moreover, if I read the casino’s explanation correctly, the $11 million the machine originally indicated the couple had won is within the realm of reasonable payoffs on that machine. “It’s what the jackpot would have been after the prize [I presume the $1,672] was claimed.” But, given the casino’s online page of “jackpot winners” — none of whom won more than $10,500 — that doesn’t really seem to be what the casino intended to say.

Finally, the “glitch” is one the casino had reason to know might happen. It was the second time in three months a Colorado slot machine had made a multi-million dollar mistake, and the earlier one was for quite a bit more ($42 million rather than “merely” $11 million).

On the other hand, if the couple had no reasonable grounds to believe their bet could earn them $11 million, it seems a lot less likely they could prevail. In essence, the defense of mistake does not enforce a deal when it turns out the deal literally enforced would turn out to be something entirely different than what the parties believed they were agreeing to. Were they entering into a bet that they knew might pay $11 million? If so, the couple ought to win. If not, the casino ought to win.

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.

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.

New force for the irreparable harm requirement in copyright preliminary injunction decisions? And might we see the Holden Caulfield sequel after all?

One week ago, the U.S. Court of Appeals for the 2d Circuit issued a very interesting ruling (inserted below)  in the case in which J.D. Salinger sued Frederik Colting, alleging that Colting’s work, 60 Years Later Coming Through the Rye, infringes Salinger’s copyright in Catcher in the Rye. First, and perhaps most importantly, the 2d Circuit stated that “we conclude that the District Court properly determined that Salinger has a likelihood of success on the merits.” In other words, the 2d Circuit concluded that based on the evidence already presented to the trial court, it is likely Salinger (who, since his death, has been replaced as the plaintiff by Coleen Salinger and Matthew Salinger as trustees of the Salinger Literary Trust) it has concluded that 60 Years Later is likely an infringement of Catcher in the Rye.

Nevertheless, the 2d Circuit vacated the trial court’s preliminary injunction forbidding U.S. publication of 60 Years Later and instructed the trial court to reconsider whether a preliminary injunction should issue because, according to the 2d Circuit, the trial court did not apply the appropriate standard in determining whether a preliminary injunction should have been issued. Most importantly, the trial court had not considered whether, assuming it prevails in the end in the case, the Salinger Trust would suffer harm that it could not be compensated for at final judgment in the absence of the preliminary injunction.

It is important to note that a preliminary injunction is an order that someone should do or not do something that is in effect only until the final verdict is rendered in a case. A preliminary injunction is intended to preserve the status quo during trial of a case in situations in which the failure of the court to ensure the preservation of the status quo would somehow damage the party seeking the injunction in a way that would prevent him from being made whole by a final judgment.

Thus, the trial court in the Salinger case only determined that Salinger’s infringement claim had a likelihood of success on the merits. That means that the court leaves open the possibility that after the parties have had a chance to fully develop their evidence and the court has had the opportunity to see witnesses testify live (rather than just via the written affidavits the court earlier considered), it might change its mind on whether Salinger in fact has successfully established an infringement.

More importantly, perhaps, the 2d Circuit made clear that the trial court also needs to consider factors other than the likelihood of the success of the infringement claim. The 2d Circuit stated that the trial court must reconsider whether to grant the preliminary injunction under the standard the U.S. Supreme Court applied in determining the legitimacy of a permanent injunction (that is, an injunction issued at the end of a case as a final judgment) a patent infringement action in eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006). That standard (the typical standard applied in most injunction cases) requires the court to consider four factors: “(1) that [the party seeking the injunction] has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.”

No single factor is dispositive, nor are the factors given equal weight and considered together in any easy formulaic way. All the factors are considered in a holistic evaluation. Interestingly, however, the right to non-monetary, injunctive relief typically requires that the availability of monetary relief be inadequate to make the party seeking the injunction whole. It may be possible for Colting to argue on remand that even should, his work be found to infringe the Salinger Trust’s copyright in Catcher in the Rye, should he be able to publish 60 Years On during the pendency of the case, the Salinger Trust can be made whole by recovering whatever profits have in the meantime been made on the book. The Salinger Trust, in the meantime, is likely to argue the mere publication of the book in the U.S. will harm the Trust in a way that cannot be remedied by money because the mere presence of the book will detract from the value of the Trust’s copyright in the character of Holden Caulfield.

William Patry, in his treatise on copyright, has noted that courts in copyright cases have in the past rarely given real consideration to the “irreparable harm” argument in issuing preliminary injunctions “The gutting is accomplished definitionally: rather than reject the requirement outright, courts define the adequacy of legal remedies in such a way that those remedies can never be considered a substitute for plaintiff’s alleged losses.” William F. Patry, Patry on Copyright, §22:12, citing Douglas Laycock, The Death of the Irreparable Injury Rule, 103 Harv. L. Rev. 687, 692 (1990). Thus, Patry writes, “Preliminary injunctions are issued far more often than they should be, at least from a review of available decisions.”

It makes me wonder whether the 2d Circuit is taking a stand here and insisting that the trial court give real consideration to the requirement that the Salinger Trust could not be made whole, even if it eventually prevails on its infringement claim, in the absence of a preliminary injunction. If so, we may yet see 60 Years On published in the U.S., even if for only a brief time.

Salinger v Colting 2d Circuit Appeal of Prelim Injunction Decision

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

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

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

Research only begins with information: patience, insight, and imagination are the most important parts of it.

Suffering from one of my occasional bouts with insomnia the other night, I came upon a message on the legal writing professors’ listserv from a professor who was seeking advice from students who were wondering what tricks or tools they might use to find the analogies and legal arguments that they were finding so difficult to discover in the course of their legal research. No doubt the hour contributed to the poor quality of my response. In her poem “4 a.m.,” Wislawa Szymborska writes that “No one feels fine at four a.m.” But the passionate rage I felt at the belief that there are simple tips and tricks to effective research of any sort was not purely the product of the feeling Szymborska describes as “Hollow. Vain./Rock bottom of all the other hours.”

We have a serious misunderstanding these days about what constitutes research.

According to the Oxford English Dictionary, research is the

Systematic investigation or inquiry aimed at contributing to knowledge of a theory, topic, etc., by careful consideration, observation, or study of a subject.

Let’s assume that the inquiry is into a legal topic. The first element of research is a “systematic investigation or inquiry.” I suppose location of a database or the use of a particular search algorithm could be considered one sort of a systematic investigation, but to suppose that the notion of systematic investigation is exhausted by the location of sources is nonsensical. I can point students to particular treatises I personally find of great value in certain subjects, and of course legal research is filled with secondary sources and finding tools that fill virtually any style one might find useful in such sources. And we live in the age of databases — there are databases for everything.

But systematic investigation is barely begun, if even begun at all, by merely finding a source or set of sources in which answers might lie. The real art of research lies in the second part of that definition of the term: “careful consideration, observation, or study.”

The answers to difficult legal questions don’t lie around waiting to be found as if they are treasure chests left lying on forest floors. They are constructed and created by elements buried within our universe of databases. Thus, research that is genuine research not only requires Sisyphean patience in combing through the sources, it requires also consideration, observation, and study of what one finds within those sources so that one can, first, identify the elements that matter, and, second, put those important, buried, and isolated elements together in some useful and novel way.

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

In short, research, analysis, and theorizing are all a single activity — finding things, making sure they are the right things, and putting them together in the right ways.

To suggest otherwise would be to suggest that finding the historical sources concerning the U.S. Civil War that James McPherson used in writing his brilliant history of that conflict was virtually all the work that had to be done to produce the book. After all, once one has found the sources, the writing is just a matter of stringing the information in those sources together, right?

Of course not. One must find the sources, of course. But the research is inseparable from the perspicacious mind that finds within those sources the elements that the creative and original mind then can mold into a work that educates, entertains, moves, and even convinces.

There is no such thing as research apart from insight and imagination. And an enormous amount of work.

And so, in perhaps the most coherent part of my e-mail the other night, I wrote:

Research is about drawing connections between ideas and words from wildly disparate sources, connections that can only be found by means of painstakingly patient reading of one source after another, tracing connections between sources that might be as seemingly trivial as the bare citation in one case to a another case in connection with a discussion in the first case that strikes the attentive and imaginative reader as potentially relevant to the legal issue he or she is researching. Obviously, tracing such connections (and the myriad of similarly subtle connections effective researchers exploit) requires an enormous amount of concentration, and enormous amount of patience with the continual following up of leads that go nowhere, an enormous amount of imagination to spot connections that courts don’t make explicit (and often don’t even recognize the true significance of), and an abandonment of the idea that engaging in research in this manner is to neglect (in some Luddite fashion) “tools” that can do the job so much more quickly and effectively.

Research is painstaking work that requires enormous imagination and is inextricably intertwined with and develops simultaneously with the development of the legal analysis the research is intended to support. (Which is one reason I go ballistic anytime someone suggests librarians rather than legal writing professors should be teaching research to first year law students, as if legal research is simply a matter of knowing sources and databases and how to develop effective word searches rather than being part and parcel of the writing and analysis.)

I’ve always told my students that law is as requires as much creativity and originality as any human endeavor. I mean it.

One last point: I don’t think Google is making us stupid. Yes, there is more information available to us than ever before. But, again, we can’t confuse information with research. Research is inquiry that contributes to knowledge. Information may be a sine qua non of research, but without attention, insight, and imagination, it isn’t research at all.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Vengeance breeds vengeance; we are a country of laws, not torture.

There’s creativity in legal thought, and then there’s “interpretation” utterly unhinged from any logic or authority to justify evils such as torture. Eric Martin at Obsidian wings points out another stupid mistake in any argument in favor of torturing in order to obtain information to aid the so-called “war on terror” — it discourages people from coming forward with information. People applaud “the underpants bomber’s father, Alhaji Umaru Mutallab, who had the strength of character to report his son’s activities to U.S. authorities despite the possible legal repercussions for his son.” But if a father knows his son will be tortured, he’s far, far less likely to turn him in. And, of course, if we’re trying to win the hearts and minds of, among others, Afghanis, aren’t we undercutting our purposes by betraying our morality and our laws? Martin writes:

Alienated Muslims that feel guilty for nothing other than being Muslim are less likely to cooperate with U.S. authorities in thwarting plots. Parents, siblings and friends will not be as quick to intercede if they think their loved one will be brutalized, psychologically scarred beyond repair and denied basic rights. Innocent victims of military strikes will be radicalized as enemies, not converted to allies.

Yet, despite the stakes, certain pundits would have us sacrifice potentially life-saving assets for the sake of maintaining a torture regime – a morally reprehensible practice in its own right, one that corrupts prisoner and questioner alike, and that produces inferior, unreliable intelligence regardless. Not only do they want to keep employing these self-defeating policies that sully our principles, they intend to demagogue the issues relentlessly. Dick Cheney and the GOP leadership – as well as their media enablers – use Obama’s refusal to torture and profile as political cudgels when, in reality, the blows will they attempt will fall most heavily on the American people in the end.

At the end of The Libation Bearers, the second play in the Oresteia trilogy, the story of the seemingly endless cycle of guilt and retribution that plagued the noble House of Atreus, Aeschylus asks:

Where will it end? When will it all/ be lulled back into sleep, and cease,/ the bloody hatred, the destruction?

The answer is the culmination of the third play, The Eumenides: Athena establishes a court of law as the remedy, in place of vengeance, for criminal guilt. At bottom, I think that vengeance is all the advocates of torture can legitimately claim we are getting from torture, and we’ve understood for thousands of years that vengeance does nothing but breed vengeance.

Addendum: I realized that in discussing the Oresteia in connection with torture and the rule of law, I was “betraying” my liberal arts background. But, of course, our blindness to the consequences of abandoning the rule of law because of the alleged necessities brought on by the 9/11 attacks goes hand in hand with a culture that has decided that money is the only valid measuring stick of value and that “free” markets are the best means of making all our choices, even our choices about war.

And the market is governing our choices about education, making liberal arts undergraduate majors so unpopular they’re beginning to disappear. Thus, according to an annual survey by the University of California, Los Angeles, of more than 400,000 incoming freshmen:

In 1971, 37 percent responded that it was essential or very important to be “very well-off financially,” while 73 percent said the same about “developing a meaningful philosophy of life.” In 2009, the values were nearly reversed: 78 percent identified wealth as a goal, while 48 percent were after a meaningful philosophy.

People don’t read the Oresteia anymore. I would bet only a handful of my students even know what it is. So I’m afraid the only thing I don’t agree with when Glenn Greenwald writes the following is any particular sense of being astounded:

It’s truly astounding to watch us — for a full decade — send fighter jets and drones and bombs and invading forces and teams of torturers and kidnappers to that part of the world, or, as we were doing long before 9/11, to overthrow their governments, prop up their dictators, occupy what they perceive as holy land with our foreign troops, and arm Israel to the teeth, and then act surprised and confused when some of them want to attack us. In general, the U.S. only attacks countries with no capabilities to attack us back in the “homeland” — at least not with conventional forces. As a result, we have come to believe that any forms of violence we perpetrate on them over there is justifiable and natural, but the Laws of Humanity are instantly breached in the most egregious ways whenever they bring violence back to the U.S., aimed at Americans. It’s just impossible to listen to discussions grounded in this warped mentality without being astounded at how irrational it is. What do Americans think is going to happen if we continue to engage in this conduct, in this always-widening “war”?

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):

A cell phone really (not just abstractly) is different than an address book.

The Ohio Supreme Court ruled yesterday (pdf) that police officers must obtain a search warrant before searching the contents of a suspect’s cell phone unless the officers’ safety is at stake. The specific data at issue were the records of the telephone calls made to and from the suspect’s cell phone.  As the court made clear, “[o]nce the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.” Slip op., ¶23.

In reaching its decision, the court first distinguished cell phones from “closed containers,” “physical objects capable of holding other physical objects.” Such objects on or in the vicinity of a suspect are subject to search without a warrant. ” Indeed, the United States Supreme Court has stated that in this situation, ‘container’ means ‘any object capable of holding another object.’  One such example is a cigarette package containing drugs found in a person’s pocket.” Id., ¶19 (citations omitted). The dissenin the Ohio case concluded that the cell phone is a “closed container” because “a cell phone’s digital address book is akin to traditional address books carried on the person. Courts have upheld police officers’ search of an address book found on an arrestee’s person during a search incident to a lawful arrest.  The phone’s call list is similar, showing a list of telephone numbers that called to or were called from the phone.” Id., ¶34.

The dissent’s reasoning seems odd. The phone’s call list is not “similar” to an “address book.” The call list is electronically generated by making and receiving telephone calls, and thus is the same kind of electronically generated information regularly produced by, among other devices, your laptop. Thus, the majority of the court were convinced that because modern cell phones “have the capacity for storing immense amounts of private information” they are thus are more like laptop computers, in which arrestees have significant privacy interests — in contrast to address books or pagers found on their persons, in which defendants have lesser privacy interests. Id., ¶18. The court did not equate cell phones precisely to laptops (though no doubt iPhone users might take exception to the court’s failure to do so), but the similarity, in combination with the fact the police have the means necessary by warrant to obtain information from a cell phone, compelled the court’s conclusion:

Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain. Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents. Id., ¶24.

The dissent, on the other hand, unable to distinguish a cell phone from an address book, accused the majority of “needlessly embark[ing] upon a review of cell phone capabilities in the abstract.” Id., ¶30.

Funny, I didn’t know that the review of differences between cell phones and address books in 2009 required “abstract” thinking.

Interpreting, accurately, what isn’t there — the Redactor’s Dilemma

Any lawyer knows that “non-facts” — what people don’t do, things that don’t happen, words that aren’t said — are as telling as what we typically think of as “facts.” Julian Sanchez, in a post entitled The Redactor’s Dilemma, gives a brilliant demonstration of this truth. Sanchez has been “poring over the FOIA documents on cell phone lojacking obtained by the ACLU.” Like many stacks of documents lawyers are accustomed to examining, the ones Sanchez examined are heavily redacted. As he explains:

[O]ver time, you start developing little heuristics for trying to put the puzzle pieces together, to at least limit the domain of what might be in those black boxes. What can context tell you? What can you infer from the length of the redacted material? Looking at these sets of documents, I think I may have picked up on an interesting variation on Mike Masnick’s “Streisand Effect”—that now-familiar phenomenon where efforts to suppress information end up drawing all the more attention to it.

It was pretty easy for Sanchez to figure out that one of the redactions was the statutory definition of “basic subscriber information” found in the U.S. Code, and his first reaction was to wonder [w]hat sort of jackass . . . had concluded that the contents of American public laws were some kind of operational secret?” But then, of course, he realized “the investigative technique [the redactors were] taking pains to conceal . . . involved exploiting that part of the statute in some crucial way.” The post is worth reading in its entirety for the truth it uncovers: prosecutors are seeking cell tower information from telcoms, rather than GPS info, because doing so requiring the prosecutors to satisfy a lower legal standard and they can easily get enough from that information to determine where a person is.

But what I find most interesting is what Sanchez calls the Redactor’s Dilemma — the huge risk that redactions themselves will reveal to informed readers what it is that’s been redacted:

Imagine you’re given the task of censoring documents like these for public release. There are some bits that you just obviously cut out—whole paragraphs describing operational details that, for good reasons or bad, you want to keep secret. But that won’t be quite enough. Because you’re probably going to have folks reading the documents who know a little something about the law, a little something about the relevant technology, and a little something about surveillance tactics generally. Folks who might piece together one of those facts you’ve excised, not from an explicit statement, but from individually innocuous clues that would nevertheless reveal something if an attentive reader pus them together in the right way.

This is where the dilemma arises. Because if anyone does happen to determine, by other means, what lies behind one or two of those black boxes, you’ve actually given them a much bigger clue. You’ve pointed them to the precise facts that, assembled in the proper order and with the right background knowledge, hint at what you were trying to hide—facts they might otherwise skimmed over without a second glance. But it’s worse than that, even. Because the facts really are more or less innocuous in isolation, a lot of that information won’t be secret per se. The choice of just which lines to redact involves a fair amount of imaginative guesswork—which bits might a reader combine in a chain of inference? That means if similar documents are being censored by different redactors, you’re apt to get the worst of both worlds—many pieces of the puzzle left exposed in one document or another, sufficiently parallel in structure to make them mutually completing, with the potential significance of each one highlighted by its absence from the others.

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.

Money or racism? Could the Dolans just do the right thing already? The courts won’t.

The Lanham Act, the federal law governing trademarks prohibits trademarks “which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt. . . .” Nevertheless, the Supreme Court has declined to review a lower court decision (pdf download) in Pro Football, Inc. v. Harjo ruling that, even assuming the name of the Washington, D.C. football team, Redskins, is disparaging to Native Americans or brings them into contempt, the Redskins cannot be forced to give up their trademark rights. Why? Because, given the length of time that the Redskins have had the name without challenge and the delay in the plaintiffs bringing their claim, it would be unfair to deprive the football team of the profits to be made from selling goods bearing the Redskins name.

There are serious questions to be raised about the legal merits of the NFL’s position — among other points, the Lanham Act states that challenges to a trademark can come “at any time.” But my more serious question, to Daniel Snyder and to Larry Dolan, is this: why in the world would you want to make money off of a symbol so many people consider racist? Well, Larry Dolan’s answer is that he doesn’t see evidence that Chief Wahoo is racist.

It’s amazing how money can blind someone.

Homeland uber alles.

I’m not Hannah Arendt’s biggest fan, but the prominence she gave to “banality of evil” is an accomplishment that ought to be honored through the ages. As Wikipedia explains her thesis as well as it can be concisely described, “the great evils in history generally, and the Holocaust in particular, were not executed by fanatics or sociopaths but rather by ordinary people who accepted the premises of their state and therefore participated with the view that their actions were normal.” The role of the legal profession in Nazi Germany is, I think, a relatively neglected topic, but one can recognize when judges engage in specious reasoning to transform ugly, degrading, murderous, and unspeakable acts into the “normal” way of protecting our homeland.

I’ve compared the case of Maher Ahar to The Trial. I’m afraid that comparing it to fiction was my own effort to deflect the ugliness. As Glenn Greenwald describes Arar’s nightmare:

Maher Arar is both a Canadian and Syrian citizen of Syrian descent. A telecommunications engineer and graduate of Montreal’s McGill University, he has lived in Canada since he’s 17 years old. In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was “rendered” — despite his pleas that he would be tortured — to Syria, to be interrogated and tortured. He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured. Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing.

Yesterday, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of Arar’s lawsuit (pdf) alleging, among other things, that his treatment by U.S. officials violated his constitutional rights to due process. Why? Because he couldn’t name the people who did what they did to him:

Arar alleges that “Defendants” — undifferentiated — “denied Mr. Arar effective access to consular assistance, the courts, his lawyers, and family members” in order to effectuate his removal to Syria. But he fails to specify any culpable action taken by any single defendant, and does not allege the “meeting of the minds” that a plausible conspiracy claim requires. He alleges (in passive voice) that his requests to make phone calls “were ignored,” and that “he was told” that he was not entitled to a lawyer, but he fails to link these denials to any defendant, named or unnamed. Given this omission, . . . we agree with the District Court and the panel majority that this Count of the complaint must be dismissed. Slip op. at 24-25 (emphasis added).

So next time you’re hauled in off the streets, held incommunicado, and sent to Syria to be tortured, be sure to get down the names of the “officials” doing this to you. Otherwise, you have no constitutional protections against this treatment. It’s all in the name of national security, and that trumps all, right?

This is “judging”?

Shepard Fairey and Manny Garcia: is Garcia lying, or is Tom Gralish(?)? Or is there some other explanation?

As much as law students and law professors want legal questions to resolve into nice, neat abstract questions, they seldom do.

Legal questions are only answered definitively by courts when those questions are necessary to resolve lawsuits, and lawsuits necessarily involve all the messy reality of human life, a messy reality which seldom allows one to merely hone straight in on some nice, neat question (like, hey, what is fair use (in some nice, easy-to-follow rule so we can definitely predict what we can and can’t do)?

One problem — the most important one for lawyers — is figuring out what happened. It’s amazing how people take the facts for granted, as if we have God’s videotape to play to a jury or something. Instead, we have conflicting evidence. And the court has to decide what it all means.

So, when Manny Garcia first learned Shepard Fairey had used his photograph for the Obama Hope poster, did he think what Fairey had done was cool and not even conceive of getting involved in a lawsuit, or was he angry at Fairey and already contemplating legal action?

Last January 23, Tom Gralish, a photographer for the Philadelphia Inquirer who also writes the blog Scene on the Road, wrote that, in a conversation with Manny Garcia two days earlier, Garcia “was quick to add he is not mad at Fairey, and he’s not looking at any lawsuits. ‘I know artists like to look at things; they see things and they make stuff. It’s a really cool piece of work. I wouldn’t mind getting a signed litho or something from the artist to put up on my wall.’”

In paragraph 45 of his Answer to Fairey’s Counterclaim, filed on September 8 in the lawsuit between himself, Fairey, and the Associated Press, Garcia “denies he stated in interviews that he was not ‘angry with Fairey or interested in joining any lawsuits.’”

Does that mean he never stated precisely those words? Or does it mean he did not express to Gralish what Gralish reported? It certainly seems to be the latter. And, if that’s the case, then is he calling Gralish a liar?

Welcome to the law.

ADDENDUM: Tom Gralish’s series of posts chronicling his efforts to identify the photograph that served as the source of Fairey’s Obama Hope poster are here. The posts re-enforce something I have suggested before: Garcia’s photograph just isn’t that original. Since the nature of the copyrighted work is relevant to any fair use analysis, and since the copyrighted work is entitled to less protection to the extent it is less creative, the generic nature of the photo militates in favor of Fairey. But I still think Fairey’s work is so obviously “transformative” that it constitutes fair use. Why? Because it had a resonance in the nation that none of the photos Gralish examined would have had on their own. If Fairey’s ability to confer that kind of power upon the source photo isn’t transformative, I ‘m not sure I know what is. And, incidentally, most of my previous posts on the case are here.

Cleveland Museum of Art allowed to use 50% of income from trusts for expansion; 1st time in Ohio since 1955.

A follow up to my posts (here and here) regarding the power of museums to deviate from the terms of a donor’s limitations on the use of money donated:

Last week, the Cleveland Museum of Art won permission from a Cuyahoga County Probate Court judge to use 49.99% of the income (not the principal) from 4 trusts over a period of 10 years (up to an amount not to exceed $75 million) to finance the museum’s ongoing renovation and expansion. The 4 trusts were established in 1920, 1935, 1938, and 1952. It is the first time since 1955 that the museum has sought such relief from the terms of a donor’s trust, which is also the last time such relief has been sought by any museum in Ohio.

These facts plainly do not justify the fears the museum’s critics hold up as the consequence of such rulings.

ADDENDUM: The Art Law Blog was right on top of this, and also has written, commented upon, and linked to articles about the background.

How do we decide how a long buried corpse would want his art treated? And is the corpse’s former intent all we care about?

My post last week about art museums and the doctrine of deviation provoked in the comments precisely the kind of discussion/argument that I tried to point out is the whole point: how do we decide how to apply rules or other written expressions when they are applied in contexts that have radically changed. To literally apply the words written by a donor that restrict the use of a gift by an art museum when doing so would threaten the entire point of the gift (a thriving art museum) seems pretty absurd to me. If what we’re trying to do is discern a donor’s intent, shouldn’t we be a little more flexible?

Thus, I am particularly pleased to note Donn Zaretsky’s reference to the Philadelphia Inquirer’s conclusion that the new Barnes Foundation building (the subject of a couple of those comments to my original post) shows “obvious respect for Barnes’ legacy – for his idiosyncratic view of how art should be displayed and appreciated – should reassure supporters of the move.” That’s precisely the point: Barnes’ original bequest might have forbidden the move, but the result of his restriction, 60 years after his death, was the closing off of a multi-billion dollar collection of art to the wider public, strife between the Foundation and its neighbors, and a threat to the very existence of the Foundation itself. Isn’t it at least arguable that satisfying much of Barnes’ obvious intent — precisely how the art is housed and shown — while making it accessible to the world in a location where it is welcome is a reasonable effort to accommodate what he would have wanted? And isn’t it appropriate that we have institutions like courts to decide whether that reasonable argument or the opposing one (Barnes stated in his bequest the collection should never be moved, so it should never be moved, even if there are circumstances now that he did not anticipate and we could not predict his reaction to)?

And that’s not even to mention that there is a public interest involved. Are we to so honor “property” rights that we would sacrifice billions of dollars of the world’s culture to the whim of the owner? As Zaretsky asks in another post:

What if Barnes’s Will had provided that the works were to be exhibited in Merion for exactly 50 years — and then were to be burned in a big bonfire?

Should we honor donor intent in that case?

Or can we agree that sometimes the public interest trumps the donor’s intent?