Jury rules against Donald Rosenberg

A jury found for the Plain Dealer and the Cleveland Orchestra’s governing body yesterday, rejecting all of reporter Donald Rosenberg’s legal claims arising out of the decision by the Plain Dealer to relieve him of his duties as the Orchestra’s reviewer and reassign him.

As anyone who has followed my speculations on this lawsuit knows, I have always been skeptical of the legal merits of Rosenberg’s claims. As the NY Times article linked to above explains, the lawsuit “became a cause célèbre among music critics, who charged that The Plain Dealer had caved in to complaints from a subject of its reviews, touching a raw nerve among those who review arts for a living.”

Nevertheless, I could not discern any contractual right Rosenberg had to the job reviewing the Orchestra, so the reassignment didn’t seem to constitute any breach of contract. The Orchestra’s representatives have every right to complain about negative reviews to the Plain Dealer’s management as long as they didn’t lie about him in expressing those complaints. And the addition of an age discrimination claim simply didn’t fit the gist of the complaint — how could it be that the Plain Dealer’s reassignment of Rosenberg under pressure from the Orchestra constituted age discrimination?

If I were Rosenberg’s lawyer, I’d advise him not to appeal. The Los Angeles Times reports, however, that he hasn’t ruled out that possibility. It’s not that I don’t care if the Plain Dealer did cave into pressure from the Orchestra (certainly not the only quarter from which complaints about Rosenberg were heard). It’s that I don’t think a lawsuit by an individual who is reassigned as a result of that kind of pressure is the means of ensuring journalistic integrity.

Judge refuses to sanction Shepard Fairey.

The common wisdom seems to be that the judge in Shepard Fairey’s lawsuit with AP and Manny Garcia over the use Fairey made of Garcia’s photo in creating the Obama Hope poster would be sanctioned for having lied during the course of the lawsuit about knowing he used the photo that was identified in February 2009 as his source. The sanctions could range from monetary “fines” all the way up to ruling against Fairey without ever having determined the legitimacy of his legal claims. But earlier this week the judge, Alvin K. Hellerstein, issued an order in which he denied AP’s pending motion for sanctions. The order states that AP has engaged in an “endless quest” for information from Fairey in an effort to pin him down. At the same time, the judge acknowledged that Fairey’s carefully phrased answers to questions and his earlier dishonesty would be left to be judged for themselves during trial: ”The Associated Press, in its effort to pin down Fairey, has engaged in an endless quest for discovery. If there has been willfulness, it will be proved at trial through Fairey’s evasiveness.”

On tossing aside centuries of tradition.

New York Times, May 2009:

Racially segregated proms have been held in Montgomery County [,Georgia] — where about two-thirds of the population is white — almost every year since its schools were integrated in 1971. Such proms are, by many accounts, longstanding traditions in towns across the rural South, though in recent years a number of communities have successfully pushed for change. . . . The senior proms held by Montgomery County High School students — referred to by many students as “the black-folks prom” and “the white-folks prom” — are organized outside school through student committees with the help of parents. All students are welcome at the black prom, though generally few if any white students show up. The white prom, students say, remains governed by a largely unspoken set of rules about who may come. Black members of the student council say they have asked school administrators about holding a single school-sponsored prom, but that, along with efforts to collaborate with white prom planners, has failed. According to Timothy Wiggs, the outgoing student council president and one of 21 black students graduating this year, “We just never get anywhere with it.” Principal Luke Smith says the school has no plans to sponsor a prom, noting that when it did so in 1995, attendance was poor.

Students of both races say that interracial friendships are common at Montgomery County High School. Black and white students also date one another, though often out of sight of judgmental parents. “Most of the students do want to have a prom together,” says Terra Fountain, a white 18-year-old who graduated from Montgomery County High School last year and is now living with her black boyfriend. “But it’s the white parents who say no. … They’re like, if you’re going with the black people, I’m not going to pay for it.”

“It’s awkward,” acknowledges JonPaul Edge, a senior who is white. “I have as many black friends as I do white friends. We do everything else together. We hang out. We play sports together. We go to class together. I don’t think anybody at our school is racist.” Trying to explain the continued existence of segregated proms, Edge falls back on the same reasoning offered by a number of white students and their parents. “It’s how it’s always been,” he says. “It’s just a tradition.”

The decision in Perry v. City and County of San Francisco — trial court decision striking down Proposition 8, which banned gay marriage.

Proposition 8 Gay Marriage Trial Court Decision, Perry v. City and County of San Francisco

The ADL forgets things that we should never forget.

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

Judge dismisses one of Donald Rosenberg’s claims against the Plain Dealer.

As the Plain Dealer reports, on Friday, the judge in Donald Rosenberg’s lawsuit against the Plain Dealer and the Musical Arts Association (the body that manages the Cleveland Orchestra) dismissed one of two of Rosenberg’s claims against the Plain Dealer — the claim that the Plain Dealer had unlawfully retaliated against Rosenberg in forbidding him to use the words “Cleveland Orchestra” in his reporting after he had filed his lawsuit. The judge granted what is called a “directed verdict” on the claim even before the Plain Dealer has presented its evidence to the jury, deciding that either the facts are undisputed and do not establish Rosenberg’s legal right to recover or that even assuming the facts are as Rosenberg contends they are he is not entitled to recover.

In order to recover on a retaliation claim, an employee must show that in response to a discrimination claim the employer made changes in the terms of employment that “might have dissuaded a reasonable worker from making or supporting” the claim. It doesn’t seem particularly controversial that the judge decided that forbidding Rosenberg from referring to one of the parties he was suing would have dissuaded him from filing the lawsuit or that the Plain Dealer intended to punish him for filing the lawsuit. The Plain Dealer argued, in fact, that the restriction was intended to protect against any claim that Rosenberg had a conflict of interest. Rosenberg, on the other hand, argued that the restriction “effectively limited his reporting about other fine arts matters in Northeast Ohio because so many of them could also involve Cleveland Orchestra players.”

My access to the case thus far has largely been limited to what has been reported in the press, but it’s difficult for me to imagine the inability to identify someone as a member of the Orchestra constituted any real restriction on Rosenberg’s reporting. It’s much easier for me to imagine that argument is a lawyer’s effort to support a very weak claim.

Eugene R. Anderson, R.I.P.

Gene Anderson, one of the truly great people I have had the pleasure of knowing personally, died this morning. Gene was a brilliant lawyer, a wonderful human being, and one of those genuinely creative and original souls who did things the way he believed they should be done, not merely the way everyone is told they should be done. I consider myself blessed to have had the opportunity to learn from him. It doesn’t surprise me to have heard that yesterday, knowing he had only a brief time left, Gene planned his funeral, which will go on as he’d decided on Monday, August 2nd, at 4 PM at the Frank E. Campbell Funeral Home, 1076 Madison Avenue (between 81st and 82nd Streets), NY, NY.

Addendum: here’s Gene’s obituary in the NY Times. The Wall Street Journal adds the following:

Born in 1927 in Portland, Ore., and the son of a single mother who was frequently disabled, he grew up partly in foster homes and orphanages. He put himself through the University of California, Los Angeles. Upon graduation, he began hitchhiking across the country. One person who gave him a ride was a lawyer who would later help him get into Harvard Law School.

After becoming a partner at Chadbourne & Parke, he went to the U.S. Attorney’s office in the Southern District of New York, where he worked for Robert M. Morgenthau, who would later become Manhattan District Attorney. Mr. Anderson married Mr. Morgenthau’s daughter, Jenny.

Mr. Anderson’s office was decorated with a moose head his brother carved with a chainsaw, and instead of his law degree, he hung his kindergarten certificate on the wall alongside plaques from pro bono clients.

Donald Rosenberg v. Plain Dealer & Cleveland Orchestra, continued

The Plain Dealer reports that attorneys for Donald Rosenberg completed the presentation of their evidence to the jury in Rosenberg’s lawsuit against the Plain Dealer and the Musical Arts Association, the governing body of the Cleveland Orchestra. I expressed a lot of my views on what I perceive to be the weaknesses of Rosenberg’s case a couple of weeks ago. What I have read so far has not changed my opinion.

First, it is important to note that Rosenberg is not claiming that the Plain Dealer was in breach of contract when it reassigned him to a different  beat after his many years of writing reviews of the Orchestra. His only legal claim against the newspaper is that the reassignment constituted age discrimination. As I wrote previously, that’s an odd claim, since the entire thrust of the case is that the reassignment was wrongful because it was done at the Orchestra’s behest. Reassignment under pressure of someone who doesn’t like what’s being written doesn’t sound like age discrimination to me. And he testified that he never mentioned age discrimination at the time of the reassignment. According to the Plain Dealer story, he thought it was “onerous and unusual” that the person doing the reassigning had told him he’d covered the Orchestra for a long time. I guess he’s claiming the Plain Dealer reassigned him because the beat had become too burdensome after his many years, but I cannot imagine that the physical and mental burden of covering the Orchestra formed any part of the Plain Dealer’s thinking in reassigning a 57 year old guy to a different beat.

It’s also not clear at all what legal damages Rosenberg suffered. He testified that he had not lost pay or benefits under his reassignment in 2008. He had no legal right to the position reviewing the Orchestra, and try as he might to establish that his critical reputation has suffered, he by all appearances seems to have skyrocketed in reputation in the music community, which sees him as a martyr on the altar of critical integrity.

It’s funny: the music community never seemed to be particularly concerned with Rosenberg’s critical integrity during his years covering the Orchestra under the direction of Christoph von Dohnányi despite his close friendship with von Dohnányi.

Rosenberg’s claims against the Musical Arts Association are in the nature of defamation claims. The problem is that unless he can establish that someone affiliated with the Orchestra lied about him, there doesn’t seem much there there. There’s nothing illicit about someone who’s being reviewed complaining about the review. Nor is there anything illicit in the employer of the reviewer listening to and even responding to those complaints. And it’s not as if there haven’t been complaints about Rosenberg. Rosenberg admitted on the stand that, in the Plain Dealer’s words, “others — including newspaper readers, members of the orchestra and others in the community — had complained about what was perceived as a pervasive negative tenor to his reviews of [Franz] Welser-Most [the Orchestra's conductor and von Dohnányi's succesaor] .”

Don’t get me wrong. I’m not thrilled with the idea of newspapers shaping their coverage to please the subjects. I just don’t see the newspapers employees having any legal right to ensure that the newspapers don’t do so. Nor is the Plain Dealer’s alleged favoritism of its subject in this instance, even if true, one of the more glaring instances of this aspect of journalism. There’s no First Amendment requirement that the media be objective.

Now that Rosenberg’s lawyers have called all of their own witnesses, the Plain Dealer and the Musical Arts Association will have an opportunity to call their own. Then the lawyers will give closing arguments, the judge will instruct the jury in the law applicable to the evidence, and the jury will deliberate. At several steps on the way, as well, the judge could conceivably stop the trial and rule in favor of the defendants if the judge decides no reasonable jury could find that Rosenberg can recover on his legal claims.

Stay tuned.

Goldman Sachs is a bunch of big fat liars.

Let’s make sure we understand why Goldman Sachs was willing to pay $550 million to settle the SEC’s lawsuit against it – “one of the largest penalties ever paid by a Wall Street Firm.” Goldman Sachs committed fraud to get investors to buy into a fund of securities. It isn’t even a difficult fraud to understand.

Goldman agreed with John A. Paulson, a prominent hedge fund manager who earned an estimated $3.7 billion in 2007, that Paulson could choose the particular mortgage-backed securities that Goldman would sell. Paulson chose securities he knew would default. At the same time he bought credit default swaps on those same securities — in essence, insurance policies that would pay him the value of those securities if they defaulted. In short, he chose the securities for the fund because he knew they would fail and their failure would profit him mightily.

Goldman’s problem, of course, is that no one would buy the securities if they knew Paulson had chosen them. As the complaint filed in the case by the SEC (embedded below) states: Goldman “knew that it would be difficult, if not impossible, to” sell the securities in the fund “if they disclosed to investors that” someone who had “shorted” the securities, “such as Paulson, played a significant role in selecting the securities.”

So Goldman went out and got ACA Management LLC, a company with experience in analyzing the credit risks associated with funds like that it was selling, to agree to be “Portfolio Selection Agent” — that is, to represent itself as the entity that had chosen the securities Goldman was selling. Of course, ACA was not the Portfolio Selection Agent, but Goldman knew what it needed. As Goldman’s Fabrice B. Tourre wrote in a memo:

“One thing that we need to make sure ACA understands is that we want their name on this transaction. This is a transaction for which they are acting as portfolio selection agent, this will be important that we can use ACA’s branding to help distribute the bonds.”

Tourre later wrote in another memo:

“We expect to leverage ACA’s credibility and franchise to help distribute this Transaction.”

I’m happy to learn that the settlement does not include any agreement with Tourre personally. One thing I wonder, though: wasn’t Paulson part of a conspiracy to defraud investors? Why has he gotten to go off with his billions untouched by the SEC?

S.E.C.’s Civil Lawsuit Against Goldman Over C.D.O

Donald Rosenberg’s lawsuit against the Cleveland Orchestra goes to trial, but stupidity is not an actionable offense.

Back in 2008 I wrote about Donald Rosenberg’s lawsuit against the Plain Dealer, the Cleveland Orchestra, its conductor Franz Welser-Möst, and members of both organizations. Rosenberg alleges that the defendants engaged in a conspiracy to remove him as the Plain Dealer’s music critic. As the Plain Dealer reports, the trial of Rosenberg’s claims began this week. Apparently, Rosenberg has amended his complaint since he originally filed the lawsuit to add an age discrimination claim:

Rosenberg’s complaint against the newspaper is that his reassignment was an act of age discrimination and that the paper retaliated against him for filing the lawsuit by preventing him from even mentioning the orchestra in the course of his reporting.

My guess is that the age discrimination claim against the newspaper was added because there was no breach of contract that resulted from the newspaper’s reassignment of Rosenberg to a different beat. He might not have liked it, and, indeed, the move might have been monumentally stupid, but there is no legal right to recover damages for being treated stupidly. I really don’t see the connection, though, between the age discrimination claim and what Rosenberg alleges the newspaper did wrong in caving to pressure from the Cleveland Orchestra, which did not like Rosenberg’s scathing reviews of the orchestra under Welser-Möst’s direction. If they reassigned him because of the complaints, how does that constitute a reassignment based on Rosenberg’s age (57)?

As to the claims against Welser-Möst, the Cleveland Orchestra, and other Orchestra employees, I will assume that Rosenberg’s lawyer is telling the truth when he explained to the jury in his opening statement that the Orchestra “had waged a campaign to get Rosenberg removed from the orchestra beat, that the Plain Dealer “caved into that pressure,” and that the “case about powerful and influential people in the community trying to manipulate the news.”

Which confirms that — in the words of Baltimore Sun classical music critic Tim Smith, as reported in the Cleveland Scene — the Plain Dealer and the Cleveland Orchestra look “ridiculous” in their ham-handed efforts to influence the public’s opinion of the Orchestra:

“It looks ridiculous,” [Smith] says of the fracas. “You wouldn’t dream of doing this to your political commentator because he attacks the mayor week in and week out, or your local sports team. Who hasn’t been in a town with a sports columnist who is constantly knocking the hell out of the coach of the football team? And who then would take him off that beat?”

As Smith wrote in 2008, both the Plain Dealer and the Orchestra have had their credibility irrevocably damaged:

In the end, it may not matter too much who led the charge, who exerted influence, who gave in to pressure or doubt. The damage has been done. Zach Lewis, who has been told he will now cover the Cleveland Orchestra for the paper, is a good guy and good writer placed in an impossible situation. If he says positive things about Welser-Most, some people will think he’s just doing that to keep his job. If he says negative things, some people will think he’s under Don’s influence and will have to be replaced, too. As I said before, the Cleveland Orchestra and the Plain Dealer are worse off, not better off, as a result of this controversy. Music and journalism have taken a painful hit.

But if you could sue someone for doing something monumentally stupid that damaged their credibility and that you didn’t like, Northeast Ohio would have filed a class action lawsuit last week against LeBron James. As I stated above, I don’t see what legal duty the Plain Dealer violated in reassigning Rosenberg. And as long as what the Orchestra’s employees said about Rosenberg was truthful or a matter of opinion, there is no legal claim against them either. As the Orchestra’s lawyer put it to the jury:

“Don Rosenberg had a mighty bully pulpit to print whatever he thought of Franz Welser-Most and [the defendants] were only using the pulpit available to them” by contacting newspaper editors to complain about Rosenberg’s coverage of the orchestra.

Finally, even if Rosenberg can establish that employees of the Orchestra lied about him, he needs to prove that he has suffered damages — that is, he must establish that he has suffered some loss that can be compensated with money. He hasn’t lost any income as a result of his reassignment by the Plain Dealer. And, indeed, his prominence as a music critic — should he wish to engage in music criticism in places other than the Plain Dealer — only seems to have been increased.

Court decides federal government cannot refuse to give legal effect to state laws that recognize same sex marriage.

A federal court in Massachusetts today struck down the Defense of Marriage Act (“DOMA”), which states that for purposes of determining rights to federal benefits “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or wife. A copy of the decision is here (pdf). In passing DOMA, Congress had, in the words of the law’s legislative history, “sought a means to both ‘preserve[] each State’s ability to decide’ what should constitute a marriage under its own laws and to ‘lay[] down clear rules’ regarding what constitutes a marriage for purposes of federal law.” (Opinion at 3)

In other words, Congress acknowledged and no one disputes that states have the exclusive right to define what marriage is. Nevertheless, in response in particular to the decision of the Hawaii Supreme Court to recognize the right of same sex couples to marry one another in Baehr v. Lewin (a/k/a Baehr v. Miike), Congress expressed concern that the redefinition of marriage at the state level “‘to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits.’”

That indeed is the case. As the court stated, [t]here can be no dispute that the subject of domestic relations is the exclusive province of the states.” And so if you are entitled to a benefit under federal law as a “spouse,” whether or not you are a “spouse” is determined by the state in which you were married. Again, as the court stated, “there is no federal law of domestic relations.” (Opinion at 29) Thus, even though individual states have often differed in what they have defined as marriage, federal rights based on marriage have always depended on those individual state determinations:

Indeed, pursuant to the sovereign power over family law granted to the states by virtue of the federalist system, as well as the states’ well-established right to “experiment[] and exercis[e] their own judgment in an area to which States lay claim by right of history and expertise,” individual states have changed their marital eligibility requirements in myriad ways over time. And yet the federal government has fully embraced these variations and inconsistencies in state marriage laws by recognizing as valid for federal purposes any heterosexual marriage which has been declared valid pursuant to state law. (Opinion at 29)

In fact, before the Supreme Court in 1967 ruled that state laws outlawing interracial marriage were unconstitutional (in Loving v. Virginia), federal law deferred to state law on marriage and refused to recognize interracial marriages in those states which made them illegal. “Importantly, the passage of DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage–or any other core concept of domestic relations, for that matter.” (Opinion at 30)

It will be interesting to see if those who usually tout states’ rights come down hard on this decision, which merely binds the federal government to the deference to state law on matters it has always deferred to the states on.

Was Kagan forthcoming? So far it seems to depend on whether you thought she’d be.

I suggested about 7 weeks ago that Elena Kagan might be more forthcoming in her confirmation hearings about the substance of her legal views than has any nominee since Robert Bork’s nomination was rejected over 20 years ago. Now that the hearings are complete, my colleague on the Case Western Reserve Law School faculty, Jon Adler, voiced what seems to be the common wisdom iyesterday — Kagan continued in the recent tradition and avoided answering direct questions:

Wednesday’s hearings offered more of the kabuki theater we have come to expect from Supreme Court confirmation hearings. Senate Republicans tried to elicit evidence she would be a doctrinaire liberal on the court, with little success. Peppered with questions on topics from Habeas Corpus and the Commerce Clause to gun rights and gay marriage, Kagan refused to show her hand.

Jeffrey Rosen, however, has what seems to be a very different view, that “[f]ar from turning into a ‘vapid and hollow charade,’ to use Elena Kagan’s now-famous condemnation of other Supreme Court confirmation hearings, her own have been impressively substantive.

Kagan, of course, did refuse to answer any questions regarding how she would rule in pending or future cases. As a lawyer, I would expect nothing else. No responsible legal mind would prejudge a case before allowing the lawyers for the parties to the case present their evidence and arguments to the court. Only law professors think legal questions can and ought to be decided based on the possible circumstances and arguments they can imagine without input from people whose lives will genuinely be affected by the decisions.

As Rosen points out, Kagan was asked about and did answer that she considered certain matters that existing precedent ignores important, no small thing. Thus, for example, Kagan was asked whether the decision in New York Times v. Sullivan, which insulates from liability false statements about public figures unless they are made with knowledge of their falsity, is sufficient in an age of social media and blogging. Kagan first graciously stated that “I think people should be able to write anything they want about me, and I don’t think that I should be able to sue them for libel” (again, no small thing), but then acknowledged that the legal system does have to recognize the reality of harm posed by current media:

Even as we understand the absolute necessity for a kind of New York Times versus Sullivan sort of rule and for protection of speakers from libel suits, defamation suits, even as we understand that, we should also appreciate that people who did nothing to ask for trouble, who didn’t put themselves into the public sphere can be greatly harmed when something goes around the Internet and everybody believes something false about a person. That’s a real harm. And the legal system should not pretend that it’s not.

As a lawyer I respect the nuances she displayed on issues pertaining to gay rights, though it’s plain to me too that people with fixed views on these matters would like her to share their fixed views.

After I have had a bit of time to review the transcript of the hearings, I hope to include my own evaluation of her performance.

Viacom’s schizophrenia over YouTube: the industry cries “serial killer!”

Does YouTube threaten the entertainment industry? On the one hand, Viacom and others will scream that it threatens the very livelihood of those who produce our entertainment. On the other, Viacom and others use it effectively to promote their products. And would you really prefer a regime that required YouTube to approve the legitimacy of every video uploaded to it? Frankly, it simply wouldn’t exist if that were required. To me it makes sense that if a copyright holder believes his copyright is being infringed by an online video, he can have it removed upon request. And if the person who uploaded the video believes the request is mistaken, he can ask Google to review it and make its determination at that point whether it will allow it to remain.

Moreover, history teaches that you should view with extreme skepticism the cries of alarm from the entertainment industry. In doing so, you likely would be doing them a favor.

As I wrote the other day in connection with the decision dismissing Viacom’s lawsuit against Google alleging copyright infringement for the posting on YouTube of videos infringing Viacom’s copyrights, As I wrote above, the existing regime makes sense to me and, as I wrote in that recent post,  ”[t]he decision is a straightforward application of the DMCA’s “safe harbor” provision, which insulates service providers from liability for activities by their users that infringe copyrights.” Viacom, of course, disagrees, stating in its press release:

We believe that this ruling by the lower court is fundamentally flawed and contrary to the language of the Digital Millennium Copyright Act, the intent of Congress, and the views of the Supreme Court as expressed in its most recent decisions. We intend to seek to have these issues before the U.S. Court of Appeals for the Second Circuit as soon as possible.

And those who represent the interests of large corporate copyright holders such as Viacom, like the Washington Legal Foundation (whose mission is to “champion free market principles [and] limited and accountable government”) argue that the decision allows Google “to exploit the statute’s safe harbors by designing an entire business model based on improperly profiting from copyrighted content.” Ronald Cass writes in Forbes that the decision is “broad enough to sink the protection copyright holders had enjoyed under the law.” And the Directors Guild of America claims its members’ very livelihoods are at stake:

We fear that the precedent established in this ruling, if not overturned by the appeals court, could result in a drastic rising tide of Internet theft that could decimate our members’ livelihoods, their pension and health plans, and their ability to continue creating the content that is beloved by people all over the world.

Reading these dire warnings you might not realize that as the judge stated in his decision Google took down the offending videos the day after Viacom delivered a mass takedown notice identifying the ones it claimed a copyright in. Nor would you realize that Viacom recognized the value of YouTube to its business by employing people to post its videos to YouTube to promote its productions while at the same time other Viacom employees were adding those same videos to the list for the takedown notice:

For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately “roughed up” the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt “very strongly” that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

Viacom’s efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

Fear that directors will have their livelihoods decimated and that the decision sinks copyright protection is of course, nothing new for an entertainment industry that can profit enormously from new technologies they demonize, so Viacom’s schizophrenia is, perhaps, progress over Hollywood’s reaction to the VCR, which was 100% self-destructive. In 1982, Jack Valenti, in sworn testimony before Congress , stated “that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.” But, as Digital America explains, Valenti was not merely crying wolf — he was describing the greatest benefit to the movie industry in the last 40 years as a serial killer:

As the VCR became more important to the consuming public, the Hollywood establishment that fought it bowed to its inevitable benefits. In January 1984, the U.S. Supreme Court concluded 5-4 that VCRs were legal products and that home taping of copyrighted works fell under the “fair use” exception to copyright. While Congress passed the Audio Home Recording Act of 1992 (AHRA), legislative attempts to codify the Betamax decision and fair video recording rights are still pending before Congress. CEA (at that time known as the Consumer Electronics Group of the Electronic Industries Association), in cooperation with the Home Recording Rights Coalition, protected the legality of home recording and promoted the acceptance of the new technology.

Additionally Hollywood studios established home video divisions to reap the profits from a technology it once considered a threat. Blay’s idea sparked a retail revolution as hundreds of mom-and-pop video rental and sales stores popped up in every community in America. In 1987, video rental income reached $5.25 billion for the year, surpassing movie theater ticket sales for the first time. Today, movie studios regularly make more money on a film from home video sales and rentals than from the theatrical box office.

Judge Dismisses Viacom’s Lawsuit against Google for Infringing Videos Uploaded to YouTube.

Judge Louis L. Stanton of the United States District Court for the Southern District of New York has granted Google’s motion for summary judgment (opinion and order embedded below) and dismissed Viacom’s lawsuit that alleged that that Google was liable under the Digital Millennium Copyright Act (DMCA) for videos uploaded to YouTube that infringed Viacom’s copyrights because Google had “actual knowledge” and was “aware of facts and circumstances from which infringing activity [was] apparent” but failed to “act[] expeditiously to stop it, “received a financial benefit directly attirubutable to the infringing activity” and “had the right and ability to control such activity” and did not engage in these infringements solely by providing “storage at the direction of the user” or any other Internet function specificied in the DMCA.”

The decision is a straightforward application of the DMCA’s “safe harbor” provision, which insulates service providers from liability for activities by their users that infringe copyrights. The judge acknowledged that Viacom was right about its central contention: Google was “not only aware of, but welcomed, copyright-infringing material being placed on their website.” (Opinion and Order at 6) Nonetheless, he also noted that Google designates an agent who, when he receives a takedown notice, “swiftly” removes infringing videos. (Id.)

The judge concluded that for Google to be liable under the DMCA Viacom would have to show more than that Google knew that infringing activity “in general” was occurring on YouTube because the DMCA does not require that degree of responsibility on service providers for the actions of its users:

To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.

By insulating service providers from liability for infringements by their users, the Judge Stanton concluded, the DMCA makes perfect sense because it would be far too burdensome for the service provider to make individual judgments on each of its user’s activities to determine whether those activities were infringing:

The infringing works . . . may be a small fraction of millions of works posted [on the service provider’s] platform, [and the service provider] cannot by inspection whether the use has been licensed by the owner, or whether its posting is a “fair use” of the material, or even whether its copyright owner or licensee objects to its posting. The DMCA is explicit: it shall not be construed to condition “safe harbor” protection on a “service provider monitoring its service or affirmatively seeking facts indicating infringing activity . . . .”  (citations omitted)

Moreover, the fact Google took down over 100,000 videos within one business day in response to a single, mass take-down notice sent by Viacom was proof to Judge Stanton that the existing regime works perfectly well:

Indeed, the present case shows that the DMCA notification regime works efficiently: when Viacom over a period ov months accumulated some 100,000 videos and then sent one mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them.

Viacom v YouTube Summary Judgment

Our courts and legislatures are bought and paid for — the laws they’ve made with respect to oil spills prove it.

In March, I emphasized — not for the first time — the insanity of considering corporate and other business entities as rational actors of the sort many economists consider people to be. The problem is that corporate decisions are made by individuals and are therefore driven to benefit those individuals, not the corporations (and their shareholders).”

One reason corporations focus on short-term profits is that the individuals making the decisions for a company will often take the cash made in the short term out of the company (by paying special dividends, for example) and then sell there stock, evading the long-term loss. Even if they hold onto their stock, they may have taken so much cash out of the company before the stock crashes in value that they’ve profited mightily from their holdings regardless of the company’s failures.

But still another reason is the idiocy of the regulation that is in place, regulation that instead of imposing responsibility on the companies for problems they cause limits that responsibility.

10 days ago David Leonhardt wrote about the  perversity of the federal limitations on corporate liability for oil spills and how they made BP’s oil spill, in retrospect, no great surprise:

In a little-noticed provision in a 1990 law passed after the Exxon Valdez spill, Congress capped a spiller’s liability over and above cleanup costs at $75 million for a rig spill. Even if the economic damages — to tourism, fishing and the like — stretch into the billions, the responsible party is on the hook for only $75 million. (In this instance, BP has agreed to waive the cap for claims it deems legitimate.) Michael Greenstone, an M.I.T. economist who runs the Hamilton Project in Washington, says the law fundamentally distorts a company’s decision making. Without the cap, executives would have to weigh the possible revenue from a well against the cost of drilling there and the risk of damage. With the cap, they can largely ignore the potential damage beyond cleanup costs. So they end up drilling wells even in places where the damage can be horrific, like close to a shoreline. To put it another way, human frailty helped BP’s executives underestimate the chance of a low-probability, high-cost event. Federal law helped them underestimate the costs.

We shouldn’t be surprised, then, at BP’s pathetic safety record and the retrospective inevitability of the Gulf spill:

Years before the Deepwater Horizon rig blew, BP was developing a reputation as an oil company that took safety risks to save money. An explosion at a Texas refinery killed 15 workers in 2005, and federal regulators and a panel led by James A. Baker III, the former secretary of state, said that cost cutting was partly to blame. The next year, a corroded pipeline in Alaska poured oil into Prudhoe Bay. None other than Joe Barton, a Republican congressman from Texas and a global-warming skeptic, upbraided BP managers for their “seeming indifference to safety and environmental issues.”

BP was only acting rationally!

Unsurprisingly, the Supreme Court has teamed with Congress in being an accessory to the corporate rape of the country. Even if compensatory damages are capped, conceivably courts can impose punitive damages in civil lawsuits to deter particularly egregious conduct. And, indeed, courts reacted precisely that way to the Exxon Valdez oil spill — that is, until the Supreme Court stepped in. In 1994, a jury imposed $5 billion in punitive damages on ExxonMobil for the Exxon Valdez  oil spill. 12 years later an appellate court reduced that amount to $2.5 billion, half the original amount.

2 years later, in a 5-3 vote (Sam Alito recused himself from the case because he owned Exxon stock), the Supreme Court reduced the amount to $507.5 million, about 10% of the jury’s award. The Court ruled that punitive damages (intended to punish bad behavior, not to compensate a plaintiff for his losses caused by that behavior) cannot be greater than compensatory damages (which compensate victims for their economic losses). As reported at the time, the reduced amount represented “about 12 hours of revenue for [Exxon], which reported record profits of $40.6 billion in February.” Justice Souter, writing for the Court, explained that “a penalty should be reasonably predictable in its severity, so that even Justice Holmes’s ‘bad man’ can look ahead with some ability to know what the stakes are in choosing one course of action or another. See The Path of the Law, 10 Harv. L. Rev. 457, 459 (1897). Exxon Shipping Co. v. Baker (U.S. 2008)(hyperlink added).

Of course, one might argue pretty cogently that neither the Exxon Valdez spill nor the BP Gulf spill were conceivable in the minds of the people who made the decisions that resulted in disasters and that it is precisely that failure to conceive of, much less consider, those consequences that is what the courts should retain the power to punish.

Law struggling with changes in material reality: corporate confidentiality this time

I have emphasized again and again the difficulties law faces when there are profound changes in the material reality of our lives, including, for example, demand for new sources of energy. Law is not a set of rules good for all time in all places and all things. It is, rather, an evolving system that tries to do justice in the particular situations it addresses.

The new technologies for copying and disseminating information have of course thrown our legal system into confusion over copyright. Those technologies also are having a profound impact over notions of confidentiality and privacy. Wikileaks is of course in the news in connection with its disclosures of U.S. military secrets, including its release of an Apache helicopter attack in Iraq.

The efforts of a British court to deal with Wikileaks illustrate the difficulties courts often have in applying legal rules that grow out of an era already long past to the new world. Wikileaks’ released of documents from Barclays Bank detailing Barclays’ efforts to use offshore affiliates to evade taxes in Great Britain. A judge ordered the Guardian newspaper, which had published the documents, to take the material down because, he reasoned, the bank had a right to confidentiality.” He also ordered the Guardian not to publish links or other directions for finding the documents on the internet even though they were widely available on sites not based in Great Britain.

As Alan Rusbridger, the editor of the Guardian, explains, the disconnect between the court’s view of confidentiality and the realities of the internet expose a certain degree of absurdity:

The Internet is throwing sharp relief to the illogical nature of our system. Technology is way ahead of the law, and the law is limping along trying to make sense of it.

Professor James Edelman of Oxford believes the court order in connection with the Barclays documents might be the last example of this particular type of confusion, particularly because Barclays may realize that its legal efforts, even if “successful” in getting an order barring publication in the U.K., only serve to publicize the existence of the documents the bank is trying to keep hidden:

“What is significant about the ruling,” he said, “is that it will open people’s eyes that even if you can get an injunction to preserve information that is able to be obtained over the Internet, I suspect that the injunction won’t last.” The publicity over the injunction creates more interest in the material, leading other sites to publish it. The Guardian will be able to return to court, he said, and argue the injunction no longer serves any purpose.

Mr. Rusbridger said that the newspaper still had not decided whether to do that. The cost for being wrong, he said, could be as much $300,000 in legal fees.

Seeming to prove Professor Edelman’s larger point, however, when Wikileaks became overloaded by the traffic about a week ago, another site, techcrunch.org, published the seven memos under the heading “How Barclays Ensured That Everyone Would See Their Confidential Tax Documents.”

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.

I’m one of the Top 100 Twitterers in the Legal World!

Hey, I’m one of the Top 100 Twitterers in the Legal World! (I’m @pbfriedman.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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