You convince people by confirming that what they believe about the world is true.

One of the most difficult things to convince law students of is that law is not merely the application of law to facts. Students start out believing that learning law is learning the rules that will answer whatever questions arise. Some students never get past that idea. The ones who become good lawyers do.

There are instances in which there are clear rules that are easy to apply. But if that were the whole of the law, we wouldn’t need lawyers, and law students certainly wouldn’t have to pay $45,000 a year for three years to earn a law degree.

Instead, convincing someone that your view of the law is the correct one requires not only finding and applying the correct rule but also in convincing whomever you are trying to convince that the rule and your interpretation of it make sense, are just, are convincing at a gut level. If you can’t do that, you’ll never become a good lawyer.

An inability to get over the stumbling block posed by the desire for a legal system consisting of clear rules that answer every conceivable question, of course, is not confined to some law students. As Jon Krakauer explains in Under the Banner of Heaven, “literalism” — the conviction that there are rules set forth in hallowed texts (which need not be religious, as strains of constitutional “originalism” demonstrate) that answer all the important questions one encounters makes people resistant to the idea that answering the tough questions requires a considerable amount of creativity, acknowledgement of ambiguity, and sensitivity to situational specifics:

For people . . . who view existence through the narrow lens of literalism, the language in certain select documents is assumed to possess extraordinary power. Such language is to be taken assiduously at face value, according to a single incontrovertible interpretation that makes no allowance for nuance, ambiguity, or situational contingencies. As Vincent Crapanzano observes in his book Serving the Word, [this] brand of literalism encourages a closed, usually (though not necessarily) politically conservative view of the world: one with a stop-time notion of history and a we-and-they approach to people, in which we are possessed of truth, virtue, and goodness and they of falsehood, depravity, and evil. It looks askance at figurative language, which, so long as its symbols and metaphors are vital, can open—promiscuously in the eyes of the strict literalist—the world and its imaginative possibilities.

Perhaps this is why literalism rarely carries long-term appeal in a functioning democracy. The majority cannot be convinced for very long without the use of force that there is good reason for elevating the particular hallowed text (much less the literalists particular reading of that text) above all other “reasons.”

I’m reminded of these things by the TED talk embedded below, in which Simon Sinek explains that success in realms as diverse as commerce, invention, and social change depend on making the why of what you do your principle focus.

Thus, in the commercial world, for example, people don’t buy what you do; they buy why you do it. Nevertheless, companies and people typically sell their product or services by explaining what they do and how they do it. They don’t typically even know why they do what they do, and they certainly don’t explain it well.

But the most successful people sell first and foremost why they do what they do. Apple, for example, explains they do what they do to challenge authority. They explain what they do as designing beautiful products that are easy to use. What do they do? They happen to sell computers. That message convinces buyers in ways the typical computer seller’s approach — (1) we sell computers, (2) we make them user friendly — does not.

Simek explains the phenomenon in market terms: the only way to get the majority of consumers to buy a new product or service is to first convince innovators and early adopters, and those people are only persuaded by the conviction they share the seller’s convictions.

But his message about the market is one applicable in all contexts in which one is trying to convince an audience:

People buy what they buy to confirm what they believe about the world.

Metaphors really do twist your mind.

Lawyers — especially those like me who write pieces of legal advocacy and teach others to do so as well — know well the power of words. So do politicians. Paul Ryan and the Republicans are proposing to replace Medicare (which supplies government-paid medical care for senior citizens) with a plan that instead provides money to senior citizens to buy their own private medical insurance on the open market. Their plan utterly destroys what Medicare is, but they describe it as one to “save Medicare, . . . to reform it so that it delivers the high quality we expect, at a price we can afford.” (emphasis added)

And taxes on wealth passed to those who didn’t earn the wealth are described as “death taxes.”

As I wrote above, however, lawyers are well-attuned to these tricks. Sometimes, therefore we underestimate their impacts. We see through the metaphorical frames our adversaries use.

But Psychology Today describes a study  vividly demonstrating the impact metaphors have on judgment by documenting the radically different proposed solutions college students proposed for urban crime depending on whether the crime was described as a “wild beast preying on” and “lurking” in the city or, instead, a “virus plaguing” the city:

Researchers Paul Thibodeau and Lera Boroditsky from Stanford University demonstrated how influential metaphors can be through a series of five experiments designed to tease apart the “why” and “when” of a metaphor’s power. First, the researchers asked 482 students to read one of two reports about crime in the City of Addison. Later, they had to suggest solutions for the problem. In the first report, crime was described as a “wild beast preying on the city” and “lurking in neighborhoods”.

After reading these words, 75% of the students put forward solutions that involved enforcement or punishment, such as building more jails or even calling in the military for help. Only 25% suggested social reforms such as fixing the economy, improving education or providing better health care. The second report was exactly the same, except it described crime as a “virus infecting the city” and “plaguing” communities. After reading this version, only 56% opted for great law enforcement, while 44% suggested social reforms.

Interestingly, very few of the participants realized how affected they were by the differing crime metaphors. When Thibodeau and Boroditsky asked the participants to identify which parts of the text had most influenced their decisions, the vast majority pointed to the crime statistics, not the language. Only 3% identified the metaphors as culprits. The researchers confirmed their results with more experiments that used the same reports without the vivid words. Even though they described crime as a beast or virus only once, they found the same trend as before.

Okay, no more Times New Roman. But then what?

It’s a week, I guess, to think about typefaces. I’m convinced now by Kendall Gray that I should no longer require my students to hand in their documents using Times New Roman as their font. In legal writing, the default move is typically the conventional move — I don’t want to offend my readers, and if the vast majority of people do something a certain way, I can be relatively confident that doing it that way won’t offend my readers.

But if there’s a better way of doing something that won’t offend my readers I’ll always opt for the better way of doing things. And, as Gray points out, as esteemed a judge as Judge Frank Easterbrook has stated that “[d]esktop publishing does not imply a license to use ugly or inappropriate type and formatting—and I assure you that Times New Roman is utterly inappropriate for long documents . . . . It is designed for narrow columns in newspapers, not for briefs.”

But I wish Gray hadn’t left me hanging, wondering what font I should choose. The flow chart I referred to the other day doesn’t give me an alternative for legal documents, and the nearest analog (a book), leads me to fonts that aren’t available in Word. I do know from Ruth Anne Robbins’ article, Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents, Journal of the Association of Legal Writing Directors, Vol. 2, p. 108, 2004 , that because at least some designers believe that serif fonts are easier to read when dealing with large amounts of text, it makes sense for attorneys to choose serif fonts for the body of their documents.” Id. at 127 (hyperlink added). Sans serif fonts, on the other hand, are “easier to read on computers, overheads, and the like.” Id. But Robbins concludes, for the text of legal documents, you should, “[g]iven the choice, use a proportionally spaced font such as Times New Roman or Garamond.” Id at 133.

So I’m back, waiting on the resolution to Gray’s cliffhanger. Any suggestions out there? Again, note that I want something that works. I am convinced that, as Robbins puts it, “[v]isual effects . . . are as critical an element of persuasion as proper grammar and adherence to the rules of court and citation form.” Id. at 111. But at the same time I’m operating in a field in which, Easterbrook notwithstanding, Times New Roman is the conventional font, and I don’t want my documents to stand out because of the font I use.

Lawyers need typefaces too.

I’ve said it before: lawyers must pay attention to everything, including typography:

using good typography is like dressing well for court, a way “we signal to clients, other attorneys, and judges that we take our work seriously and we take court seriously.” Moreover, bad typography detracts from your goal of persuading your audience your client is right. “When you show up to make an oral argument, you make sure that you present yourself as professionally and persuasively as possible. Similarly, your written documents should reflect the same level of attention to typography.”

And it’s not just typography in court documents we must worry about. There’s typography in presentations, on web sites, and in e-mail. Typography is everywhere. What do we do when we can’t afford a designer? How do we evaluate the designers we do encounter? From Inspiration Lab comes reference to Julian Hansen, who’s designed a poster depicting “a flowchart of the choices we go through choosing fonts, with a humorous approach.”

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).