If you think lawyers lifting other lawyers’ language is proof lawyering is easy, you know nothing about true creativity.

There’s always the danger that when someone suggests that genuine creativity can and is built from earlier creative works that someone else will believe the implication is that creativity is no big deal. If I feel I can cut-and-paste from other lawyers’ works then lawyering must be nothing but a cut-and-paste job, right?

It’s not as if I’ve never dealt with these matters for real, as if I’m dealing with it from an academic perspective “unsullied” by the realities of practice. A client who retained me to draft a contract for him once said to me, after we’d spent a considerable amount of time discussing the details of his deal, “It’s all boilerplate, right?”

I responded, “I don’t do boilerplate. Every deal is different, and if you know the lawyer who’s done exactly your deal before and you’re confident the contract he wrote then is just fine for you, go hire him.”

Which isn’t to say I didn’t review a lot of other contracts or that I didn’t lift language from those other contracts. I did. I took a line or two from this one, a paragraph from that, another line from another, etc. And I put those things all together with my notes, shuffled things around, revised a lot of the language I’d lifted from other sources, wrote far more language necessary to express what was necessary to express this particular deal, worked and reworked, checked and rechecked, revised and revised, and at the end I had a document that set forth the client’s deal in all its precision, breadth, and ambiguity. It wasn’t boilerplate at all. But were there lines and even, perhaps, a paragraph lifted from other contracts? Of course.

I obsess about these matters in part because there is terrible confusion about what genuine creativity (in art, music, literature, the practice of law or a myriad of other endeavors) is. The confusion arises because, I believe, there is so much money at stake in the legal and rhetorical wars over copyright. So there are a lot of people who will look at Shepard Fairey’s Obama Hope poster and the photo Fairey used as the poster image’s source, and write things like the following:

Any director, writer or actor interested in making long-term money in the entertainment industry should be calling Fairey what he is: A plagiarist.

While I recognize the attitudes underlying these views — no one else is entitled to make a buck from my work! — the blindness to the creativity involved, even acknowledging the appropriation, is astounding. I’ve gone on at length about my view on this, but no one can deny that Fairey’s poster had a profound resonance and impact during the 2008 presidential campaign, and no one can suggest that the poster would have had any similar impact if the original photo had appeared on the poster rather than Fairey’s reworking. So how can anyone possibly suggest the level of creativity in the poster wasn’t profound?

The KLF “were one of the seminal bands of the British acid house movement during the late 1980s and early 1990s.” Their relevance here is that, “despite their protestations of 1988 about not wishing to be seen as crusaders for sampling, the [KLF] continue to be associated with the cultural movement which retrospectively bundles together those literary and artistic works that make use of ‘creative plagiarism’. 1987: What the Fuck Is Going On? is considered a landmark work in the early history of sampling music in the United Kingdom.” Their #1 British hit, “Doctorin’ the Tardis” “is predominantly a mash-up of the Doctor Who theme music, Gary Glitter’s ‘Rock and Roll (Part Two)’ with sections from ‘Blockbuster!’ by Sweet and ‘Let’s Get Together Tonite’ by Steve Walsh.”

Jimmy Cauty and Bill Drummond — who were the KLF — are also very smart fellows. Among a never-ending series of creative works in a wide range of media, they wrote The Manual: How to Have a Number One the Easy Way, which I’ve heard some describe as a cynical con job but that is far more intelligent and complicated than that. On the one hand, The Manual explains

Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality. In the past, most writers of songs spent months in their lonely rooms strumming their guitars or bands in rehearsals have ground their way through endless riffs before arriving at the song that takes them to the very top. Of course, most of them would be mortally upset to be told that all they were doing was leaving it to chance before they stumbled across the tried and tested. They have to believe it is through this sojourn they arrive at the grail; the great and original song that the world will be unable to resist.

But Drummond and Cauty are not accusing successful musical artists of being “mere plagiarists.” They recognize that even if a song can be broken down into bits and pieces of other songs, there is real genius in great pop music:

So why don’t all songs sound the same? Why are some artists great, write dozens of classics that move you to tears, say it like it’s never been said before, make you laugh, dance, blow your mind, fall in love, take to the streets and riot? Well, it’s because although the chords, notes, harmonies, beats and words have all been used before their own soul shines through; their personality demands attention. This doesn’t just come via the great vocalist or virtuoso instrumentalist. The Techno sound of Detroit, the most totally linear programmed music ever, lacking any human musicianship in its execution reeks of sweat, sex and desire. The creators of that music just press a few buttons and out comes – a million years of pain and lust.

Lewis Hyde makes a similar point in Common as Air, the new book that was the starting point for my exploration the other day of lawyerly “plagiarism”:

“Intellectual property” is the phrase now used to denote ownership of art and ideas, but what exactly does it mean? Does it make sense, to begin with, to say that “intellect” is the source of the “properties” in question? A novel like Ulysses, the know-how for making antiviral drugs, Martin Luther King, Jr’s “Dream” speech, the poems of Rimbaud, Andy Warhol screen prints, Mississippi Delta blues, the source code for electronic voting machines: who could name the range of human powers and historical conditions that attends such creations? All that we make and do is shaped by the communities and traditions that contain us, not to mention by money, power, politics, and luck. And even should the artist or scientist think she has extracted herself from the world to stand alone in the studio, a tremendous array of faculties and mind- states may well attend her creativity.

There is intellect, of course, but also imagination, intuition, sagacity, persistence, prudence, fantasy, lust, humor, sympathy, serendipity, will, prayer, grief, courage, visual acuity, ambition, guesswork, mother wit, memory, delight, vitality, venality, kindness, generosity, fortitude, fear, awe, compassion, surrender, sincerity, humility, and the ability to integrate diametrically opposed states of mind into harmonious wholes . . . We would need quite a few new categories to fully map this territory — “dream property,” “courage property,” “grief property” — and even if we had that list, only half the problem would have been addressed.

Do you want a great lawyer? You can have one even if he cuts-and-pastes the work of other lawyers into his work. But please — don’t believe for a second that means that lawyering can be reduced to cutting-and-pasting. Lawyering requires as much creativity as any endeavor on earth — if I didn’t believe that why would I write a blog devoted to law and creativity? And creativity is infinitely more complex a matter than tracking down the bits and pieces that make up the creative work. It requires the imagination necessary to find those bits and pieces, the vision to understand how to select and fit them together to due the present job, the skill borne of years of work to write in the stuff that can’t be found anywhere else and without which those bits and pieces would be just a bunch of crude boilerplate that doesn’t fit well into any specific situation at all, the passion and energy necessary to do the work to bring all this stuff together, the courage to stick to one’s vision even as one’s adversary is insisting you’re wrong, the delight without which the strength to do all of these difficult things would be impossible to muster, the generosity of spirit that can identify a client’s problems as your own, and a million other things.

So don’t you dare suggest that taking some language that is useful for doing the job that needs to be done from another lawyer is evidence lawyering is like putting together tinker toys.

Words and Ideas as Common Property: Lewis Hyde, Stanley Fish and lawyers as “plagiarists”

In yesterday’s New York Times, Robert Darnton reviewed Lewis Hyde’s newly published Common as Air: Revolution, Art, and Ownership, describing it as “an eloquent and erudite plea for protecting our cultural patrimony from appropriation by commercial interests.” As Darnton explains, “Hyde invokes the [founding fathers] in order to warn us against a new enclosure movement, one that would fence off large sectors of the public domain — in science, the arts, literature, and the entire world of knowledge — in order to exploit monopolies.” Acknowledging that Hyde’s historical approach might seem a “dubious” way of “defending the cultural commons” and that in other hands it could amount to nothing more than picking and choosing among “a stockpile of quotable chunks of wisdom,” Darnton finds the book compelling:

[Hyde] does not merely cull the works of the founding fathers for quotations. He pitches his argument at a level where historians and political philosophers have contributed most to our understanding of intellectual history. Instead of treating the ideas of the founders as self-contained units of meaning, he explores their interconnections and shows how they shared a common conceptual frame. Not that he pretends to have uncovered anything unknown to the authorities he cites, notably the historian J. G. A. Pocock, whose studies of civic republicanism reveal how early modern philosophers drew on a current of thought about the nature of citizenship that goes back to ancient Greece and Rome. Hyde builds his argument by telling stories, and he tells them well. His book brims with vignettes, which may be familiar but complement one other in ways that produce original insights.

It is one of the genuine highlights of my professional career that Hyde draws on an article I’ve written. Hyde’s scope is wide, and he explores in depth the practices of many different “communities” — including, among others, the world of scientific research and the programmers that collectively created the World Wide Web — to show that treating knowledge and invention as a commons is both widespread and productive. One such community is the legal profession, which might seem odd in that the widely held understanding that your intellectual product is as much your property as is your house is such a legalistic conception:

Many . . . communities of practice have common holdings made durable and lively through normative rather than legal stints.

One of these may be found, oddly enough, in the legal community itself, where, as in some scientific circles, collective tasks get done and “collective beings” come to life through the agreed-upon non-ownership of creative labors. The fact is that in legal circles when judges issue opinions they often “plagiarize” from the briefs presented by contending parties. To take but one example, in 1937 Supreme Court Justice Benjamin Cardozo lifted, without attribution, verbatim sections of the Roosevelt administration’s brief in his decision upholding the Social Security system. Of course, “plagiarism” is the wrong term here, for legal writing does not come from the kind of author to whom credit is due. Legal writing is mostly collaborative, for one thing, produced by writing communities. In addition, legal opinions are public documents, belonging to no one because they belong to all of us. Nobody has ever successfully claimed copyright infringement for the unauthorized use of someone else’s legal argument. In fact, legal writers want to have their work appropriated. Peter Friedman, a lawyer whose analysis I’m drawing on here, has written: “I knew I had written the best brief I possibly could on a motion when the court’s opinion announcing its decision was directly cut-and-pasted from my brief.”

If lawyers were the kind of authors who claimed a property in their work, they would potentially deprive both the work and themselves of their public roles. As with eighteenth-century pamphleteers, or with the creators of the World Wide Web, self-erasure attends a lawyer’s entry into the public sphere, not self-assertion. The law is collective; it belongs to all citizens, and consequently we ask that its practitioners present themselves as public persons with copyduties rather than copyrights. In this context, to sample someone else’s brief is a favor, not a theft; it helps a lawyer be a lawyer. Common ownership makes that species of public life possible. (Common as Air at 248-249.)

Interestingly enough, this passage has some bearing on an exchange I had recently with the incredibly accomplished lawyer and blogger Scott Greenfield. Greenfield wrote a blog post criticizing a piece Stanley Fish wrote in the New York Times that argued that plagiarism as an offense is not a moral wrong, but, rather, the product of particular rules against the use in particular contexts of others’ words and ideas without attribution. [Fish wrote a second piece on the topic, responding to critics of the first piece, here.] The necessary corollary of Fish’s point is that in other contexts the use of others’ words and ideas without attribution is perfectly acceptable. Greenfield’s disagreement with Fish focused on Fish’s assertion that “lawyers and judges in fact do [appropriate words and ideas without attribution] all the time without the benefit or hindrance of any metaphysical rap.” Greenfield wrote, “No, Stanley, I will not turn the other cheek, no matter how much I love the platitude about reinventing the wheel.”

I tried to explain in the comments to Greenfield’s post where I thought he had missed Fish’s point (which is very much related to Hyde’s). I will try to do so more clearly here inasmuch as he and I seemed to speak past one another in that particular exchange.

In law school, plagiarism is the use of the words or ideas of others without attribution. It is a grave offense that can lead to harsh discipline and even might threaten the student’s ability to someday be certified to practice law. Strict compliance with the need to attribute words and ideas drawn from others is deemed necessary because the point of the academic process is to teach the students to put together and convey ideas clearly and to assess their capacity to do so. Thus, using words or ideas of others without attribution is tantamount to fraud — the reader of those words and the ideas they convey is misled into believing they are the product of the student’s intellectual processes alone, and the reader conducts an activity central to the academic process — grading those words — in reliance on that belief. If I were to read Scott Greenfield’s words under the mistaken belief they were the words of a student whose paper I was grading, I would give him a much better grade than he would earn if I knew he were just quoting Greenfield.

In legal practice, however, it is only the quality of the words that matter. Whether contract language originated with the lawyer who drafted the contract or a paragraph in a brief explaining a line of authority relevant to the brief’s argument was cut-and-pasted from a brief the lawyer who submitted the brief found online doesn’t matter. What matters is the effect of the words themselves. And, in fact, lawyers almost always begin drafting contracts by cannibalizing other contracts and forms. Yet they never cite to or otherwise acknowledge those sources. There is no reason for them to do so. And, as the passage from Hyde above makes clear, judges cut-and-paste from lawyers’ briefs. In fact, the entire arena of legal writing in practice is rife with unacknowledged borrowing.

And of course it’s no sin. That’s the point. Which Greenfield acknowledges without realizing it’s the point when he writes that a judge who appropriates the words from a lawyer’s brief is accepting a “gift,” not engaging in plagiarism:

As for judges taking language out of my brief, that’s not plagiarizing, but the purpose of a legal brief, to provide the court with the language to use in his decision. That’s exactly what I’ve written it for, as my “gift” to the judge to use in deciding the case. Again, entirely different from plagiarizing.

But that precisely is Fish’s point. Appropriation without attribution isn’t the moral equivalent of the theft of private property. It’s wrong in some contexts and not in others. So in some contexts it is defined as plagiarism and in others to call it “plagiarism” is to misspeak.

Greenfield’s other retort to Fish also reflects his misunderstanding of the point. Greenfield states that lawyers do provide attribution to the words and ideas for others. That’s what the whole obsession with citation is about:

[W]e do not lift language without attribution. Indeed, that’s what all those silly case names and the “358 U.S. 973″ stuff is all about. It’s the lawyers’ way of attributing, Stanley. It’s called a citation, and it’s our regime. What you do not see at the end of a court decision is the copyright and command that it not be used without permission. Use of court decisions is not merely anticipated, but required in most circumstances. That’s the peculiar way law works.

But the attribution provided by citation in legal briefs and opinions does not serve the same purpose as does attribution to a student’s sources. Lawyer’s don’t provide citations to the authorities they quote and rely on because their failure to do so would result in prosecution for a moral offense. Instead, lawyers provide citations because the citations signal the identity of sources for words, actions, and ideas that have persuasive weight because of who those sources are.

In other words, if I lifted language verbatim from a court decision without quotation marks or citation in a brief I wrote to a court I would suffer no harm. You might object that this possibility is a mere hypothetical, but you would be wrong. If an argument — and even precise words — come from a court that has no controlling weight in the court to whom I am submitting the brief and I have no reason to believe the identity of the court would lend any genuine persuasive weight to the argument, I would be remiss if I did provide the citation. The citation itself would raise a question in the mind of the judge to whom I was submitting the brief — why should I care about this court’s words, ideas, or actions? — that would distract from the persuasive effect of the argument itself.

And, indeed, as a general matter as a lawyer there is little reason to cite to law review articles unless there is reason to believe the author of the article is someone who carries genuine persuasive weight. A judge’s reaction otherwise is likely to be along the lines of this: “A law review article can pretty much assert anything that can win the approval of a student editor. Why should I assume it has any authority merely because it’s published in a law review?”

Would the article’s author have any claim against a lawyer who lifted words or ideas from his article and used them in a brief without attribution? I cannot believe so, nor am I aware of any standard or rule the lawyer would be violating.

And in contract and instrument drafting, of course, lawyers don’t even provide citation for the sources of their words.

I think it is important in understanding what Fish was writing about to understand these different functions of citation. On the one hand, there’s citation to validate the relationship between the words and ideas and the author’s identity. On the other, there’s citation to signal that particular words and ideas come from a source that must be reckoned with by the reader. They are two entirely different functions, and in legal practice the latter is the one that matters. The former does not. And so you have never seen a lawyer suffer any adverse consequences for plagiarizing.

But if any of my legal writing students are reading this, be on guard! Students must provide attribution to the words and ideas they appropriate from others.

Anonymous online writing: bad writing that wouldn’t see the light of day if the writer knew readers could match the words to the person.

Wow. I apparently touched a nerve the other day when I blogged on this post and the thread of comments following it and expressed my preference for Dan Hull’s view that anonymous blogging is cowardly.

At the risk of offending one anonymous commenter who desperately wants me to condemn Dan’s insistence on insulting him and forget what I care about — writing words that one is willing to stand behind and justify — I will try to clarify and expand upon what I wrote:

I never said one cannot write anonymously. Quite plainly I don’t ban anonymous comments on my blog. Quite plainly I’ll never be Lord of the Internet with the power to ban anonymous writers. Nor, if I were Lord of the Internet, would I ban anonymous writing. I believe in the freedom of speech, even speech that expresses views I despise. Views I think are stupid are another tolerable phenomenon.

But I do care deeply about the quality of writing. I teach law students how to write as lawyers, and the vast majority of my professional life as a law professor and a lawyer depends on the effectiveness of what I write. One thing I am convinced of and try passionately to convince my students of is that that you cannot be an effective writer if you do not have the courage to own your words. By that I mean, among other things, that you must believe in your words, believe those are the  best words you could come up with under the circumstances to express your point of  view. If you don’t do so, you’re just parroting things you haven’t truly thought through. Your failure to think them through typically means you haven’t entirely grasped what it is you’re trying to say (and what the writer of what you’re parroting meant to say). It also means your words will not convince the intelligent reader who isn’t already convinced that you’re right.

One necessary implication of my belief in the necessity of owning your words is that anonymous online writing loses a lot of its credibility by the very fact that it is anonymous.

My view does not mean that anonymous writing entirely lacks credibility.The anonymous author’s character (and an anonymous author has a character, one that makes an alert reader wonder why he isn’t willing to claim his words as his own) detracts from the reader’s valuation of that anonymous author’s writing. But a myriad of factors go into influencing a given text’s persuasive force. The author’s character is only one, albeit an important one.

The point that really seems to have hit a nerve is that it seems plain to me that choosing to write anonymously is for all relevant purposes grounded in fear. Sometimes that fear justifies the anonymity because (a) the author’s fear is of sufficient immediate and substantial harm and (b) the message is so important that even if it is compromised by anonymity it is worth getting out. Where those so offended by my views and I differ is in the amount of courage we think is appropriate. They have fears of the consequences of identifying themselves online when they write and they’re deeply offended that I don’t believe those fears justify their ways of using anonymity.

Thinking he had caught me questioning the courage of one of my colleagues (whose views, not courage, I question) one anonymous commenter pointed out that Jonathan Adler blogged anonymously on the Volokh Conspiracy as “Juan non-Volokh” prior to being granted tenure. At the time, Jonathan had a legitimate fear that the mere act of blogging would jeopardize his shot at tenure. As a general matter at that time, blogging was not only considered beneath legal scholars, but also to be an actual drain on time better devoted to “real” scholarship. (While blogging is no longer a negative in the eyes of most professors, it still is considered by most entirely irrelevant to scholarly achievement). I have absolutely no reason to believe Jonathan chose anonymity to hide the substance of the views he expressed on the Volokh Conspiracy. Those views were quite well known among his colleagues (and to the public) and in substance were entirely of a piece with the public writing he did under his own name. Nonetheless, I do believe that Jonathan’s writing under his own name has more force than his writing did under his chosen pseudonym. Nor do I have any reason to believe he would disagree.

To take one of Dan Hull’s more obvious examples of non-cowardly fear justifying anonymity, an Iranian dissident has good reasons for writing under a pseudonym. But one question his anonymous identity might raise, among others is this: is he really a dissident or is he in fact a CIA or Saudi plant? All sorts of credibility problems arise when one chooses to separate one’s writing from one’s identity.

Ken, who chooses anonymity, has written that he prefers to remain anonymous because his favorite styles are, as he describes them, “satire, sarcasm, and ridicule.” Ken also believes that “these are potent weapons in the fight over ideas.” But, unfortunately, poor Ken is too subtle for most people and he therefore fears their reactions:

People don’t like being made fun of. Moreover, some people are functionally incapable of understanding irony, sarcasm, and satire. Other people are offended easily, and particularly by pop culture, sexual references, and the various forms of juvenile self-indulgence occasionally featured here to the extent it amuses us.

I would suggest to Ken words he so proudly identifies as satire, sarcasm, and ridicule are not really the “potent weapons” he believes they are. It is well known that online writing in particular is a very poor medium for the effective use sarcasm. Effective satire that actually persuades someone previously unconvinced of the writer’s point of view is a very rare thing. Far more often, satire is just the words of someone seeking affirmation from others who share the writer’s contempt for the object of the satire. And ridicule? Ridicule amuses your toadies. To everyone else, it’s just name-calling.

But Ken is no Jonathan Swift, and I think he knows it. In fact, Ken’s “satire, sarcasm, and ridicule” are, to my mind (and to the mind of those who are convinced by me, but plainly not to Ken and his anonymous colleagues), merely the lazy expression of hostility and disagreement.

But, regardless of how we characterize the writing that Ken believes to be a “potent weapon in the war of ideas,” what he fears is the risk those “functionally incapable” of understanding his meaning would pose to him. Who are these people? Well, he once worked for big firms that would so dislike what he wrote he feared his employment would be threatened. He has clients he fears he’d lose if they knew the truth of his views on social issues. He fears needing to justify his writing to opposing lawyers or judges who might use those words against him. He fears he or his family will be stalked or threatened like other bloggers have been. And he bravely wrote critically once about a white supremacist who lived just one town over from him.

Are these fears the legitimate fears of a brilliant writer wielding potent tools in the war of ideas? You can judge for yourself. The fear of the law firms, the clients, and opposing counsel and judges seems to me more likely fears of being busted for using stupid words by people to whom one has the responsibility to express oneself intelligently. The fear of being stalked seems to me the fear of something so unlikely (even though it does happen, of course) that it’s really nothing but an empty rationalization. The fear of the white supremacist? I might grant Ken that one, but then why does all of his writing need to be anonymous?

To address the question more generally: are your political views so inconsistent with your employment that your job would be threatened if you really expressed them? Are you so desperate for a job you need to keep that one despite the fact it is inconsistent with true expression of what you believe? Are you writing online about your employer despite an employment policy that forbids you to do so? Is that a legitimate exercise of anonymity? If you’re Karen Silkwood or Daniel Ellsberg, it would be, but I have grave doubts that the people complaining to me are in that league.

And if it’s your clients’ reactions you fear, why would they not like what you write? Would they like it if they knew you were hiding your real thoughts from them? Why do you represent them if legitimate expression of what you really believe would offend them? Are you really capable of representing them zealously if you harbor secret thoughts that, if known, would cause them to retain different lawyers? Is a blog really an appropriate place for telling stories about how dumb your clients are? You enjoy doing it. You want to do it. But does being able to do that justify anonymous blogging?

I AM NOT suggesting that  fears are always illegitimate. What I am suggesting is that a free-floating fear of being stalked as a result of online writing is pretty far off the wall. And I’ve worked for big law firms and clients of all sorts. It’s not the everyday law firm or client who would fire you for thoughtful writing online. There would have to be something really atrocious about the employer. And clients care far more about courage, skill, and passion than they do about disagreements on social issues that are irrelevant to their representation, especially if those views are expressed cogently and the lawyer is willing to stand behind those views. The last thing clients want is a lawyer who’s afraid to let the world know that he believes in and will stand behind his words.

And are these fears so real that they justify anonymity on everything a blogger writes? Selective, tactical anonymity is an option, guys. And choosing to remain silent on matters that you can’t write about in ways that won’t endanger you with people who matter to you is an option too. That of course, is a whole other topic: a good lawyer takes a lot of really interesting stuff to his grave with him.

And, honestly, I don’t see substance on Popehat (the site I originally linked to and from which the hostile commenters came) that would usually be the sort of thing that would threaten the livelihood of its authors or commenters. They’re a bunch of guys who might like to romanticize the subversiveness of what they write, but, really, they’re not exactly a threat to anyone or anything.

Nor am I.

Then again, while the content at Popehat is pretty run of the mill, the words themselves do not really do that substance a lot of justice. And that indeed is a major part of the problem. As Charles wrote, anonymity allows you to write that a cop was a “fascist” without people who know you and would be offended by those words know that you wrote them. But merely writing that a cop is a “fascist” is just nasty name-calling, not credible writing. And Patrick, in the very first comment responding to my blog post – writing anonymously, of course — explained that he’s never heard about me but that if he really cared he could “write a blogpost mocking [me], that would stick to the front page of a Google search for [my] name forever.”

A put down and a threat as an opening move? That’s a perfect example of why I called anonymous writing online cowardly. If one is going to insult and threaten, one ought to have the courage to let one’s employers, clients, loved ones, and targets know that being a bully is what one is in the business of doing.

Or one could claim to use insults rhetorically, to highlight a point, but that’s a dangerous game, and it takes a special person to get away with it, and Dan Hull happens to be a special person.

But the most important thing about Dan Hull for purposes of this discussion (though quite plainly Patrick and his Popehat People want to make anyone who happens upon this post or the last one on this point think otherwise) is that Dan Hull wrote those insults under his own name! He’s willing to own and justify those insults. And doing so has benefited him immensely. Clients love lawyers who make the work their own. And it sure doesn’t seem that the Popehat guys are big believers in political correctness, so I can’t believe they were genuinely hurt by his words except to the extent the substance behind his insults hit home.

My point is that if you don’t own your writing you cannot truly be persuasive. That’s why I emphasized that my students, as lawyers in training, must learn to own their words, to be ready to justify the choices they made in writing the words they wrote.

And Charles happens to be right about one thing — outside the law (and too much within it, truth be told) the courage to own one’s words is sorely lacking. I think that’s a real shame and a major loss for the quality of any discourse, be it about politics, literature, science, religion, etc. Charles, I guess, expects less of people than I do. I also think that people would be surprised how much they’d benefit from saying what they mean in ways they’d be proud to claim as their own to anyone.

Finally, I am making no demands. I am stating my point of view. Yes, I am an Associate Professor of Legal Writing, but that’s just a title. And I hardly use it to put on airs. Anyone who knows anything of the status wars within academia or has read much into my archives knows I write quite openly, under my own name, about (1) the fact my title is reflective of a remarkably low status and an absence of job security and (2) my opinion that (contra Patrick) law professors are NOT an elevated class.

Am I a nobody? Well, Mike (whoever he might be) certainly things so. One thing I do know — anyone with access to an internet connection has about as good an opportunity to determine that for themselves as they would for anyone who writes openly under his own name.

And they can take that information and factor it into their judgment whether and the extent to which they agree with me.

Here’s my suggestion to everyone, including the Popehat guys: try writing under your own names. You might find your words and views become far more compelling not only to your readers but also, far more importantly, to yourselves. But be careful: being thoughtful and precise — writing things that you’re willing to justify to those who challenge them — might make you rethink some of the stuff you hold to so passionately.

Or you can ignore me entirely. That’s entirely your prerogative. You can even, if you wish, go on thinking of me as a narcissistic nobody who doesn’t matter, and I’ll go on thinking of of most anonymous bloggers as a bunch of cowards who write to please themselves and don’t persuade anyone who hasn’t already bought into their point of view.

And when it gets down to it, tthe vast majority of anonymous online writing is simply bad writing that wouldn’t see the light of day if the writer knew everyone he knows could match the words to the person.

Does Westlaw infringe a lawyer’s copyright in his legal document? This lawsuit won’t tell us.

The Lawyer’s Weekly reports that lawyer Lorne Waldman has filed a class action in Canada alleging that Westlaw infringes the copyrights held in the documents lawyers file in court and that Westlaw publishes through its online, for pay research service:

The Toronto lawyer contends that the defendants’ Westlaw Litigator service is infringing his copyright, and that of hundreds, if not thousands, of other lawyers by reproducing (in PDF, Microsoft Word and other downloadable formats), and making available on-line for a fee,  more than 50,000 pleadings, court motions and facta the defendants recently copied from civil court files across Canada.

The case raises interesting copyright questions, but I don’t think the court will ever decide those questions.

A class action is a lawsuit brought on behalf of a group of people who have identical legal claims against a defendant arising out of identical facts. Rules of court procedure allow cases to be aggregated promotes efficiency by, in the words of Wikipedia, “aggregat[ing] a large number of individualized claims into one representational lawsuit.” There is a strong incentive too for plaintiffs’ lawyers to  bring class actions — the lawyers for the plaintiff who represents the class by running the lawsuit (typically, though not necessarily, the plaintiff who brings the lawsuit) earn fees based on a percentage of the award given to the entire class. Allowing this bonanza is a better idea than it sounds in many cases — without the promise of the large payday at the end of the case, no one would sue a large corporation like Westlaw individually because the cost would be so great for a minuscule recovery. Thus, the class action device protects against corporate activity that would cheat individual consumers out of small amounts.

Before a case that has been filed as a class action, like Mr. Waldman’s, can proceed, however, the court must determine whether it should proceed as a class action. If the court determines the case should not be a class action, it will deny “certification” of a class of plaintiffs and the case, should it proceed, will have to proceed as an individual lawsuit. That, I contend, is what will likely happen to Mr. Waldman’s, and I’m not sure it’s worth his while to litigate against a behemoth like the owners of Westlaw for the relatively small recovery he’d win even should he prevail.

Why do i think the court likely will not find Waldman’s case suitable for class action treatment? Because determining whether a given document is even entitled to copyright protection in the first place requires close scrutiny of the individual document. A huge number (arguably the vast majority) of legal documents are pastiches of other documents; many are purely formulaic. The less original a document is, the less likely it will be deemed worthy of copyright protection.

In short, determining whether Westlaw infringes the copyright on a specific legal document requires inquiry into the nature of that specific document. Examination of every document created by lawyers and published by Westlaw is precisely the kind of individualized, exhaustive procedure the class action is designed to make unnecessary. If that individualized inquiry is necessary, the case will not be certified as a class action.

Accordingly, the only way Mr. Waldman is likely to prevail on his claims is if he’s willing to go it alone and establish both that his documents are entitled to copyright protection and that Westlaw’s activities are an infringement of those copyrights.

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).

PowerPoint might make you dumb, but understanding why can help keep you from being dumb even when you don’t use PowerPoint.

Edward Tufte is the world’s premier expert on the graphic presentation of information.  In the wider world he’s probably best known for his article, PowerPoint Does Rocket Science–and Better Techniques for Technical Reports, which (1) explained how, in connection with the Columbia space shuttle disaster, a PowerPoint presentation misled NASA decision makers regarding the risks to the shuttle posed by the impact of a piece of foam insulation that broke off of the shuttle’s fuel tank at launch, struck the shuttle’s left wing, and penetrated that wing’s thermal insulation, and (2) made a strong case that it is virtually impossible to convey any complex information using a PowerPoint presentation.

In a 2003 article entitled “PowerPoint Makes You Dumb,”  Clive Thompson, summarizing Tufte’s article, wrote: “When NASA engineers assessed possible wing damage during the mission, they presented the findings in a confusing PowerPoint slide — so crammed with nested bullet points and irregular short forms that it was nearly impossible to untangle. ‘It is easy to understand how a senior manager might read this PowerPoint slide and not realize that it addresses a life-threatening situation,’ the [Columbia Accident Investigation Board] sternly noted.”

Further summarizing Tufte’s article (which is really worth reading in its entirety), Thompson wrote: “[The low resolution of a PowerPoint slide means that it usually contains only about 40 words, or barely eight seconds of reading. PowerPoint also encourages users to rely on bulleted lists, a 'faux analytical'' technique, . . . that dodges the speaker's responsibility to tie his information together. And perhaps worst of all is how PowerPoint renders charts. Charts in newspapers like The Wall Street Journal contain up to 120 elements on average, allowing readers to compare large groupings of data. But, as Tufte found, PowerPoint users typically produce charts with only 12 elements. Ultimately, Tufte concluded, PowerPoint is infused with 'an attitude of commercialism that turns everything into a sales pitch.'''

Think of the difference between a low resolution photo and a high resolution photo of the same scene -- the viewer of the low resolution photo remains ignorant even of the possible presence of information present in the high resolution photo, much less the precise nature of that information.

Tufte self-publishes his books, not because he wouldn't be able to attract a commercial publisher, but, rather, because by self-publishing he can control entirely the manner in which he presents his material. Since his entire mission is to explain how to effectively present graphic information, that control is crucial to his work.

What does the effective presentation of graphic information have to do with lawyering, which primarily relies on the use of verbal information? Plenty. The principles applicable to the effective presentation of visual information are the same principles applicable to the effective presentation of verbal information. Important information must be highlighted, the conclusions must be supported with detailed, "high resolution," step by step explanations and the telling use of narrative, and anything extraneous to the points being made has to be cut out. You must also be acutely aware of your audience and the precise purposes you are trying to achieve. Moreover, as Ruth Anne Robbins has so effectively demonstrated in her article, "Painting With Print: Incorporating concepts of typographic and layout design into the text of legal writing documents," the visual appearance of even our written work is crucial to its effectiveness. Finally, of course, our culture (including our legal culture) is one that increasingly relies on the visual presentation of information. There is no denying, however, that a well written brief, an effective oral argument, or a successful classroom discussion is like a high resolution photo, while a PowerPoint presentation of of the same information is like a low resolution photo of the same subject.

In short, Tufte is exactly right in PowerPoint does Rocket Science when he concludes: "Serious problems require a serious tool: written reports."

But again, merely using words instead of PowerPoint slides isn't the answer. The words need to be chosen and arranged effectively. My students often make the same mistake the NASA engineers made in their PowerPoint presentation, which did in fact contain statements meant to convey the substantial risk that resulted in the Columbia's disintegration upon its reentry into the earth's atmosphere. The problem was that the crucial information was buried in a place and amidst so much other, misleading information that it was impossible for the audience to notice it.

It reminds me of my students when, in response to feedback they don't like, come to me with their work and argue that they really did include in their writing the important points I've said they've neglected. They even can point me to the words that I can see they really did mean to make those points. But those points are either expressed in language that is too obscure or are put in places in which they do not fit into an effective overall analysis. It's not just student's, of course. All of us have those moments when we believe we have expressed our opinion on a subject effectively, but if that if that opinion is unconnected to the evidence, authority, and reasoning that supports it, if it is buried in words that don't support that opinion, or if in any other way its truth is obscured, it might as well not even be there.

Addendum: here's one example of stupid verbal argument that bases its conclusion on the information it presents but is too "low resolution" to make its conclusion convincing. The Washington Examiner argues that "[g]overnment workers, especially at the federal level, make salaries that are scandalously higher than those paid to private sector workers.” I have to admit I was startled when I saw the editorial’s title: “Want to get rich? Work for feds.” Sorry, but none of the rich people I know of outside of Congress (which doesn’t make you rich, but, due to the cost of running for office, requires you to be rich) are government workers.

So what information does the Examiner base its conclusion on? “As of 2008, the average federal salary was $119,982, compared with $59,909 for the average private sector employee. In other words, the average federal bureaucrat makes twice as much as the average working taxpayer.” The Examiner even has a cool little graph to make the same point visually!

What’s the problem with the argument? It takes no account of the differences in education, training, and ability required to do all those federal jobs and the education, training, and ability required to do the jobs done by “the average private sector employee.” How many government jobs are there that compare to the legion of private sector jobs that pay minimum wage to stock shelves in superstores, flip hamburgers in fast food restaurants, or the like?

I know plenty of government employed lawyers. They really do make more, even much more, than “the average private sector employee.” But they make less, much less, than private sector lawyers whose education, training, and ability are no better than theirs. And their education, training, and ability do happen to be considerably more than those of “the average private sector employee.”  So why do my friends who work for the government do what they do? Because they believe in and love what they’re doing. Some are prosecutors. Some are public defenders. Some work for government regulatory agencies. And they’re great at what they do. They definitely don’t do it for the money.

Does anyone believe that going to work for the government is the way to get rich? God, stupidity is rampant.

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.

What is a Judicial Author?

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

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

Credit Default Swaps and Mortgage Backed Securities: a Primer.

I’ve previously noticed Mark Labaton’s writing. Labaton is a lawyer in LA, and he writes with the kind of clarity and precision that is crucial to effective lawyering. In the most recent issue of LA Lawyer (pdf), he applies those writing skills — in the article entitled “Swap Meet” — to explaining “derivatives,” those financial instruments central to our current economic disaster. I’ve tried to do a similar thing here a few times (here, for example), but Labaton’s account is much more comprehensive. It’s an important piece. I can’t say enough to my students that they have to reject any idea that the stuff they have to face is too complicated for them to understand. We were told again and again that credit default swaps were too complicated to understand (see below, from a CNBC Telecast in November 2006). That’s hogwash. Accepting the myth our financial markets were dealing with risks too complicated for anyone to understand (even the most active participants in the markets!) put us in this mess an is keeping us from getting out of it as quickly or effectively as we might. Labaton not only understands this point, he also provides a very useful explanation for the rest of us.

Michael Jackson was a remix artist! I’m shocked, shocked.

Hat tip to Known in the Marts

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

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

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

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

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

The lesson here is to beware the judicial compliment.

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

Chief Justice John Roberts on legal writing

Bryan Garner is the most commercially successful of legal writing teachers. On his company’s web sites, he has numerous short videos with judges from around the country as well as onger interviews with the Supreme Court Justices. Here is his interview with Chief Justice John Roberts on, among other things, the centrality of writing in legal practice:

You hang yourself with your own words.

One thing I learned well as a lawyer is that you could almost always hang an adversary with his own words.  When deposing the opposing party or a witness for the opposing party, my strategy was always to get the person to talk as freely and voluably as possible.  I’d ask open ended questions, nod agreeably, follow up with words like “Really?” to prompt even more loggorhea, and, invariably, when the transcript came back I’d find one piece of testimony after another that was damaging to my adversary’s case.  Conversely, when I prepared witnesses to testify in response to the questions of adversarial lawyers, the advice, pounded in with a hammer, was to answer the question and SHUT UP.  If a yes or a no answered the question, just say yes or no and SHUT UP.

Here’s an amusing example (pdf): in a prosecutor’s opposition to a defense attorney’s request for a delay in the defendant’s trial, the prosecutor explains that the defense attorney “is a partner in a large law firm (over 325 attorneys) and presumably has daily access to a horde of eager, smart, hard working associates to assist in this case.”  That’s not all that bad an argument about why there should be no delay in the trial, but it doesn’t have all that much bite.   But her footnote points out that the defense attorney “touts himself as a ‘Super Lawyer’ on his website.”  Ouch.  Surely a Super Lawyer shouldn’t need more time given the other points the prosecutor has made.

The threat one’s own words pose to oneself is one of the things that scares me most about writing so much on the internet.  Shoot me if I ever refer to myself as a super lawyer.  But how can I?  A recent commenter wrote that something in a recent post of mine wasn’t “worthy of a First Year, much less a professor of law.”   And, after all, considering what the prospect for a hanging does to one’s mind, being wary of being hanged by my own words probably not the worst thing to consider when I’m spouting off.

(hat tip to Southwest Virginia Law Blog, via Brian Ledbetter)

I think the answer is yes.

James R. Elkins asks:

My question is this: Is there a way to make use of the imagined spaces in which we read-read as students of law, read novels for pleasure-and perceived chasm between pleasure and work? Is there a middle ground of reading, a strategy for reading, that would allow a student of law to think about reading law cases as literature and reading novels as if they might be of central importance in the way one becomes a lawyer? Is there a way to read law for pleasure and novels as instructive vocational texts? If so, we may find in “lawyers and literature,” that we’ll need to redefine pleasure and purpose; we redefine what it means to be a reader of law and of literature.

Are lawyers and artists completely different and atagonistic?

Wendy Duong of the University of Denver Sturm School has written an article entitled “Law Law is Law and Art is Art and Shall the Two Ever Meet? Law and Literature: the Comparative Creative Processes.”

It’s a fascinating article and well worth dowloading and reading, but here I’d like to take issue with one of her principle points.  As she puts it in the abstract to her article:

The two disciplines, Law and Art, remain divergent and incompatible in three core aspects: (i) the mental process of creation and the utilization of facilities, (ii) the work product or output, and (iii) the raison d’etre of law versus art. The Article points out that the mental process and utilization of facilities inherent in law has little to offer the creation of art, and the two creative processes are antagonistic to each other. In fact, the rationality and logic properties of law the objective of rendering certainty to uncertain future outcomes so as to achieve and maintain order — will interfere with, and can even destroy, the creation of art.

I will confess that I would not generally consider the product of legal practice “art” and it would be a stretch to fit even certain extraordinary legal products art –  Perhaps the Declaration of Independence? The Constitution? Certain influential legal opinions?)

But does law “render certainty to uncertain future outcomes”?  I passionately believe that an enormous part of the law does not do that at all, that what in fact it does is the kind of activity Ms. Duong attributes to art.

Life is infinite.  Each case courts decide are intended first, of course, to resolve the specific cases they are resolving.  But to the extent they render opinions, they are only contingently trying to address the future, and they know those contingent efforts are subject to irrelevance under new circumstances.

Moreover, life is constantly changing, and the law has to grow out of the material conditions it is always striving to govern.  In doing so, it is constantly striving to envision the future material conditions the law might apply to and to anticipate those conditions in making law.  Lawmakers then do not decide with a certainty what law they want to impose from above on the future; they collaboratively work out the best approach to whatever they can envision, knowing all the while that the law may well have to change in the future.

The practice of law too is the constant telling of stories — stories to persuade, stories to inspire, stories to justify visions of the future.  In doing so they are as constrained as artists in the “realities” available to them.  Lawyers are artists.  They may have to make decisions, but that doesn’t mean that in getting to those decision-making points they are not as creatively engaged as artists.

Finally, if lawyers aren’t engaging in the same mental facilities as artists, I don’t have a clue what mental processes artist and lawyers engage in.  I suspect if those ways of thinking are entirely divorced from one another, the lawyers aren’t practicing law well and the artists are not producing good art.

And if artists’ visions are irrelevant entirely from decisions people make in life (You must change your life.), what is it?

Someone must have traduced Maher A. . . .

Scott Finet, in one of the most frequently cited law review articles ever published — Franz Kafka’s The Trial as Symbol in Judicial Opinions — wrote in 1988 of literature in law. Specifically, he discussed the ways judges use references to The Trial, concluding that in writing opinions they used the novel’s depiction of Joseph K.’s encounter with an utterly arbitrary and incomprehensible legal system to illustrate their own system’s rationality and fairness:

This article will show how judges make references to The Trial in published decisions as a symbol of their commitment to the shared value of rational choice. Their references to The Trial seem to be an effort to resolve, on a symbolic level, the contradictions between the ideology of an orderly, rational legal decision making process and the sometimes incongruent workings of that process. This is not to say that the decision making process is or is not always predictable and based on rational choice, but that judicial decision makers, in an effort to legitimize themselves and the process, attempt to convince those affected by their decisions that the process is predictable and based on the shared value of rational choice.

Thus, Finet described one way judges frequently use The Trial – to discuss someone who is faced with the need to find the reason for his predicament. For example, a criminal defendant might be seeking the reasons for his prosecution, something Joseph K. was never able to discover:

In the cases that refer to The Trial one often encounters the supplicant who seeks information and resolution to his or her quest just as Joseph K. did in The Trial. The role of the information seeker can be played by the plaintiff or the defendant. Judges cite The Trial to demonstrate that they, unlike the illegitimate court in The Trial, are committed to the shared value of rational choice and that they will provide a resolution to the supplicant’s search.

Finet article is now over 20 years old.  I wonder what he’d make of the predicament faced by Guantanamo detainees, some of whom, we’re told, are too dangerous to release but can never be prosecuted because no U.S. court will allow the admission of evidence obtained by torture.   Even more to the point, perhaps, is the case of Canadian Maher Arar, arrested by U.S. officials on a stopover in New York, sent (via “rendition”) to Syria, and tortured there for a year before it was realized he was an innocent Canadian. And last year a U.S. court established that Mr. Arar could not sue in U.S. courts to establish that U.S. officials “acted illegally by removing him to Syria so that Syrian authorities could interrogate him under torture.” The Trial is not so much a contrast here; Mr. Arar found himself in New York’s Kennedy airport in a situation much like Joseph K. did at the very beginning of Kafka’s novel:

Someone must have traduced Joseph K., for without having done anything wrong he was arrested one fine morning.

Sorry, but your political enemies can use your copyrighted works (as long as their use is fair use).

Many people believe that an artist’s rights in her work include the right to prevent the use of the work on behalf of causes and beliefs she does not believe in. That may be true in Europe; it is not true in the U.S., provided that the use the artist is trying to deny does not exploit the markets created by the original work. In other words, politicians with whom singers disagree may well have the right to use excerpts from those singers’ songs. And the producers of movies that advance views with which the singers take strong exception may not have any worry as long as they are using the songs they are using aren’t being used merely to attract an audience to the movie by use of the song.

Times Higher Education explains the difference between European and Anglo-American law:

The later European view of copyright regarded a published work as the author’s offspring as much as his property, endowing him with inalienable moral as well as tradeable commercial rights. The Anglo-American tradition in copyright, which is based firmly in the notion of property and income, resisted this concept.

Thus, in June, a federal court in New York City denied Yoko Ono’s request for an injunction against further showing and distribution of the movie Expelled, which, as I have previously written, criticizes evolution, promotes the teaching of intelligent design, and, in the process, uses 15 seconds of John Lennon’s song “Imagine.”

As I wrote when Ono’s lawsuit was first filed, If the filmmakers had tried merely “to capitalize on the film as soundtrack material that would be attractive to an audience would likely not be fair use, but, if, as seems likely, the song is quoted to criticize its atheism, that use would likely constitute fair use, regardless of whether Ono finds the users’ message objectionable.” The court, apparently, thought similar things (citations and footnotes omitted; hyperlink added):

Defendants’ use is transformative because the movie incorporates an excerpt of Imagine for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” (“Imagine” lyrics) As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.” The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naïveté of John Lennon’s views. The excerpt’s location within the movie supports defendants’ assertions. It appears immediately after several scenes of speakers criticizing the role of religion in public life. In his voiceover, Ben Stein then connects these sentiments to the song by stating that they are merely “a page out of John Lennon’s songbook.” In defendants’ view, “Imagine” is a secular anthem caught in a loop of history recycling the same arguments from years past through to the present. We remind our audience that the ideas they just heard expressed from modern interviews and clips that religion is bad are not and have been tried before with disastrous results.”  The filmmakers “purposefully positioned the clip . . . between interviews of those who suggest that the world would be better off without religion and an interview suggesting that religion’s commitment to transcendental values place limits on human behavior. . . . mak[ing] the point that societies that permit Darwinism to trump all other authorities, including religion, pose a greater threat to human values than religious belief.”

Defendants’ use of “Imagine” is similar to the use at issue in a recent decision of the United States Court of Appeals for the Second Circuit in which fair use was found, Blanch v. Koons. There, the visual artist Jeff Koons copied photographer Andrea Blanch’s photograph from a fashion magazine without permission and incorporated a portion of it into one of his paintings.  . . . As in Blanch, defendants here use a portion of “Imagine” as “fodder” for social commentary, altering it to further their distinct purpose. Just as Koons placed a portion of Blanch’s photograph against a new background, defendants here play the excerpt of the song over carefully selected archival footage that implicitly comments on the song’s lyrics. They also pair the excerpt of the song with the views of contemporary defenders of the theory of evolution and juxtapose it with an interview regarding the importance of transcendental values in public life. Plaintiffs contend that defendants’ use of “Imagine” is not transformative because defendants did not alter the song, but simply “cut and paste[d]” it into “Expelled.” As the foregoing discussion illustrates, however, this argument draws the transformative use inquiry too narrowly. To be transformative, it is not necessary that defendants alter the music or lyrics of the song. Indeed, defendants assert that the recognizability of “Imagine” is important to their use of it.  Defendants’ use is nonetheless transformative because they put the song to a different purpose, selected an excerpt containing the ideas they wished to critique, paired the music and lyrics with images that contrast with the song’s utopian expression, and placed the excerpt in the context of a debate regarding the role of religion in public life. Plaintiffs also contend that defendants’ use of “Imagine” is not transformative because it was unnecessary to use it in order to further the purposes defendants have articulated.

Determining whether a use is transformative, however, does not require courts to to decide whether it was strictly necessary that it be used. In Blanch, although certainly Koons did not need to use Blanch’s copyrighted photo, as opposed to some other image of a woman’s feet, in his painting, the Second Circuit did not suggest that this lack of necessity weighed against a finding of fair use. Similarly, in Bill Graham Archives, the Second Circuit found a transformative use in the defendants’ unauthorized inclusion of several of the plaintiff’s images-principally concert photos-in a coffee-table book about the musical group the Grateful Dead.  Although the defendants manifestly could have proceeded without the plaintiff’s , which constituted only a small part of the book, this posed no obstacle to a finding of fair use.

As I said, I think the use of “Imagine” by the filmmakers without permission is legitimate fair use. Nonetheless, Lennon, and “Imagine” in particular, are being misrepresented. Lennon’s song imagines a world unpolluted by religious sectarianism, not exactly a radical view in light of the issues of the day. But that’s not a view many can find tolerable, even in the U.S. of 2008, and they’ll resort to misrepresentation to support their intolerance.  One day after the decision against Ono, the Wall Street Journal ran a story with the headline The Case Against John Lennon.  The quote that highlights the column?

Nothing to live or die for — what a nightmare.

Mike Thomas points out that the line is “Nothing to kill or die for” and asks:

What is going on here? Why is the WSJ promoting a column with such a provacative title and using a misquote to mislead readers into a negative reaction against John Lennon? The column itself is a mess. It is poorly written, jumbled and fails to adequately explain how John Lennon or his song “Imagine” has anything to do with what the column appears to be about. Here is the pertinent section that mentions Lennon:

“Mr. Sharansky has a new book, titled Defending Identity. It would be equally accurate to call it The Case Against John Lennon. Or, more specifically, the case against ‘Imagine,’ Lennon’s anthem to a world with ‘no countries . . . nothing to kill or die for/And no religion too.’ For Mr. Sharansky, a nine-year resident of the Perm 35 prison camp, that’s a vision that smacks too much of the professed beliefs of the ex-Beatle’s near namesake, Vladimir Ilyich.’

What the hell? Does he think he’s being clever or something? Lennon sounds like Lenin. Get it? So obviously they must be related or they must think alike or something right? Nevermind that “Lenin” was actually an alias for Vladimir Illich Ulyanov, while the surname Lennon dates back hundreds of years to old Ireland.

No, they sound alike so there must be a connection. Right? Kind of like how Obama sounds like Osama so they must be related too. Yeah. That’s the level of reasoning that the column sinks to.

Absolutely pathetic.

And of course he never goes back and explains how V.I. Lenin’s brutal and dictatorial ways have any similarity or correlation to Lennon’s ode to world peace. But fortunately for the cretins who run the WSJ editorial pages, John Lennon is dead and can’t defend his classic work against their asinine columnist’s offhanded smear.

Here’s Ken Miller, a biologist from my alma mater speaking at Case Western Reserve University, from which I am currently on leave, speaking on intellligent design, evolution, and religion:

If you can’t say it clearly, you aren’t thinking it clearly.

At Language Log, Geoffrey K. Pullum makes a crucial point in criticizing Sarah Palin’s inchoherence:

I think being so utterly unable to explain what one wants to say is truly and reasonably regarded as a defect in one’s qualifications for office – partly because being so inept at talking in a controlled and sensible way strongly suggests that there was no sensible thought back there, and partly because even if there were sensible thoughts back there somewhere, a leader needs to be more skilled at articulating them.

I suppose I’d qualify Mr. Pullum’s statement in one way — where there’s incoherence, there rarely are sensible thoughts, even allowing for the ungrammatical nature of a lot of spoken language,

In short, if you cannot write or speak your thoughts coherently, you don’t have coherent thoughts. Think about it. How often have you heard a lecture, thought how much brilliance was there, and then gone home to write down notes embodying that brilliance, only to find out that there are gaps and fallacies filling spaces that must be filled if the brilliance is to persist?

If you can’t say it, you don’t know it. On this point, Malcolm Gladwell’s Blink has been widely misinterpreted (and was perhaps intended) as a brief in favor of gut feeling over analysis. I think, given the compelling examples he writes about, that Gladwell’s thesis would better be stated as follows: the gut feelings of people well trained and experienced in a field are often better than analysis. There is a huge difference between the gut feelings of hockey moms untrained in tax or foreign policy and hockey moms trained in tax and foreign policy when it comes to opining on tax and foreign policy. Richard Posner’s review of Blink explains (emphasis and hyperlink added) my point well:

As Exhibit A for the superiority of intuitive to articulate thinking, Gladwell offers the case of a purported ancient Greek statue that was offered to the Getty Museum for $10 million. Months of careful study by a geologist (to determine the age of the statue) and by the museum’s lawyers (to trace the statue’s provenance) convinced the museum that it was genuine. But when historians of ancient art looked at it, they experienced an “intuitive revulsion,” and indeed it was eventually proved to be a fake.

The example is actually a bad one for Gladwell’s point, though it is a good illustration of the weakness of this book, which is a series of loosely connected anecdotes, rich in “human interest” particulars but poor in analysis. . . .

But back to the case of the Greek statue. It illustrates not the difference between intuitive thinking and articulate thinking, but different articulate methods of determining the authenticity of a work of art. One method is to trace the chain of title, ideally back to the artist himself (impossible in this case); another is to perform chemical tests on the material of the work; and a third is to compare the appearance of the work to that of works of art known to be authentic. The fact that the first two methods happened to take longer in the particular case of the Getty statue is happenstance. Had the seller produced a bill of sale from Phidias to Cleopatra, or the chemist noticed that the statue was made out of plastic rather than marble, the fake would have been detected in the blink of an eye. Conversely, had the statue looked more like authentic statues of its type, the art historians might have had to conduct a painstakingly detailed comparison of each feature of the work with the corresponding features of authentic works. Thus the speed with which the historians spotted this particular fake is irrelevant to Gladwell’s thesis. Practice may not make perfect, but it enables an experienced person to arrive at conclusions more quickly than a neophyte. The expert’s snap judgment is the result of a deliberative process made unconscious through habituation.