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.

Own your words. Anonymity is cowardice, and cowards aren’t known for their wisdom.

An important lesson for my legal writing students: you must own your words to be genuinely persuasive.

By that, of course, I do not mean that their words are their property. There’s a lot of confusion about that issue, but that’s not today’s lesson.

What I mean is that it’s not enough to parrot words you believe are authoritative to make your case. You must use words you know in your heart state what you mean. Parroting the words of others, even if they are authoritative, won’t do that. Which is why one of my favorite quotes is Ralph Waldo Emerson’s: “I hate quotations. Tell me what you know.” (I love paradox too.)

But in order to own your words you have to have the courage to stand behind them too. It’s one reason I bemoan the influence of anonymous student evaluations. It’s why too I’m all in with Dan Hull in this insane exchange about his insistence that anonymity is the death of productive discussion on the internet.

What possible conviction can you hold in your words if you’re not even willing to put your name to them? As Dan makes clear, there are of course exceptions to this rule — there are times anonymity is necessary to preserve one’s safety. But legitimate fear for one’s safety for stating disagreement is a rare thing that we don’t encounter terribly often in 2010 on the internet in the United States. It’s almost hilarious to find people disputing Dan under the pseudonyms “Publius” and “Marcus Agrippa.” Almost hilarious. Really, it’s pathetic.

If you can’t own your words, put yourself forward as the authority behind your words and rely on the force of those words and your own integrity for their persuasive effects, you cannot be a lawyer. I’ve said it recently: a good thing about being a lawyer is there is always someone telling you your wrong. You have to be willing to put your ideas and words to the test, and you have to be willing to adapt and adjust when your words have been successfully challenged. To hide behind a pseudonym is nothing but cowardice, and cowards aren’t known for their wisdom.

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

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

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

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

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

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

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

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

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

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

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

When someone tells you they have an “objective” method of judging value, run!

One of the reasons I find disputes concerning the authenticity and provenance of works of art so fascinating is that the art market often magnifies the subjectivity and volatility that all markets are subject to. In practice 20 years ago I often deposed investment bankers at great length on their methods and judgments in valuing companies. I was always amazed at the subjectivity that went into numbers that got translated into hard dollar amounts that investors treated like objective, indisputable measures of value. Now, in a fascinating piece in the New Yorker, David Garan writes about

Canadian forensic art expert named Peter Paul Biro, who, during the past several years, has pioneered a radical new approach to authenticating pictures. He does not merely try to detect the artist’s invisible hand; he scours a painting for the artist’s fingerprints, impressed in the paint or on the canvas. Treating each painting as a crime scene, in which an artist has left behind traces of evidence, Biro has tried to render objective what has historically been subjective. In the process, he has shaken the priesthood of connoisseurship, raising questions about the nature of art, about the commodification of aesthetic beauty, and about the very legitimacy of the art world. Biro’s research seems to confirm what many people have long suspected: that the system of authenticating art works can be arbitrary and, at times, even a fraud.

Of course, as Garan writes, the desire to replace subjective judgment regarding the authenticity of artworks with some “objective” scientific method is longstanding:

The desire to transform the authentication process through science—to supplant a subjective eye with objective tools—was not new. During the late nineteenth century, the Italian art critic Giovanni Morelli, dismissing many traditional connoisseurs as “charlatans,” proposed a new “scientific” method based on “indisputable and practical facts.” Rather than search a painting for its creator’s intangible essence, he argued, connoisseurs should focus on minor details such as fingernails, toes, and earlobes, which an artist tended to render almost unconsciously. “Just as most men, both speakers and writers, make use of habitual modes of expression, favorite words or sayings, that they employ involuntarily, even inappropriately, so too every painter has his own peculiarities that escape him without his being aware,” Morelli wrote. He believed that not only did an Old Master expose his identity with these “material trifles”; forgers and imitators were also less likely to pay sufficient attention to them, and thus betray themselves. Morelli became known as the Sherlock Holmes of the art world.

To many connoisseurs, however, the nature of art was antithetical to cold science. Worse, Morelli made his own share of false attributions, prompting one art historian to dismiss him as a “quack doctor.”

But Garan’s article reveals that Biro may not be all he’s cracked up to be. Neither are objective methods of valuing business.

Just say it!

It is a truth often assumed that a lawyer in need of an argument must arm herself with rules stated in legalese. There could be few more difficult assumptions to overcome in educating new lawyers.

One of my more profound light bulb moments as a young lawyer came a few months into my first job, after I’d written the first draft of a brief for a partner. After he’d had a chance to review the draft he called me into his office to discuss it. I entered, carrying, of course, the draft that by this time I’d virtually memorized. He asked me why I thought we’d win. I glanced at the draft and he said, “No. Put it down. I want you to tell me in your own words, in plain English, without telling me what the cases say.” So I slowly sputtered out a brief explanation in plain English, thinking that this was going to be painstaking, that the simple plain English explanation would be followed with a discussion of each case and the reasoning of each judge in each case, and then we’d have to cobble all these pieces together . . .

In response to my plain English explanation, he said, “Then why didn’t you just say that?” I blinked, and asked in stupid amazement, “I can do that?” He laughed, and answered, “That’s exactly what you are supposed to do.” Wow, just explain in plain English, without resort to legalistic rules and long chains of reasoning from premises established by Lord Blackstone? What an amazing idea, and what a truly difficult one to grasp.

I was reminded of this today when I read the post at Lawyerist.com entitled “Improve Your Legal Writing: Just Say It“:

Say what you want to say. Do not imply it, do not hint at it, just say it. This can be difficult at times, but it will improve your writing, and make your arguments more persuasive.

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.

Father Coughlin’s Tea Party, 1939

We know the price of everything and the value of nothing.

A couple of weeks ago I quoted from Tony Judt’s critique of free market ideology. Raj Patel, in “How Free Market Delusions Destroyed the Economy,” goes into considerable depth about the stupidity of our faith in markets, but this brief point makes clear the wisdom underlying the entire article:

There is a discrepancy between the price of something and its value, one that economists cannot fix, because it’s a problem inherent to the very idea of profit-driven prices. This gap is something about which we’ve got an uneasy and uncomfortable intuition. The uncertainty about prices is what makes the MasterCard ads amusing. You know how it goes — green fees: $240; lessons: $50; golf club: $110; having fun: priceless. The deeper joke, though, is this: The price of something doesn’t measure its value at all.

Are free markets always the best? Of course not, and where’d we get that idea?

Ideas often trump reality, especially in law. In my career, Law and Economics, grounded in the principle that law works best when it serves some notion of economic efficiency, has grown from a rather small movement identified with the University of Chicago into perhaps the dominant legal theory in our law schools and among our more prominent judges. I’ve always thought, for a number of reasons, that the faith in “markets” on which Law and Economics is grounded is bunk. I’m plainly not alone. Tony Judt writes:

In the last thirty years, a cult of privatization has mesmerized Western (and many non-Western) governments. Why? The shortest response is that, in an age of budgetary constraints, privatization appears to save money. If the state owns an inefficient public program or an expensive public service—a waterworks, a car factory, a railway—it seeks to offload it onto private buyers.

The sale duly earns money for the state. Meanwhile, by entering the private sector, the service or operation in question becomes more efficient thanks to the working of the profit motive. Everyone benefits: the service improves, the state rids itself of an inappropriate and poorly managed responsibility, investors profit, and the public sector makes a one-time gain from the sale.

So much for the theory. The practice is very different. What we have been watching these past decades is the steady shifting of public responsibility onto the private sector to no discernible collective advantage. In the first place, privatization is inefficient. Most of the things that governments have seen fit to pass into the private sector were operating at a loss: whether they were railway companies, coal mines, postal services, or energy utilities, they cost more to provide and maintain than they could ever hope to attract in revenue.

For just this reason, such public goods were inherently unattractive to private buyers unless offered at a steep discount. But when the state sells cheap, the public takes a loss. It has been calculated that, in the course of the Thatcher-era UK privatizations, the deliberately low price at which long-standing public assets were marketed to the private sector resulted in a net transfer of £14 billion from the taxpaying public to stockholders and other investors.

To this loss should be added a further £3 billion in fees to the banks that transacted the privatizations. Thus the state in effect paid the private sector some £17 billion ($30 billion) to facilitate the sale of assets for which there would otherwise have been no takers. These are significant sums of money—approximating the endowment of Harvard University, for example, or the annual gross domestic product of Paraguay or Bosnia-Herzegovina.[2] This can hardly be construed as an efficient use of public resources.

In the second place, there arises the question of moral hazard. The only reason that private investors are willing to purchase apparently inefficient public goods is because the state eliminates or reduces their exposure to risk. In the case of the London Underground, for example, the purchasing companies were assured that whatever happened they would be protected against serious loss—thereby undermining the classic economic case for privatization: that the profit motive encourages efficiency. The “hazard” in question is that the private sector, under such privileged conditions, will prove at least as inefficient as its public counterpart—while creaming off such profits as are to be made and charging losses to the state.

The third and perhaps most telling case against privatization is this. There can be no doubt that many of the goods and services that the state seeks to divest have been badly run: incompetently managed, underinvested, etc. Nevertheless, however badly run, postal services, railway networks, retirement homes, prisons, and other provisions targeted for privatization remain the responsibility of the public authorities. Even after they are sold, they cannot be left entirely to the vagaries of the market. They are inherently the sort of activity that someone has to regulate.

Breaking through to the other side: the music and publishing industries are dying. Music and writing will live on in new ways, and we’re living through the revolution.

My sister, Amy Friedman, is a brilliant writer who, like most artists I know who make their livings as artists, has managed to make her way by working her butt off doing a million different writerly things. She wrote a weekly column for the Kingston Weekly Standard, Canada’s oldest newspaper. In 1992 she began to write Tell Me a Story, which, on a weekly basis syndicated by Universal Press Syndicates, produces an “original story or a children’s classic accompanied by a captivating illustration that will launch the imagination.” She must now have written over a thousand of these stories. Two compilations of these stories have been published as books, Tell Me a Story and The Spectacular Gift. She personally produced 3 CD collections of these stories read by actors and backed by music composed specifically for each work. (You can buy them here, individually or as a 3 CD boxed set). Each one of the CDs has won numerous awards, and the most recent was the Winner of 2009 Parents Choice Gold Medal and 2009 NAPPA Gold Medal for story telling. John Wood of Kid Muzic wrote of the first CD: “The talent is first-rate from top to bottom. The stories literally jump off the CD and into the listener’s imagination – I love the choices on all levels! This is the real deal”

Amy has also written 2 works of non-fiction, Kick the Dog and Shoot the Cat and Nothing Sacred: A Conversation With Feminism. She continues to write and publish both fiction and nonfiction for newspapers, magazines and literary journals. She also performs her stories, often accompanied by musicians, in schools and at summer festivals. She is presently working on a novel, a collection of short stories and a television adaptation of Tell Me a Story. She’s a brilliant teacher of writing too.

In short, Amy is an artist, she works like hell at it, she produces brilliant work, and she has never, to put it mildly, been economically secure in the way, say, many of my law students expect to be.

So I took it very seriously when she sent me the following yesterday:

All the authors I know, every one of them, is freaking out. Celebrity books. No reviewers anywhere. Insane advances to celebrities leaving nothing left for others, no reviewers, too many reviewers, Kindle, celebrity books, the death of Editor and Publisher and Kirkus Reviews, all the authors I know are freaking out. If my memoir had gone to editors even three years ago, it would be sold by now. Everyone’s scared. Whaddya think? http://bit.ly/5O2CQI

I’m choosing not to freak out. I’m choosing to say, this too shall pass, and it will enliven the art world in some new way. (That’s my prayer, anyway)

In the article Amy linked to, Katharine Weber, a former National Book Critics Circle board of directors member, novelist and short story writer, details some of the changes wrought by the internet on book publishing and concludes, among other things, “That literary work will continue to lose value as it is seen even more as just another form of communication, rather than as a work of art with its own integrity.”

There are 2 important points I want to make here: (1) I do not write incessantly about copyright and the slippery notion of authorship as some ivory tower intellectual without strong connections to artists and art art of all sorts, and (2) I have a very personal stake in these questions. So this (with some slight edits) is what I wrote back to Amy yesterday:

Not freaking out is always the better choice. I can’t think of a situation in which freaking out adds value; in fact, I can’t think of a situation in which freaking out doesn’t considerably worsen the situation.

But the fact so many people are freaking out is, in my opinion, because we’re living through a frigging technological revolution. Come on, you remember your Marx. The stuff he was brilliant about: material and economic reality determine cultural reality. Cultural reality has an effect on material reality too. That’s why the experience of a cultural freakout is not a healthy thing. It leads to bad decisions. Had Jack Valenti and the entire film industry had their way, there would be no VHS machines, no CD and DVD burners, etc., etc. But it turned out that the VHS was the biggest financial boon the film industry had ever experienced.

The way we produce, copy, and disseminate information had entirely changed. Anyone sitting in a coffee shop can produce a document that looks as if it’s been typeset. (And I’m sure my students have no clue what typesetting is.) That document can be copied at virtually no cost, and disseminated world-wide at virtually no cost. So, guess what? The entire publishing industry as we’ve known it is a walking corpse. You can almost imagine the zombie image composed of parts of Sarah Palin, Oprah, Dan Brown, and Tiger Woods lumbering down Manhattan’s avenues.

What will result? I don’t know yet. But I strongly disagree with Katherine Weber’s statement that “literary work will continue to lose value as it is seen even more as just another form of communication, rather than as a work of art with its own integrity.” The idea that literary work is anything other than a vast cultural discussion is a relic of the Romantics.

And there will still be books bought. They’ll be read on electronic readers a lot and in codex form a lot – I’m pretty sure demand for the scroll and the inscribed tablet has vanished entirely. And there will be some illicit copying and distribution (that might not in the end result in a net loss to the author).

But sure, publishing houses and anyone who’s convinced her livelihood is dependent on publishing houses is freaking out. Let them. The recording industry once had a monopoly on producing and distributing recorded music. Now any kid can do it on his laptop. And musicians are still making money. The music industry will scream and scream that the internet is killing it, but that’s because the music industry’s ways of producing and distributing music over the past 100 years have as much relevance today as the horse and carriage industry’s ways of producing and distributing means of transportation had after the automobile became widely used.

As Mike Masnick at techdirt has written, a recent report by 2 British economists (pdf) demonstrates that “the UK music industry is actually growing. Let me repeat that: despite all of the whining and complaining about the state of the music industry, some of the music industry’s own economists are admitting that the market is growing. Not surprisingly, it found that retail product sales have declined, but the other parts of the industry have grown noticeably more than the decline in retail sales. This growth has come from a few sources. Live show attendance has increased more than retail sales have decreased. Consumers have actually spent more. On top of that, the business to business side of the industry (sponsorships, licensing, advertisements, etc.) has grown as well, opening up new and lucrative means of making money.”

Neither Masnick nor I would paint the present situation has some new technologically produced utopia — too much of the money in the music industry is going to touring artists from the ancient days of our youths, among other things. But the point he is making is that trying to pass laws and create digital locks and promote misleading propaganda is not going to recreate a model of producing and distributing recorded music that no longer makes any sense.

Something new is developing, there’s no stopping it, and the thrilling thing is that we are part of creating it.

If I had to bet, I suspect in the long run we’ll probably end up with fewer writers making too much money, and more making at least some.

But there’s been literature for what, at least 3000 years? The fall of the structure which produced and sold it in the 20th Century capitalist West won’t mean there won’t be great literature. There may be more. I really think so.

I bought and started re-reading Lewis Hyde’s Trickster Makes this World yesterday. The Trickster is the character who operates between realms, at doorways, through openings that others don’t cross either because they don’t see them or they’re afraid of what’s on the other side. (The intro to Hyde’s book is available as a pdf here — provided by Hyde himself.) And the trickster is the artist. If there’s ever been a doorway to a new reality in the world of literature, we’re facing it head on. Let’s break on through to the other side!

Steven Levitt and Freakonomics can go to hell!

On Veterans Day I expressed my disgust and contempt for Steven Levitt (he of Freakonomics fame) because his devotion to intellectual abstraction divorced from any connection to reality is, well, disgusting and contemptuous. The specific reason for my post on that day was Levitt’s proposition that a military draft, in his words, “puts the ‘wrong’ people in the military.”  Bob Herbert today expands on the point:

The idea that fewer than 1 percent of Americans are being called on to fight in Afghanistan and Iraq and that we’re sending them into combat again and again and again — for three tours, four tours, five tours, six tours — is obscene. All decent people should object. . . .

The reason it is so easy for the U.S. to declare wars, and to continue fighting year after year after year, is because so few Americans feel the actual pain of those wars. We’ve been fighting in Iraq and Afghanistan longer than we fought in World Wars I and II combined. If voters had to choose right now between instituting a draft or exiting Afghanistan and Iraq, the troops would be out of those two countries in a heartbeat.

I don’t think our current way of waging war, which is pretty easy-breezy for most citizens, is what the architects of America had in mind. Here’s George Washington’s view, for example: “It must be laid down as a primary position and the basis of our system, that every citizen who enjoys the protection of a free government owes not only a proportion of his property, but even his personal service to the defense of it.”

Honor our veterans and don’t efface their experience with ideology: Freakonomics & the draft.

My understanding is that “Freakanomics” is the application of economic thinking that oversimplifies human behavior to the analysis of actions that economics typically doesn’t address. The thinking goes that if people are always left free to make choices for themselves about what to do for themselves, society as a whole will be best off.

When will this idiocy end? Isn’t there some recognition somewhere that individuals making decisions that are best for them might in the aggregate hurt everyone? And when is a person really free to make a decision one way or another about whether, say, he can go to law school or he should enlist in the armed forces?

It’s Veterans Day. It’s always been a special day in my family. My father was a soldier and POW in WWII. WWII was a difficult war with an outcome that was not certain until very near the end (and even then it took a new and horrific weapon to finally end it). The U.S. and the Soviet Union won it. My father didn’t get drafted, but he enlisted because he was about to be drafted. The U.S. military was a genuine citizen’s force. My father was changed forever by the experience — mostly for the better, but it was by no means an experience he wished me to undergo in the absence of a very good reason.

I cannot help but be humbled on Veterans Day.

But Steven Levitt is much too clever for all of that. He’d tell my dad that people like him who were forced into the military in WWII were the “wrong people”! Given Mr. Levitt’s brilliance, it’s a wonder we won WWII and haven’t won wars in Iraq and Afghanistan that we’ve now fought 2 and 4 years longer, respectively, than we fought WWII:

The idea that a draft presents a reasonable solution is completely backwards. First, it puts the “wrong” people in the military — people who are either uninterested in a military life, not well equipped for one, or who put a very high value on doing something else. From an economic perspective, those are all decent reasons for not wanting to be in the military. (I understand that there are other perspectives — for example, a sense of debt or duty to one’s country — but if a person feels that way, it will be factored into his or her interest in military life.)

One thing markets are good at is allocating people to tasks. They accomplish this through wages. As such, we should pay U.S. soldiers a fair wage to compensate them for the risks they take! A draft is essentially a large, very concentrated tax on those who are drafted. Economic theory tells us that is an extremely inefficient way to accomplish our goal.

When ideas replace the lessons of experience, we dishonor those who have undergone the experience.

Preaching to the converted or trying to convince the unconvinced? They’re very different activities, and the former may well undermine the latter.

One does not persuade the undecided by means of name-calling and comparing oneself to the oppressed — one persuades the undecided with reasoned argument.

I’m not talking about healthcare — I’m talking about copyright and music again.

Ten days ago, a federal court granted Veoh’s motion for summary judgment and dismissed Universal Music Group’s (“UMG”) lawsuit alleging that Veoh, which, like YouTube, allows users to share videos free of charge, for contributing to and inducing copyright infringement as a result of the uploading by Veoh users of copyrighted videos. A copy of the decision is available here.

The court concluded that Veoh’s efforts and policies to limit incidents of infringement and to work diligently to keep infringing works off its website satisfy the “safe harbor provisions” that shield it from liability under the Digital Millennium Copyright Act (the “DMCA”). I am no expert on the DMCA’s safe harbor provisions (an FAQ on those provisions is available here), but the decision strikes me as a rather thorough exploration of the legal issues and of the evidence. Moreover, some of UMG’s arguments are downright specious, including what the court characterizes as its “first.” Typically — in fact, universally among effective lawyers — a lawyer makes his client’s strongest argument first.

UMG’s first argument was that  Veoh is not entitled to the safe harbor protections of the DMCA because it had “actual knowledge” that Veoh knew there were copyrighted videos on its website. UMG “proof” Veoh’s actual knowledge was that Veoh “knew that it was hosting an entire category of content—music—that was subject to copyright protection.” Slip op. at 14. The proof was hardly sufficient to the court, for reasons that seem, to me, persuasive:

First, the mere fact that Veoh was hosting material contributed by users that could be infringing cannot be proof of “actual knowledge” that there are infringing materials on the service because otherwise there would be no purpose to the safe harbor Congress created in the DMCA. “[V]ast portions of content on the internet are eligible for copyright protection (including plenty of materials posted on this site). Id. If one held providers like mine liable for allowing the use of materials by its users that could, if used improperly, be infringing, the internet as we know it would end.

In addition, it is unreasonable to interpret the DMCA to permit such proof to establish “actual knowledge” of infringement because if one were to accept UMG’s theory the DMCA’s notice-and-takedown provisions would be “completely superfluous because any service provider that hosted copyrighted material would be disqualified from the section . . . safe harbor regardless of whether the copyright holder gave notice or whether the service provider otherwise acquired actual or constructive knowledge of specific infringements.” Courts will typically interpret statutes so that their interpretations will not make other parts of the statute meaningless. If Congress intended to create the notice-and-takedown procedures in one part of the statute, it wouldn’t be reasonable to interpret another part of the statute to make them meaningless.

Moreover, UMG made arguments that were refuted by the evidence, including the argument that “Veoh, of course, knew that it never had a license from any major music company to display music content and thus knew that all such content was unauthorized.” Id. (emphasis added) Unfortunately for UMG, its own evidence showed that “[a]mong the types of videos subject to copyright protection but lawfully available on Veoh’s system were videos with music created by users and videos that Veoh provided pursuant to arrangements it reached with major copyright holders, such as SonyBMG.”

Let me be clear — I have not researched the takedown-and-notice provisions of the DMCA to the degree that would make me feel reasonably certain that the court was correct in the decision it reached, but I am certainly persuaded by the reasoning it set forth in its opinion (and what I do know about those provisions) to be well along the way to that conclusion. I am, however, quite open to being convinced by those who would argue otherwise.

I am not convinced at all, however, by Chris Castle (a self-described journalist in the media and communications fields), who’s “first observations” about the decision consist entirely of name-calling, far-fetched analogies, and arguments I know are unfounded. He titles his post “Gideon’s Remix” and explains that he is comparing “independent artists and songwriters” hurt by the court’s decision to the defendant in Gideon v. Wainwright, the landmark Supreme Court decision that established the right of criminal defendants to legal representation in their criminal proceedings. The defendant in Gideon had been sentenced to five years in prison for allegedly stealing about $55 and a few bottles of beer from a pool room. He had been forced, due to his inability to afford a lawyer, to defend himself against the charges.

You better have some evidence of real hardship before you start comparing “independent artists and songwriters” to Clarence Earl Gideon, and you better realize that there is a world of difference between losing your freedom for 5 years and not being entitled to deny the opportunity for current technology to do the myriad of legitimate and enormously beneficial things it does.

Castle next writes that “[i]f the decision [is allowed] to stand, copyright becomes a Constitutional right without a remedy.” That’s odd. The law provides plenty of remedies for copyright infringement, including statutory awards that do not even require evidence that establishes any financial harm arising from the infringement.

I think Castle’s reasoning that Veoh’s activities allow infringement without a remedy might be illuminated by 2 other assertions he makes. First, he suggests that copyright infringement is no different than the theft of personal or real property:

And why limit the decision to the online world–why not extend the notice and shakedown concept to the physical world, too? Why not apply it to cars, or homes, or personal property generally? Why not make our offline economy into one big squat?

This argument is just plain silly. If someone steals a car, the damage is obvious — the owner no longer has the car to use or sell. If someone squats in an apartment you own, that’s property you cannot rent to someone else. But the fact that someone might have improperly posted a copyrighted song on Veoh doesn’t eliminate the fact that the vast majority of videos posted on Veoh are not infringing and are beneficial to Veoh’s users. Moreover, the “independent artists and songwriters” whose “property” is allegedly being misused have the legal power to stop the misuse, the right to sue the infringing Veoh user for damages (without showing harm), and the possession of the thing itself allegedly “stolen.”

Castle states too that leaving the recording companies (and the “independent artists and songwriters” he seems to equate to UMG) to find infringing materials is too great a burden to expect of them:

It seems an entirely unreasonable burden to force independent artists, songwriters, unions, directors, writers, record companies and film studios to search the Internet 24 hours a day, 7 days a week to find infringing copies of works that have not been licensed or approved for use.

I’m not convinced it is an unreasonable burden. It’s easy for me to find online any reference to me or my writings. And it may well be reasonable to impose that burden on me and all those “independent artists” (one might forget UMG was the plaintiff in the lawsuit) in exchange for the benefit of having sites like YouTube and Veoh and the like. Most importantly, the decision on whether, given the benefits provided to society by requiring copyright holders to send takedown notices to services like Veoh (rather than imposing on Veoh the burden of pre-clearing everything posted on its service) is a decision Congress made. If Castle thinks it was a bad judgment, his beef is with Congress, not the court that decided the Veoh case.

Castle also dismisses as a “canard” without any suggestion that there are merits to it the argument that the fair use of copyrighted materials on which a lot of the value on blogs, hosting sites, and search engines is grounded in the constitutional right to free speech. The plain fact is that copyright is a limitation on free speech — without the rights accorded for a limited time and for limited purposes to copyrighted materials, their use would be constitutionally protected by the First Amendment. Thus, the rights accorded by copyright necessarily must be balanced against free speech rights, and this principle is one that is no “canard” — it is well- and long-established as the basis of fair use.

Finally, Castle resorts to name calling. He calls Google “childish” for re-posting videos that it has removed the soundtrack from — something that as far as I can tell is a perfectly legitimate response to a legitimate takedown notice from the owner of the copyright in the soundtrack. He also calls Lawrence Lessig “creepy,” which I suppose is a step up from another post in which he calls Lessig “Lyndon Larouche.”

Again, though, you only gratify those who already believe Lessig is a creepy fascist by tossing around names like that, and anyone who does not already find glee in such ignorance will at best be unpersuaded; more likely, they’ll be turned off.

So is Veoh correctly decided? Castle has only made me feel more strongly that it was. But I remain open to reason.

Paris Hilton as law professor: each judge is your BFF, and remedies are everything.

Knowing the law and being a lawyer are two entirely different things. If something is illegal, does that mean you can’t do it? That would mean you can’t drive 26 mph in a 25 mph zone. In other words, it’s not about whether something is legal or illegal; it’s about consequences, remedies. If you’re in breach of contract, it doesn’t matter much if the party suing you doesn’t have proof that your failure to live up to your promise actually caused the harm you’re thinking of.

Paris Hilton understands that. She also understands how to get a judge on her side. As Law.com reports, “Hilton flirted with a Miami federal judge and mentioned her Zodiac sign as she testified Friday in a civil trial seeking the full production cost of the box office bomb “Pledge This!” for allegedly scanty promotional work.” The plaintiff in the case is “Worldwide Entertainment Group, which was seized by federal regulators as a Ponzi scheme after producing Hilton’s 2006 movie.” Hilton is arguing that she fulfilled all her contractual obligations to promote the film and that her schedule is booked months in advance. To illustrate, she explained that last week she was filming her new reality show, “My New BFF,” in Dubai. “This prompted Moreno to ask what ‘BFF’ stood for. Hilton explained the acronym is short for ‘best friend forever’ and added, ‘You’re my best judge forever.’ Spectators applauded.”

Hilton’s lawyer is arguing not only that she fulfilled her contractual obligations, but also that even if she didn’t the World Wide Entertainment can’t show her failure to do so is the reason the film only made $2.9 million in theatrical release. The judge, apparently won over by Paris, seemed open to that argument — “Moreno said even if he finds Hilton could have done more to boost the movie, he doesn’t know how he can translate that into damages. ‘I know even some of the greatest actors flopped in the movies economically,’ he said.”

Think for a moment whether you can imagine Socrates saying, “Let’s stop talking and go play; we all know you can learn as much about a person in an hour of play as in a year of conversation.”

One of Sarah Palin’s favorite rhetorical moves is the maxim. She resorts again and again to brief sayings she intends to be pithy and apt. Just off the top of my head on Friday I remember her mentioning that only dead fish go with the flow and that, as her parents’ refrigerator stated, your friends don’t need explanations and your enemies won’t believe them.

She often too attributes the maxim she is quoting to some authority or other. One danger in doing this type of thing, especially if you do so without having done more than cursory research or are speaking off the top of your head, is attribution to the wrong source. When she stated that General McArthur had said, “We’re not retreating, we are advancing in a different direction,” she apparently was quoting  General Lewis B. “Chesty” Puller, not Douglas McArthur. Of course, Puller isn’t known to her audience (nor to me or, likely, to her), so the quote would not pack the same impact if properly attributed.

The bigger problem, though, is the credibility lost due to improper attribution. But there’s even more danger. You can look just plain stupid. In her Runner’s World interview last week, she said, “We like to have other people participate in these activities with us because, as Plato said, ‘You learn more about a person in an hour of play than in a year of conversation.’” The Weekly Standard (in a post actually entitled “The Philosopher Queen” and now mysteriously gone from its web site(Google cached version), blogged on Wednesday, June 29th: “Sarah Palin mentions a (perhaps apocryphal) quote fromPlat0 in her fascinating interview with Runner’s World.”

Perhaps apocryphal? Could anyone who thinks about Plato for one minute doubt the quote does not come from Plato? Plato’s entire corpus is in dialogue form. His version of Socrates is the foundation of Western philosophy. How is Socrates always portrayed? In conversation. Could you imagine Socrates and Plato suggesting that the dialogues Socrates engaged in should be broken up for some play because “you learn more about a person in an hour of play than in a year of conversation”? It’s ridiculous. It’s ridiculous to even think so, and it betrays nothing but thoughtlessness.

Melissa Harris Lacewell on Empathy, its importance to social cohesion, and more on its importance to good judging.

Wisdom from Melissa Harris Lacewell on the centrality of empathy in creating a United States:

[W]e are participants in a nation only to the extent that we imagine ourselves to be part of a community or a “people.” Empathy is an important part of what allows us to engage in that imagined sense of linked fate, shared identity, and common purpose. Without empathy we cannot enter into a social contract whereby we are willing to subjugate some of our selfish impulses in order to abide by the rule of law and the dictates of a civil society.  

As Laura E. Little points out in “Adjudication and Emotion,” 3 Florida Coastal Law Journal, 205, 210 ( 2002)  , “Empathy . . . may actually facilitate the process of understanding competing points of view so necesssary to quality adjudication. As Judge Richard Posner argues, empathy enables a judge to integrate into her decsionmaking remote human interests that are not immediately before the judge, but are possibly affectetd substantially by the judge’s decsions. Posner praises empathy for its cognitive character, suggesting that the emotion more likely reflects an evaluation of beliefs, rather than an ungrounded emotional reaction that short-circuits reasoning.” [Citing Richard Posner, “Emotions versus Emotionalism in Law,” The Passions of Law (Susan A. Bandes, ed. 1999).

I think we should shoot puppies!

There — that headline should ensure I never can be confirmed for federal office.

Dawn Johnsen, a law professor at the University of Indiana, is President Obama’s nominee to head the Justice Department’s Office of Legal Counsel, which ” provides authoritative legal advice to the President and all the Executive Branch agencies.”  It’s the office that produced the “torture memos,” those shockingly ill-reasoned legal fig-leafs for the Bush administration’s policies regarding the treatment of “detainees in the War on Terror.” Ms. Johnsen was an “unsparing critic” of those memos.  As a result, Senate Republicans are threatening to filibuster her nomination.  But that’s not the reason they are expressing.  What is their pretext?  Twenty years ago in a footnote of a brief she wrote in a lawsuit in which she represented the National Abortion Rights Action League, she wrote that “forcing a woman to bear a child when she had no desire to do so was ‘disturbingly suggestive of involuntary servitude.’” Thus, the Republicans threatening filibuster say, she has “equated abortion with slavery” and is therefore unqualified to fill those posts once occupied by John Yoo and Jay Bybee (currently a tenured law professor and a federal court of appeals judge, respectively), who purported to provide legal justification for the waterboarding and beatings of U.S. prisoners.  (The torture, of course, ensured that we can never bring the terrorists subject to it to justice since no U.S. court would ever consider the evidence obtained by torture reliable enough to convict those terrorists.)

The Republicans are also threatening to do all they can to block the nomination of Harold Koh to be legal counsel to the State Department.  Koh is the dean of Yale Law School.  Why is he unqualified to fill the job he’s nominated for?  Because, purportedly, he thinks “Sharia law could apply to disputes in U.S. courts.” This stuff is actually taken seriously. Even though none of it is true.

I’m flabbergasted.  Effective persuasion and argument require being open to all sorts of ideas, but it also requires constraints — one cannot persuade with unpersuasive arguments.  But whether justifying torture or opposing perfectly reasonable people who happened to oppose the justification of torture, there seems to be a remarkable willingness to rely on the hope that whatever one says, no matter how empty or absurd, will have an impact.  It reminds me of the “Obama pals around with terrorists” line.  Since he had professional connections with Bill Ayers 30 years after Ayers’ days in the Weather Underground, we were supposed to imagine Obama hangs out on his off days with his friends from Al-Qaeda.  I would expect the U.S. Senate could have as much sense as the entire electorate demonstrated last November in rejecting those ridiculous arguments.  So far, it seems, I’m wrong about the Senate.

Best bonds: AIG? Greatest Fascist Dictator: Adolf Hitler? Best Law School: ?????

What is it with the human thirst for numerical rankings, for judging one thing better than another even when the comparisons are known to be completely arbitrary or, at best, based on judgments so subjective regarding criteria so limited as to render the rankings nothing more than crude subjective judgments disguised as hard data?

Woody Allen fittingly complained:

What’s with all these awards? They’re always giving out awards. Best Fascist Dictator: Adolf Hitler.

But it’s not just the thirst for the rankings.  It’s basing one’s actions on rankings as if they have profound meaning despite their lack of meaning.

As I wrote recently, US News and World Report’s rankings of law schools are determined largely by the LSAT scores and undergraduate grade point averages of the students each law school admits even though those scores and averages bear no correlation to success as a lawyer; rather, they correlate only to success in law school, which, again, bears no meaningful correlation to success as a lawyer (as would not surprise most lawyers but, I would guess, would surprise most non-lawyers, including law students and law professors who have not practiced extensively).

Yet an overwhelming number of law applicants rely on the US News rankings.  Even more depressingly, an overwhelming number of law faculties make their educational decisions to improve those rankings, not to improve the way they educate law students to be lawyers. (As I also pointed out, Detroit Mercy, where I am currently a visiting professor and where I will continue in that capacity next year while remaining on leave from Case Western Reserve, is a rare exception to this rule.)

And today, reading in the New York Times about Moody’s, I realized another reason the US News rankings are so useless and their importance so poisonous to legal education.  It is because the US News rankings are accepted, followed, and never questioned in a way meaningful enough to threaten their influence. There is therefore little incentive to make judgments on a law school’s quality based on judgments independent of those rankings.

Moody’s is one of the private companies that rate corporate bonds.  When a corporation sells bonds to raise money (simply put, they borrow money from the purchasers of the bonds and pay back the loan at the interest rate called for by the bond), Moody’s issues “grades” to the bonds that predict the likelihood the corporation will pay back the loan.  “Junk” bonds are so-called because they are bonds issued by companies that are at high risk of being unable to pay the purchaser of the bond when payment is due.  In other words, junk bonds are “sub-prime” bonds.  Why do people loan money to companies or homeowners despite the high risk the borrowers will default?  Because those borrowers have to pay a higher interest rate.  The high interest rate on the loans that are repaid makes up for the loans that aren’t paid back.

The unconscionable innacuracy of Moody’s rankings, however, has played a major role in our financial crisis.  As the Times points out:

Moody’s rated Lehman Brothers’ debt A2, putting it squarely in the investment-grade range, days before the company filed for bankruptcy. And Moody’s gave the senior unsecured debt of the American International Group, the insurance behemoth, an Aa3 rating – which is even stronger than A2 – the week before the government had to step in and take over the company in September as part of what has become a $170 billion bailout.

Moody’s and the other major ratings companies also “put their seals of approval on countless subprime mortgage-related securities now commonly described as toxic.”

There are numerous reasons to the ratings companies were bound to fail, but the Times article brought up an interesting one I had never considered before.  There is little incentive to question anyone who is paid to judge the the quality of something unless and until the accuracy of those judgments is put to the test. As Frank Psrtnoy, a law professor at the Universitiy of San Diego and a former derivatives trader, explains it:

Imagine if you had a rabbi and said, “All the laws of kosher depend on whether this rabbi decides if food is kosher or not.”  If the rules say “You have to use this rabbi,”  he could be totally wrong and it won’t affect the value of his franchise.

In other words, if you wanted kosher food, you’d buy food approved by that rabbi and never question his judgment unless and until the accuracy of his judgments was threatened in a meaningful way. US News is that rabbi.  It has become the principal judge of law school quality and it doesn’t matter whether its judgments are legitimate or not.  Students buy its rankings guides, law faculties and deans make decisions driven solely by the desire to meet the criteria US News employs, and applicants and legal academia continue to make their educational decisions based on the criteria employed by US News rather than on their own judgments.

It’s a terrible situation, and particularly ironic when it comes to legal education.  Lawyers every day, every moment, make judgments and decisions based on incomplete, subjective, and biased information.  You can only consider the circumstances under which those decisions are made inadequate, however, if you believe it is ever possible to have all the information you would want and if all that information could be stripped of the distortions inherent in the limitations of human perception.  Making decisions based on incomplete, subjective, and biased information is what life is about. That doesn’t mean there aren’t better and worse judgments; it merely means that one can never be certain, that there is always risk, that almost every important decision one makes in one’s life cannot be reduced to a choice between black and white, right and wrong, #1 and #2.  Lawyers make their living making such difficult decisions and judgments.  The legal situations where there are clear answers don’t require lawyers, and if lawyers become involved they certainly don’t make much of a living answering those questions.

Yet law school applicants and law professors act as if the judgment that one law school is better than another can be reduced to a comparison of hard numbers, and that, therefore, those numbers should be the determinant of their actions.  They’re being as stupid as the investors in Lehman Brothers and AIG were in relying on Moody’s.

And the Times article mentions one other fact that bears on this point.  Warren Buffett — the man “known as the Oracle of Omaha,” the daddy we turn to to guide us out of our financial pit, “the closest thing that the United States economy has to a life coach”  — owns 20% of Moody’s.  But you know what?  In making his investment decsions he doesn’t rely at all on Moody’s ratings.  He has his own research department.  He makes his own judgments.  I wish more college graduates did the same.  And it maddens me beyond measure that most law professors don’t.

Hard cases make GOOD law.

The U.S. Supreme Court ruled today that Wyeth is liable to Diana Levine (pdf) for $7 million, the amount (reduced from $7.4 million by the judge) that a Vermont jury had awarded her (and that the Vermont Supreme Court had affirmed) based on the jury’s conclusion that Wyeth had been negligent under Vermont tort law in failing to provide a strong enough warning against intravenous injection of the drug Phenergan. As a result of being injected with Phenergan, an anti-nausea drug manufactured by Wyeth, Levine’s right arm had to be amputated. Wyeth’s warning warning regarding the safety of injecting Phenergan stated:

When administering any irritant drug intravenously, it is usually preferable to inject it through the tubing of an intravenous infusion set that is known to be functioning satisfactorily.

As Justice Stevens observed in his majority opinion, “The evidence presented during the 5-day jury trial showed that the risk of intra-arterial injection . . . can be almost entirely eliminated” by administering the drug by IV rather than by injection. The jury concluded “Wyeth was negligent, that Phenergan was a defective product as a result of inadequate warnings and instructions, and that no intervening cause had brokenthe causal connection between the product defects and the plaintiff’s injury.”

The principal argument Wyeth made is that since the warnings it provided along with the drug were in compliance with the FDA’s requirements, the Court should have concluded that there can be no enforceable state law that requires stricter requirements. The argument would mean that as long as Wyeth had satisfied the FDA it had done everything right, no one could sue Wyeth, not even if, as the jury in Levine’s case concluded, Wyeth had been negligent and that negligence had caused the loss of Levine’s arm. In legalese, this argument is that the Federal regulation of these warnings “preempts” any state regulations on the same subject.

Whether federal law preempts state law turns on whether, in the Court’s opinion, Congress intended the federal law to do so. As Justice Stevens explains, there is good reason to believe Congress intended state tort law to supplement FDA regulation of drug safety, and there is very good reason that should be the case. Over the decades Congress has enacted laws governing the FDA, it has made clear its understanding federal regulation of drugs has needs to be supplemented by state tort law. Nevertheless, Congress has sometimes intended certain FDA regulations to preempt state law — on those occasions Congress expressly so stated in the legislation regarding those regulations. Thus, it is reasonable to conclude that congressional silence on preemption in the legislation at issue in Levine’s case indicates no intent to preempt.

Moreover, it would be foolish to shift exclusive responsibility for all responsibility for drug safety to the FDA. The FDA does not have the resources to make all determinations necessary to maintain drug safety. The drug makers do. Without state tort liability, the drug companies would be absolved of any responsibility for the safety of drug labeling. Thus, Stevens points out that

Wyeth suggests that the FDA, rather than the manufacturer, bears primary responsibility for drug labeling. Yet through many amendments to the FDCA and to FDA regulations, it has remained a central premise of federal drug regulation that the manufacturer bears responsibility for the content of its label at all times.

Stevens even points out that the FDA has traditionally been in favor of having state law complement their own regulation of drug safety:

The FDA traditionally regarded state law as a complementary form of drug regulation. The FDA has limited resources to monitor the 11,000 drugs on the market, and manufacturers have superior access to information about their drugs, especially in the postmarketing phase as new risks emerge.

The dissenting opinion, written by Justice Alito on behalf of himself, Chief Justice Roberts, and Justice Scalia, opened with a variation on one of my most hated legal clichés — “Hard cases make bad law.” Alito’s cute variation? “This case illustrates that tragic facts make bad law.”

Why do I hate this sentiment? As I’ve written before, the ultimate point of our justice system is to do justice. The cliché that “hard cases make bad law” expresses the idea that one harms the law if one goes out of one’s way to interpret it in favor of someone you know should, if real justice rather than law applied, prevail. The jury concluded that Wyeth should have given a stronger warning against injection of Phenergan and that it’s failure to do so caused Levine to lose her arm. Those determinations could not have been overturned by the Supreme Court — they are the type of determinations left to the jury who saw the evidence. So, in the absence of explicit Congressional statements that the statute is intended to preempt state law and thus shield Wyeth from any liability, justice would seem to require  Wyeth to be responsible for the harm its negligence caused to Levine.

Since the dissenters concluded the law requires otherwise, they believe, despite their stated sympathy for Levine’s “tragedy,” that the Court’s hands have been tied and, sadly, it must find that Levine is not entitled to sue Wyeth.

Typically, as in this case, such reasoning rejects perfectly reasonable reasons to find that the “tragic victim” should prevail. Thus, it seems, typically when a court hauls out that old “hard cases” line, it is really not acting in the interests of either law or justice, but, rather in the service of a cause that remains largely hidden.

That cause, in this case, is the conservative campaign against state tort lawsuits (in the name of “tort reform”).

Why do we have such safe drugs? Such high standards in the quality of our medical care? Cars enormously safer now than just a couple of decades ago?

Because the people and organizations most responsible for that safety and most capable of maintaining it are held responsible if they don’t provide for that safety. Tort regulation isn’t perfect, but it’s a lot better than governmental regulation alone. (No regulation at all, of course, would lead to drugs we could have no confidence in.)

But Alito, Steven, and Scalia are clearly acting in the service of the interests that would get rid of state tort suits — in this case, the pharmaceutical industry. This case isn’t a result of the majority’s effort to make people happy for Levine; it’s a case that both does justice to her and is consistent with existing law and sound national policy that Stevens has persuasively explained. Alito isn’t sorry that Levine lost her arm. He’s sorry Wyeth can be sued for its negligence.

Rhetoric, hot air, and powerful speech

Charlotte Higgins in the Guardian writes about Barak Obama’s power as a speaker and its connections to ancient oratory, Obama’s training as a lawyer, and the connections between writing and speaking:

There have been many controversial aspects to this presidential election, but one thing is uncontroversial: that Obama’s skill as an orator has been one of the most important factors – perhaps the most important factor – in his victory. The sheer numbers of people who have heard him speak live set him apart from his rivals – and, indeed, recall the politics of ancient Athens, where the public speech given to ordinary voters was the motor of politics, and where the art of rhetoric matured alongside democracy.

Obama has bucked the trend of recent presidents – not excluding Bill Clinton – for dumbing down speeches. . . .Though he has speechwriters, he does much of the work himself. (Jon Favreau, the 27-year-old who heads Obama’s speechwriting team, has said that his job is like being “Ted Williams’s batting coach.”) . . .

More than once, the adjective that has been deployed to describe Obama’s oratorical skill is “Ciceronian”. Cicero, the outstanding Roman politician of the late republic, was certainly the greatest orator of his time, and one of the greatest in history. A fierce defender of the republican constitution, his criticism of Mark Antony got him murdered in 43BC.

During the Roman republic (and in ancient Athens) politics was oratory. In Athens, questions such as whether or not to declare war on an enemy state were decided by the entire electorate (or however many bothered to turn up) in open debate. Oratory was the supreme political skill, on whose mastery power depended. Unsurprisingly, then, oratory was highly organised and rigorously analysed. The Greeks and Romans, in short, knew all the rhetorical tricks, and they put a name to most of them.

It turns out that Obama knows them, too. One of the best known of Cicero’s techniques is his use of series of three to emphasise points: the tricolon. (The most enduring example of a Latin tricolon is not Cicero’s, but Caesar’s “Veni, vidi, vici” – I came, I saw, I conquered.) Obama uses tricola freely. Here’s an example: “Tonight, we gather to affirm the greatness of our nation, not because of the height of our skyscrapers, or the power of our military, or the size of our economy …” In this passage, from the 2004 Democratic convention speech, Obama is also using the technique of “praeteritio” – drawing attention to a subject by not discussing it. (He is discounting the height of America’s skyscrapers etc, but in so doing reminds us of their importance.)

One of my favourites among Obama’s tricks was his use of the phrase “a young preacher from Georgia”, when accepting the Democratic nomination this August; he did not name Martin Luther King. The term for the technique is “antonomasia”. One example from Cicero is the way he refers to Phoenix, Achilles’ mentor in the Iliad, as “senior magister” – “the aged teacher”. In both cases, it sets up an intimacy between speaker and audience, the flattering idea that we all know what we are talking about without need for further exposition. It humanises the character – King was just an ordinary young man, once. Referring to Georgia by name localises the reference – Obama likes to use the specifics to American place to ground the winged sweep of his rhetoric – just as in his November 4 speech: “Our campaign … began in the backyards of Des Moines and the living rooms of Concord and the front porches of Charleston”, which, of course, is also another tricolon. . . .

It is not just in the intricacies of speechifying that Obama recalls Cicero. Like Cicero, Obama is a lawyer. Like Cicero, Obama is a writer of enormous accomplishment – Dreams From My Father, Obama’s first book, will surely enter the American literary canon. Like Cicero, Obama is a “novus homo” – the Latin phrase means “new man” in the sense of self-made. Like Cicero, Obama entered politics without family backing (compare Clinton) or a military record (compare John McCain). Roman tradition dictated you had both. The compensatory talent Obama shares with Cicero, says Catherine Steel, professor of classics at the University of Glasgow, is a skill at “setting up a genealogy of forebears – not biological forebears but intellectual forebears. For Cicero it was Licinius Crassus, Scipio Aemilianus and Cato the Elder. For Obama it is Lincoln, Roosevelt and King.”

Steel also points out how Obama’s oratory conforms to the tripartite ideal laid down by Aristotle, who stated that good rhetoric should consist of pathos, logos and ethos – emotion, argument and character. . . .

In English, when we use the word “rhetoric”, it is generally preceded by the word “empty”. Rhetoric has a bad reputation. McCain warned lest an electorate be “deceived by an eloquent but empty call for change”. Waspishly, Clinton noted, “You campaign in poetry, you govern in prose.” The Athenians, too, knew the dangers of a populace’s being swept along by a persuasive but unscrupulous demagogue (and they invented the word). And it was the Roman politician Cato – though it could have been McCain – who said “Rem tene, verba sequentur”. If you hold on to the facts, the words will follow.

Cicero was well aware of the problem. In his book On The Orator, he argues that real eloquence can be acquired only if the speaker has attained the highest state of knowledge – “otherwise what he says is just an empty and ridiculous swirl of verbiage”. The true orator is one whose practice of citizenship embodies a civic ideal – whose rhetoric, far from empty, is the deliberate, rational, careful organiser of ideas and argument that propels the state forward safely and wisely. This is clearly what Obama, too, is aiming to embody: his project is to unite rhetoric, thought and action in a new politics that eschews narrow bipartisanship. Can Obama’s words translate into deeds? The presidency of George Bush provided plenty of evidence that a man who has problems with his prepositions may also struggle to govern well. We can only hope that Obama’s presidency proves that opposite.

One of the most impressive and useful things to me about Obama’s speeches is his ability to unite his rhetorical moves (like the use of anaphora and epiphora noted in the Higgins’ article) to very powerful themes.

The most notable example of this to me was his 2004 Convention speech — the part about there not being a “Red or Blue America,” but, rather, “a United States of America,” etc. That speech, in addition to employing numerous rhetorical flourishes, employed them all to further the idea we who grew up in the U.S. have all grown up with: e pluribus unum; out of many, one. To me, that idea — that we are a united country precisely because we recognize and respect our vast differences — has always been one of the best things of what it means to be a U.S. citizen.

Sometimes I think that when we talk about rhetoric we focus on the devices at the price of the content we mean them to convey. I always think the primary task is to identify a theme or themes the speaker/writer wants to convey — then one can use the devices to further that theme. Without the theme, the devices really are just empty rhetoric.