It starts out pretty simply with beginning law students. The first time someone says, “But you can’t do that because it’s against the law,” I ask him whether he’s ever driven faster than the speed limit. And then I look at him and say, “But you can’t! It’s against the law.”

The law does, of course, affect a lot of what happens. You’ll speed based on some unconscious calculation regarding the benefits of getting where you’re going faster against the risk of being ticketed and the cost if you are. You might also take into account other costs such as dangers posed by children in the neighborhood, the driving conditions, and the reactions of any passengers to your speed.

It might seem like a simplistic example, but that’s what you have to become conscious of when you’re a lawyer: the risks and costs associated with your behavior, including the risks and costs imposed by law. And if you only consider the risks and costs imposed by law, you’re probably not doing your clients a lot of good.

I am convinced, however, that the central problem with the contemporary U.S. legal system is the cost of actually using the law to get what the law prescribes. It’s insane how much it costs to sue or be sued, and the insanity of those costs skews so much in our society in favor of those with a lot of money regardless of the legal ramifications of that skewing. In copyright, a lot of people complain that digitized information and the internet have made it too expensive to stop people from stealing their property. But far more of an impact is felt by what is called “copyright overclaiming,” the assertion by wealthy (and typically corporate) copyright holders that their rights have been infringed by people who cannot afford to vindicate their legitimate rights to use the copyright material in a lawsuit.

As Richard Posner has written:

Here is a very worrisome problem concerning fair use. It has to do with a dichotomy long noted by legal thinkers between the law on the books and the law in action. They often diverge. And fair use is an example of this divergence. As I said in an earlier posting, fair use often benefits rather than harms the copyright holder. However, it doesn’t always; moreover, even if a copyright holder is not going to lose, and is even going to gain, sales from a degree of unlicensed copying, if he thinks he can extract a license fee, he’ll want to claim that the copying is not fair use; and finally, because the doctrine has vague contours, copyright owners are inclined to interpret it very narrowly, lest it expand by increments.

The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright’s breadth. Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS film recording. The notice will almost always state that no part of the work can be reproduced without the publisher’s (or movie studio’s) permission. This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn’t know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit.

The would-be fair user is likely to be an author, movie director, etc. and he will find that his publisher or studio is a strict copyright policeman. That is, since a publisher worries about expansive fair uses of the books he publishes, he doesn’t want to encourage such uses by permitting his own authors to copy from other publishers’ works. So you have a whole “law in action” law invented by publishers, including ridiculous rules such as that any quotation of more than two lines of a poem requires a copyright license.

Whether it’s the writer’s own publisher or the copyright holder, the instances of copyright overclaiming are endless and seem downright silly until you realize the person being sued by the copyright holder really has no choice. Money rules.

Now, from artnet, comes the latest example of a rich has-been using his a flimsy claim of copyright infringement to squeeze a few more dollars out of an up-and-coming artist:

Perhaps no one was more excited by the long-awaited release of the Beach Boys’ unfinished 1966 album Smile than Erik den Breejen. After Smile came out last year, the young painter (and lifelong Beach Boys fan) set to work on a series of paintings that transformed the lyrics into brightly colored text-blocks, assembled into shapes of ocean waves and smiling lips.

When the exhibition opened at Freight and Volume gallery in December (and was reviewed in these pages by Charlie Finch), den Breejen sent word of the show to Beach Boys lyricist Van Dyke Parks. Den Breejen had tracked down Parks’ manager, thinking that she might share his artworks with his idol. A few days later, Den Breejen was met with a less than enthusiastic reply: a cease-and-desist letter mailed to the gallery from Parks’ attorneys.

* * *

Mike Masnick at techdirt does a far more thorough job, setting forth the long, continual, and continually misbegotten history of existing industries decrying the doom foretold by emerging technologies. He starts with John Philip Sousa, the conductor.

In 1906, he went to Congress to complain about the infernal technology industry and how it was going to ruin music:

These talking machines are going to ruin the artistic development of music in this country. When I was a boy…in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

It’s a long and hilarious history. Did you know that in the 1980s home taping was “killing” the music industry? That using your DVR is theft? That Thomas Edison argued that film projectors would kill the film industry?

The whole thing is worth reading and worth remembering next time you read a screed by Bono or Scott Turow.

You get justice in the next world, in this world you have the law

Today I made a brief car ride with my son last an hour so I could hear all of the latest episode of This American Life. Entitled “DIY,” the summary set forth below, from the This American Life web sitem fails to do justice to a story that brought me to tears, that reminds me again what this whole life of the law ultimately boils down to. Fortunately, you can hear the whole episode yourself from the player pasted in below the summary:

PROLOGUE.

Carl King, a self-taught investigator, talks about the murder case he’s working on now—one the police think they’ve already solved. Carl got started in this business after freeing his close friend from prison. He now runs an organization, called Success to Freedom, devoted to helping wrongfully convicted inmates. (2 minutes)

ACT ONE.

Reporter Anya Bourg tells the story of Carl King’s first case, where he’s able to accomplish what experienced detectives and lawyers were not. He proves that his friend was innocent. In this first half of the show, we hear the story of the crime. In 1980, Mario Hamilton was gunned down in the street in Brooklyn. A teenager claimed to have seen it happen. With police prompting, he fingered a guy named Collin Warner as the shooter. No matter that everyone in the neighborhood said someone else murdered Hamilton and that Warner had nothing to do with it. And no matter that the teenager hadn’t witnessed the murder at all. A jury convicted Warner, and he was sentenced to 15 years to life for killing a man he’d never even heard of. Carl, his childhood friend couldn’t let it rest, and started to fight the conviction. He tells everyone he can about the case. He tracks down witnesses. He teaches himself to read court documents. Eventually, he gets a real estate lawyer hooked on the case. (29 minutes)

ACT TWO.

The story of Collin Warner continues. His friend Carl manages to convince the real shooter and the victim’s brother (who watched him die on the sidewalk) to testify on Collin’s behalf. After 21 years in prison, Collin goes free. (24 minutes)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And it leads to poorly educated students and unhappy people.