Steven Johnson, Lawrence Lessig, & Shepard Fairey at the NY Public Library on Mashup & Remix

Artists learn to cobble together successful careers.

QuestionCopyright.org describes an emerging new paradigm for artists in The Cobbler: A New Career Model for Artists and Entertainers:

“Filmmakers, musicians, and writers now have the opportunity to work in a more stable, less risky way — with an economic model like a corner shoe cobbler, with a skill and a loyal clientele. While it may not have the glamour of red carpets and stadium shows, it can be a life in which one’s vocation is sustainable, at a level that pays a living wage and allows one to be one’s own boss. One trades a small chance of making a lot of money quickly for a greatly improved chance of making some money steadily. For many artists, that’s a good trade-off.”

In short, artists are using the new means of production and distribution to control the creation, marketing, and sale of their work. It’s the inevitable outcome of what I described last January at Critical Mass regarding the future of books — the loss by the publishing, recording, and entertainment industries of control over the means of production and distribution of their products. As I wrote then, “[t]he entire publishing industry as we’ve known it is a walking corpse. You can almost imagine it as a zombie — composed of parts of Sarah Palin, Oprah, Dan Brown, and Tiger Woods — lumbering down Manhattan’s avenues.”

This new paradigm is no hypothetical. My sister, Amy Friedman, has written over 1000 stories over the past 20 years for Universal Press Syndicate (UPS) under the title Tell Me a Story. Since UPS was doing nothing to further develop the content, Amy managed to persuade them to sign back over to her the copyright for a handful of the stories. She, herself, put together musicians, actors, and recording engineers to produce three CD compilations of the stories. The first is 14th on Amazon’s list of audio books today. The third won a 2010 Audie Award, the equivalent of an Oscar in the world of audio books and spoken word entertainment. The second is pretty great too.

Amy is not alone. Matthew Rose is a dear friend, an artist who lives in Paris, and the inspiration that, through the resources of the online world has produced A Book About Death, a phenomenal exhibition that is ever evolving and ever-appearing in new incarnations in the physical world,

I could go on among just my acquaintances. The long and the short of it is this: don’t wait for the publisher, the recording company, the agent, the gallery, the production company.

Making creations property does not promote creation: fashion this time

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

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

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

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

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

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

Khan Academy: an invaluable new resource in your effort to learn everything

As I’ve written before,  good lawyers need to know everything. In other words, your professional life is  a constant and endless process of learning. One of the foremost skills you bring to your clients is an ability to become fluent in their affairs and to be able to communicate your understanding of those affairs clearly, concisely, and persuasively to audiences who may never have encountered those things.

Libraries, of course, are therefore invaluable. And the internet is a miracle. But still, finding the right resources to learn a particular topic is difficult. I came out of college and law school knowing Latin and Ancient Greek and a lot of history and literature, but I needed to learn an awful lot very quickly about things like finance, insurance, economics, and business, and the effort to educate myself was an adventure. The internet has, of course, only multiplied the tedious, obscure, and downright erroneous “authorities.” So I am always thrilled to find a source that speaks to me and genuinely teaches me. And I am thrilled to have found Khan Academy. As the home page explains:

The Khan Academy is a not-for-profit organization with the mission of providing a high quality education to anyone, anywhere.

We have 1400+ videos on YouTube covering everything from basic arithmetic and algebra to differential equations, physics, chemistry, biology and finance which have been recorded by Salman Khan. . . .

The Khan Academy and Salman Khan have received a 2009 Tech Award in Education. The Tech Awards is an international awards program that honors innovators from around the world who are applying technology to benefit humanity.

Here is Mr. Khan’s introductory video:

Losing $500 million was a legal win: outcomes and predictions from a lawyer’s point-of-view

In case you haven’t read it already, there’s a new study that purports to establish that lawyers consistently overestimate the chances of success in their cases (pdf). David Post of the Volokh Conspiracy takes the study and applies the typical academic condescension to practitioners: “I’m constantly amazed, given the obvious fact that half of all litigants are holding losing hands, at how easily most lawyers can persuade themselves of the rightness of their client’s cause.”

Jeff Gamso, a criminal defense attorney (and former English professor!) in Toledo, Ohio who writes a terrific blog, Gamso for the Defense, takes a much more nuanced approach to the study in his post, “Blessed are the Oddsmakers.” First, it’s important to note the difference between criminal defense and civil litigation. As Gamso reminds his readers, in his practice, “[m]ost trials result in guilty verdicts. But most cases aren’t tried; they’re resolved by pleas of one sort or another.” It reminds me of what a friend of mine, a public defender, once told my class in response to the question “what’s the hardest part of your job?” He answered, “Losing 95% of my cases.”

But Gamso reminds us that pleas, the criminal analog to a civil settlement, is a strategic move made with the best possible` estimation of likelihood of success at trial, an estimation by no means easy to make:

The idea of the plea is that it’s a compromise because trials are problematic. They’re a lot of work and they are, ultimately, uncertain. Anyone who’s been at this for a while can tell you that juries and judges sometimes surprise. We win (whatver that means) some cases we should lose. We lose (whatever that means) some cases we should win. The jury, the judge, the world sometimes just gets it wrong.

Accordingly, the decision to accept an offer from the other side is a complicated combination of prediction of an uncertain future, the ability to convey the relevant information to the client, the other side’s own predictions and resulting offer (if any), the client’s own inclinations and decision (it is his decision), and the adversary’s response to the client’s decision.

Perhaps most importantly, however, it’s fundamental to any effective legal representation to understand that lawsuits and prosecutions are not binary, win/loss situations. Overcoming binary thinking is, in fact, one of the most important and difficult tasks in teaching first year law students. It’s difficult enough to get students to understand that the outcome of a case is the only thing that matters to a client, but then also to get them to realize that the result is usually a whole lot more complicated matter than merely stating that the plaintiff or defendant won or lost. (And it’s a shame that Remedies is one of the most neglected courses in law schools these days.) Let’s get this straight: Exxon won the litigation which resulted in it paying over $500 million in punitive damages. Or, as Gamso so pungently puts it in connection with criminal defense:

[David] Dow tells of Van Orman, an innocent man on death row. He simply didn’t commit the crime. He’s also got mental retardation. Dow proves the retardation and gets him off the row. Now the innocent man will do life in prison. “But I’m a death-penalty lawyer and Van Orman won’t get executed, so I count it as a victory. One of my clients committed suicide a week before his execution. That’s a victory. Another died of AIDS. A victory.”

You bet. I had a client who died of hepatitis right after I filed the papers asking the U.S. Supreme Court to hear the case. He died before the state had a chance to reply, certainly before the Court ruled. That goes down as a win. That’s how it works when you’re doing death penalty defense. Whenever the government doesn’t murder your client, you’ve got a win.

All of which is a way of saying that in this business, winning often isn’t an all-or-nothing proposition. Confession suppressed? Win. Even if the drugs aren’t suppressed? Yep. Just not a complete win.

•Get some of the charges dismissed? Win. Even if the client’s found guilty of some things? Yep. Just not a complete win.

•Get a five year sentence? Win if the client might have gotten 8. Or 50.

•LWOP? Win if the alternative was death.

•Continuance? Hung jury? Wins. Even if they’re only temporary. (The old line is that a continuance is as good as an acquittal – it just doesn’t last as long.)

•Client goes home after a not guilty verdict? Big Win.

And on it goes.

The key isn’t that what counts as a win depends. The key is that you need to have a sense of things. (emphasis added)

Yes, the key is to have a sense of things. A win is getting the best outcome the circumstances permit you to get for a client. Do human beings tend to be overconfident in their predictions? Cognitive science establishes that does indeed seem to be the case, and as a lawyer you ought to be aware of it, and you ought to be aware that your adversary shares the same bias, and you ought to be aware of the risks associated with going to trial, and you ought to be aware of your client’s fears and desires and his ability to deal with risk and loss. You need to have a sense of an infinite number of things, and the better your sense of these things is and the better you are at communicating them to your client, the better you will be as a lawyer and the better the outcomes you will produce. Will you be able to tally those outcomes as wins and losses? Only if you have a very flexible understanding of what constitutes a win or a loss.

A key to effective creative effort: copying. Or “don’t reinvent the wheel.”

A genius with whom I once worked, Gene Anderson, ran our firm pursuant to “10 principles” (there were more than 10, but that discrepancy was entirely consistent with the principles). An important one was “don’t reinvent the wheel.” You’re job is to represent the client as well as you can, and that means as efficiently as you can. If someone else has written the great brief on the point you’re arguing, start with that brief (even if it was an adversary’s). As I’ve written in an article to be published, this notion is entirely consistent with legal authorship. More importantly by far, it is good business. So Scott Berkun is acting wisely in his most recent Bloomberg Businessweek column, “Stop Trying to Reinvent the Wheel,” in which he identifies ignorance and the over-valuing of novelty as the principal reasons for failing to appreciate the utility of recycling:

The key reason people look to reinvent things is that they don’t know what’s already been done. Ignorance, one way or another, is the leading cause of wasted effort everywhere. People who don’t spend time studying the problems they’re trying to solve are bound to reinvent something, and likely not nearly as well. There are only so many ways to design a website, a marketing campaign, or even a product strategy. Instead of driving minions into further brainstorming sessions, it would be wise to ask: Who else has tried to solve this problem? Can we learn from what they have done?

The second reason for reinvention pertains to ego and rewards. In many corporations there is more prestige to be gained for making something new than for reusing work done elsewhere in the company or industry. This is true even when the newly made thing is much worse that what already existed. An executive might proclaim the wonders of the new (worse) thing to his division without encountering anyone willing to stand up for the old (better) thing. It’s harder to inflate the importance of one’s own work if the key decision was to buy or borrow from elsewhere. The verbs “make,” “invent,” and “create” lead to more promotions than “reuse,” “borrow,” or “convert.” In Pavlovian terms, if a culture rewards unnecessary reinvention more than it honors wise reuse, the ambitious will follow suit. Asking people to behave one way while rewarding them for another has predictable results. The counter notion to NIH—”PFE,” or “Proudly Found Elsewhere”—has been talked about before, but I’ve rarely seen it thrive.

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?

The Great Lakes Union: a great idea that just keeps getting better

One year ago I made the following proposal: “The states and provinces bordering the Great Lakes should secede from the U.S. and Canada, form their own country (the Great Lakes Union), and exert exclusive control over the water in the Great Lakes. In other words, we’d “go OPEC” with respect to water.”

Steven Solomon, in Freshwater Scarcity: The Greatest Crisis Most Americans Have Never Heard Of, lends my idea some credibility. Solomon writes:

“Today, for the first time in human history, the global well is starting to go dry — and we are all about to learn the painful lessons of what happens when societies run short of history’s most indispensable resource.

“Freshwater is overtaking oil as human society’s scarcest critical resource. And just as oil transformed the history of the 20th century, freshwater scarcity is starting to re-define the geopolitics, economics, environment, national security, and daily living conditions of the 21st century.

“What is happening, essentially, is that under the duress of the voracious demand of our global industrial society that uses water at twice the rate of our rapid population growth, there is simply not enough available, sustainable supplies of freshwater in more and more parts of the world on current trajectories and practices, to meet the needs for food, energy, goods and accessible safe drinking water for our 6.7 billion, much less the 9 billion we’re becoming by 2050. Due to the uneven distribution of population pressures and water availability, global society is polarizing into water “Haves” and “Have-Nots.”

There may after all be useful methods to develop effective analogies to help guide your legal research!

I did at least acknowledge in Friday’s post about the difficulties of research that my words originated at an hour when I felt at “rock bottom.” The essence of my “advice” was not terribly helpful as an educational matter except perhaps in emphasizing to students the enormity of the task and the difficulty of the work they are taking on when they do legal research. I wrote:

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.

But in emphasizing the difficulty and artistic aspects of legal research (beliefs I do not hereby recant), I entirely ignored the perfectly legitimate question asked by one professor on behalf of her students: are there any methods that are helpful in developing the analogies that are so central to legal argument?

So I did what I should have done in the first place if I were going to speak with any authority on research — I did some research, and, in fact, I found that there may be methods that can help students develop meaningful and useful analogies they can subsequently use to guide their research with increased effectiveness. See, e.g., I. Blanchett & K. Dunbar, How Analogies are Generated: the Role of Structural and Superficial Similarity, Memory & Cognition 2000, 29, 730-735 (pdf) and sources cited therein.

One can, of course, make a lists of items and ask students which ones belongs and which one doesn’t. You might list, for example, Oprah Winfrey, Orin Hatch, Hilary Clinton, and Olympia Snowe. In doing so, the students could recognize that the group of 4 could be classified according to a number of different criteria, and each criterion would exclude a person the other criteria would not. There are 3 women. There are 3 politicians. There are 3 people whose first names begin with the letter O.

This type of exercise does help students recognize that analogies are based on the similarities between different situations, and that of course is a necessary first step in teaching argument based on analogy.

The problem with this type of exercise, however, is that experiments show that it leads subjects to focus on surface similarities between the situations they are comparing rather than on underlying structural similarities. Blanchett & Dunbar at 3. In contrast, however, research shows that the analogies people use to solve real world problems “tend to be based on deep structural features rather than superficial features.” Id. at 4.

Fortunately, however, there are studies supporting at least one method of increasing the ability of subjects to identify situations that share deep structural similarities and, therefore, provide more meaningful analogies and more effective problem solving. Simply put, the subjects are split into 2 groups and are presented with a problem, associated issues, and 2 opposing approaches to solving the problem. One group is asked to generate analogies supporting one group, and the other to generate analogies supporting the opposition.  In one experiment, for example, subjects were presented with the question of whether Canada should run a public deficit or instead balance its national budget. One group was asked to generate analogies that would be helpful to a group arguing for a balanced budget, while the other was asked to identify analogies helpful to a group supporting deficit spending. Id. at 5.

The results showed that the analogies developed by the groups were not very influenced by superficial similarities, that the groups generated a wide variety of analogies, and that they drew those deep-structure analogies from domains not typically associated with the target problem. Thus, instead of focusing on matters typically associated with debates over national budgets — economics, politics, and personal finance (if I can balance my checkbook, why can’t the government?!) — the analogies were  drawn “from domains as varied as natural resources, eating, illness, and domestic tasks.” Id. at 9. Further studies have shown similar results and have suggested that individuals generating analogies alone are more effective than groups at finding deep structural similarities in situations that are not superficially similar. Id. at 13.

So here may be a useful tip for a student trying to find analogies to legal problems he or she is trying to develop arguments about:

Sit down alone, without resort to any sources other than your own imagination, and try to think of as many situations that are similar to the problem or issue you are addressing in ways that support the position you are taking on the issue. Don’t feel constrained by case law you may have happened to have read or what you feel lawyers are supposed to do. Use your imagination, and draw on whatever  you can. You’ll end up with a number of analogies. Then you can go to secondary sources, identify cases that involve those types of situations, and perhaps in those cases you’ll find arguments and analogies useful in the case you are trying to solve. You might even find very good ones no one has considered before. Lawyers do that all the time.

What if corporate decision makers lost money when they made bad decisions?

Back in January, criticizing the Supreme Court decision equating the free speech rights of corporations with those of individuals, I pointed out 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). As I wrote:

Individuals at AIG were making individual fortunes based on the income they were bringing into AIG for selling credit default swaps. Those individuals were making and would retain those fortunes even if, as turned out to be the case, AIG might not have sufficient funds to pay off the obligations those credit default swaps imposed on AIG. In other words, if one treated AIG as a rational person, one would suppose AIG would never expose itself to a real risk of obligating itself to pay more than it had in reserve. But AIG is merely a corporation, and the individuals actually making the decisions on behalf of AIG had every incentive to get what they could, subject AIG to irrational risk, and be able to walk away with their tens of millions of dollars.

I wasn’t just engaging in paranoia. I spent too many years with investment bankers to entirely forget their reality. And I have data to back me up:

In a study late last year, three Harvard Law School researchers examined public documents to assess whether one “standard narrative” of the crash was true — that “the meltdown of Bear Stearns and Lehman Brothers largely wiped out the wealth of their top executives.” It turned out to be a fairy tale. “In contrast to what has been thus far largely assumed, the executives were richly rewarded for, not financially devastated by, their leadership of their banks during this decade,” the Harvard Law team wrote. The top five executives at both Lehman and Bear collectively took home $2.4 billion in bonuses and equity sales — that’s nearly a quarter-billion dollars each — between 2000 and their 2008 demise.

Last week, William D. Cohan made much the same point in connection with the entire Wall Street ethic:

What if the biggest rewards on Wall Street went to those who thwarted dangerous and excessive risk-taking instead of to those who enabled, approved or simply ignored it?

What if every senior Wall Street executive had to worry that he could lose his entire net worth at any moment — including his mansions in Greenwich, Conn., and Palm Beach to say nothing of his job — if the revenue he was generating turned out to be unprofitable or excessively risky?

Wouldn’t that combination of potential rewards and fear of calamitous personal loss instill in every Wall Streeter a zealous desire to insist that the products his firm was peddling were safe for others to buy?

If such simple incentives had been in place on Wall Street, wouldn’t the latest crisis — as well as the multitude of others that have been perpetrated on us in the past 25 years — been largely avoided? . . .

The obvious answer to these questions is that human beings always do what they are rewarded to do and always have, especially on Wall Street. Rewarding prudent risk-taking on Wall Street while punishing recklessness would result in a new ethic on Wall Street, one not solely driven by generating as much revenue as possible in a given fiscal year with no regard to the long term.

To that end, shareholders must demand that corporate boards of directors revamp the entire compensation structure on Wall Street away from one based on revenue generation to one that rewards long-term profits. For goodness sake, what other business on the face of the earth, aside from Wall Street, pays out between 50 percent and 60 percent of each dollar of revenue generated to employees in the form of compensation!

And yet the Wall Street Journal’s stance on financial reform is the same as its stance on health care reform: “Once ObamaCare becomes law, the next big legislative rush is going to be for financial reform, but as we look at Senate Banking Chairman Chris Dodd’s latest draft we can’t help but wonder: Why the hurry?”

Indeed, why? There’s money still to be made . . .

Law isn’t about what’s legal and illegal; it’s about serving clients.

Law students, too many lawyers, and most non-lawyers think that lawyers tell clients what they can do and what they can’t — what’s “legal” and what’s not. This caricature is so far from the truth it’s laughable. Lawyers serve clients, and there is so, so much more that drives client decision making than what the law states (except, perhaps, in those exceedingly rare instances when the law mandates a certain decision).

So it’s refreshing that Settlement Perspectives reviews the kinds of questions clients want to hear from their lawyers but don’t hear often enough. Perhaps the most important one is this:

What is an acceptable outcome in this matter?

The article goes on to list a number of other questions of particular import to clients, including this one, perhaps most immediately comprehensible to my first year students:

In the case of a litigated matter, on the continuum between winning and losing, what is considered acceptable? Is there a possibility for success short of complete victory? Prevailing without success? Not prevailing but not losing?

(Hat tip to What about Clients?)

New solutions for new problems: who knows your passwords after you die?

Here’s a new problem: how do your heirs get access to your financial accounts and other online information after you die? You can, of course, be sure to maintain a file of your user names and passwords, but you run the risk of forgetting to change the list as you change passwords, and who among us has compiled such a list?

Into the vacuum created by such needs come solutions. As Rafe Needleman writes, “Legacy Locker simply backs up the passwords and access codes to your online accounts. When you die, it gives that information to the people you designate.” And the system (scheduled to become operative in April) comes with all sorts of backup systems built in:

The system periodically tries to log on to your accounts for you. If it can’t–if you’ve changed passwords–it alerts you to update your records. Also, Legacy Locker only unlocks if two people whom you’ve designated confirm your death, and even then only if one of them supplies a death certificate to the company. Legacy Locker staff handles this; the unlock procedure is not wholly automated. Toeman claims that the system’s files are all encrypted and cannot be unlocked without authorization.

Of course, it comes with a price — $29.99 a year or $299.99 for a lifetime subscription. And Life Locker plans to market itself primarily to estate planners, who will pass on the cost to their customers.

And, of course, I hope it’s not just a very effective phishing scheme.

Our capacity to be just is measured by our capacity to do justice to those most in need of it.

The only way to do justice is to provide opportunities for justice. 50 years ago, in Gideon v. Wainwright, the Supreme Court ruled that a criminal defendant has a constitutional right to representation by a lawyer and that, if he cannot afford one, the state must provide him with one. Now, with our states and local governments starving for money, this foundation of our justice system is sorely threatened. Two lawyers whose careers have been devoted to these issues, Virginia Sloan and (my good friend) Cait Clarke, write:

The report of the Constitution Project’s National Right to Counsel Committee, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, is the most comprehensive examination of the indigent defense crisis in over 30 years. The Committee, whose members represent every relevant part of the criminal justice system, including prosecutors, judges, victim advocates, defenders, bar leaders, and scholars, unanimously concluded that this country’s indigent defense system is in crisis, that the government has for too long ignored its obligation to provide lawyers in these cases, and that it cannot be ignored anymore. The report outlines 22 urgently-needed recommendations for reform.

One of the most important recommendations is that indigent defense should be provided through an independent, non-partisan authority that appoints qualified, experienced lawyers who have adequate resources. Of equal significance is the recommendation that the federal government assist the states in ensuring that the Sixth Amendment is protected and that poor people have the kind of lawyers to which they are constitutionally entitled. The federal government provides badly-needed funding for law enforcement and prosecutors, but to continue doing so without also providing funding for public defense services simply exacerbates the already untenable situation.

Another recommendation is that the federal government should create a federal office of public defense services to distribute funds, collect data, promulgate standards, and develop and deliver training similar to the federally-supported training for state and local prosecutors. Additionally, the federal government should require all states to abide by national standards for public defense. Adoption of the American Bar Association’s Ten Principles would provide constitutionally adequate legal representation for criminal defendants unable to afford an attorney.

One innovative idea that will improve the quality of representation for indigent defendants is to create a national fellowship program to cultivate and train the next generation of indigent defense lawyers. This would dramatically increase the number and caliber of lawyers working to secure justice for clients and communities. Equal Justice Works, working in partnership with the Southern Public Defender Training Center (SPDTC), is proposing to do just that.

Street Smarts, Book Smarts, and Making them Work Together

Scott Berkun compares “book smarts” to “street smarts” and concludes: “street smarts kicks book smarts ass.”

I agree, though, as does Berkun, in saying so I do not intend to demean the importance of book smarts. Street smarts, as Berkun explains, is the knowledge born of experience:

To be street smart means you have situational awareness. You can assess the environment you are in, who is in it, and what the available angles are. Being on the street, or in the trenches, or whatever low to the ground metaphor you prefer, requires you learn to trust your own judgment about people and what matters. This skill, regardless of where you develop it, is of great value everywhere in life regardless of how far from the streets you are.

Most important perhaps, being street smart comes from experience.

To me the most compelling part of Berkun’s post is his insistence that to be street smart is to rely on your own judgment, not the answers someone else has set out for you and you’ve found:

The prime distinction between street smarts and book smarts is who is at the center of the knowledge. On the street, it’s you. In a book it’s you trying to absorb someone else’s take on the world, and however amazing the writer is, you are at best one degree removed from the actual experience. Street smarts means you’ve put yourself at risk and survived. Or thrived. Or have scars. You’ve been tested and have a bank of courage to depend on when you are tested again.

I would only add that making your own judgment the center of book learning will make the book learning itself more effective. And you don’t need the experience of decades to do so. If you read to find answers without evaluating, trying out, and considering alternative to those answers, the answers are just so many abstract symbols that are virtually impossible to translate into future action. But if you do bring your own judgment and imagination to reading, you can make your street smarts improve your book smarts, and those improved book smarts will in turn improve your street smarts.

True innovation in health care: no-fault insurance for bad medical outcomes.

We would make genuine and profound progress in “fixing” our health care system if we replaced the existing malpractice system with (1) no-fault insurance to compensate patients for the long-term medical and personal costs of bad medical outcomes and (2) an effective mechanism by which the medical profession policed the quality of the care provided by its members.

One political war that never seems to wane is over the medical malpractice system. On the one hand there are the doctors, the insurance companies, and right-wingers screaming that it is medical malpractice that is bankrupting us; on the other, there are the malpractice lawyers and the rest of us who want protection against the risk of suffering unexpectedly from medical treatment.

The critique of the malpractice system has a lot of validity — it’s a lottery in which those patients who have gone to the trouble of hiring lawyers under circumstances smelling sufficiently of medical negligence make out well and the rest of those injured by bad medical outcomes are left with nothing. As a result, too, doctors practice defensive medicine, driving up medical costs for all of us.

But that’s not the entire story. Our health insurance system is a failure, and patients who suffer bad medical outcomes often won’t have coverage sufficient to provide them the care required by the bad outcomes. The only alternative is to sue for malpractice, but the premise of malpractice is that there is no recovery unless the patient is able to prove the doctor was negligent.

Is it any wonder, then, that in a close case, given the choice between, on the one hand, compensating a badly injured patient from with money provided by an insurance company and, on the other, declaring the doctor to be without fault, a jury of human beings will tend to do the merciful thing and find the doctor acted negligently?

Doctors, of course, hate that question. They look at malpractice cases as judgments on their talents, not as tests of mercy. A jury that finds a doctor liable for malpractice has, in the doctor’s eyes, found the doctor to be a bad doctor. To the doctor on trial, The patient’s injuries –as opposed to the doctor’s efforts — are irrelevant.

The dilemma is obvious. First, bad medical outcomes are inevitable regardless of the adequacy of care. As a result, bad medical outcomes are risks we all face. Second, our existing insurance scheme does not spread this risk — rather, those who suffer bad medical outcomes and are not compensated by the malpractice system themselves bear all the costs of that risk.

Wouldn’t we be better off if everyone who suffered a bad medical outcome was compensated for the costs that arose out of that bad medical outcome regardless of the quality of the medical care? No one would be over-compensated, everyone would be fairly compensated, and the abilities of doctors wouldn’t be judged by juries of lay people who are motivated to disregard good judgment regarding those abilities by an entirely understandable and praiseworthy sense of human sympathy.

Such a scheme does raise one problem that the critics of the malpractice system also ignore — we really do enjoy a remarkably high standard of care in this country precisely because of the malpractice system. Doctors have never gone to the trouble of instituting an effective means of policing the quality of medical practice. To some degree they haven’t needed to do so because the risks posed by the malpractice system have forced insurance companies to take on that role. To replace the malpractice system with a no-fault insurance system, therefore, would require some genuine quality control imposed by the medical profession itself.

But if we simply gut the malpractice system and ignore the costs of bad medical outcomes and the need for some genuinely effective means of quality control, we would instead have the worst of all worlds.

Holy flipping animal crackers, that doesn’t even warrant a response . . .

Robert Lanham comes up with the definitive response to concerns that the publishing industry is dying – ENG 371WR: Writing for Nonreaders in the Postprint Era. The course description is priceless, beginning as follows:

As print takes its place alongside smoke signals, cuneiform, and hollering, there has emerged a new literary age, one in which writers no longer need to feel encumbered by the paper cuts, reading, and excessive use of words traditionally associated with the writing trade. Writing for Nonreaders in the Postprint Era focuses on the creation of short-form prose that is not intended to be reproduced on pulp fibers.

SNAFU, anyone?

It’s not for nothing the word “snafu” is a military coinage. Ars Technica reports that “militants [in Iraq and Afghanistan] have been intercepting US Predator drone video feeds using laptops and a $30 piece of Russian software, and that the military has known of this vulnerability since the Nineties. But at least we have our priorities straight:

Operating system vendors have built entire “protected path” setups to guard audio and video all the way through the device chain. TVs and monitors now routinely use HDCP copy protection to secure their links over HDMI cables. Game consoles are packed with encryption schemes to prevent copied games from playing. Microsoft even goes out of its way to add encryption when Windows Media Center records unencrypted over-the-air TV content. Even the humble DVD, with its long-since-breached CSS encryption, offers more in the way of encryption.

But US drones, which spy on militants and rain down death from a distance, have none. The mind boggles, as it seems like the situation should be totally reversed: no encryption on legally-purchased content, more encryption on devices designed to watch and kill human beings.

But the fact Obama didn’t immediately bow down to the military and order up General McChrystal’s 40,000 troops the moment they were demanded was “dithering.” Too bad Johnson didn’t follow Kennedy’s lead and dither himself in Vietnam:

In November 1961 Kennedy sent Gen. Maxwell Taylor and foreign policy adviser Walt Rostow to South Vietnam. On their return they reported that it was possible for the South Vietnamese to defeat the Communist insurgents without an American takeover of the war effort if the United States provided strong political backing for the South Vietnamese government and provided substantially in-creased military and economic assistance. They further recommended that President Kennedy send 8,000 combat troops to South Vietnam. Kennedy decided against sending combat troops but authorized the deployment of up to 15,000 military advisers. By the time of Kennedy’s assassination in November 1963 the U.S. effort in Vietnam was costing $400 million a year, and about 12,000 military advisers were providing assistance to the South Vietnamese military effort. By the end of 1963 there had been only 70 American casualties.

Of course, in “January 1964 the Joint Chiefs of Staff had sent President Johnson a memo urging him to increase the U.S. commitment and to consider a bombing campaign against North Vietnam. By following these two strategies the military hoped that the war could be won more quickly. The commitment of U.S. troops was doubled; by the end of 1964 there were 23,300 Americans serving in Vietnam.”

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

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

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

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

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

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

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