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	<title>Ruling Imagination: Law and Creativity &#187; rhetoric</title>
	<atom:link href="http://blogs.geniocity.com/friedman/category/rhetoric/feed/" rel="self" type="application/rss+xml" />
	<link>http://blogs.geniocity.com/friedman</link>
	<description>The ways law rules creativity and creativity informs the practice of law</description>
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		<title>Father Coughlin&#8217;s Tea Party, 1939</title>
		<link>http://blogs.geniocity.com/friedman/2010/03/father-coughlins-tea-party-1939/</link>
		<comments>http://blogs.geniocity.com/friedman/2010/03/father-coughlins-tea-party-1939/#comments</comments>
		<pubDate>Fri, 05 Mar 2010 21:17:06 +0000</pubDate>
		<dc:creator>pfriedman</dc:creator>
				<category><![CDATA[propaganda]]></category>
		<category><![CDATA[rhetoric]]></category>
		<category><![CDATA[Father Coughlin]]></category>
		<category><![CDATA[Tea Party]]></category>

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		<title>We know the price of everything and the value of nothing.</title>
		<link>http://blogs.geniocity.com/friedman/2010/02/we-know-the-price-of-everything-and-the-value-of-nothing/</link>
		<comments>http://blogs.geniocity.com/friedman/2010/02/we-know-the-price-of-everything-and-the-value-of-nothing/#comments</comments>
		<pubDate>Tue, 02 Feb 2010 01:31:41 +0000</pubDate>
		<dc:creator>pfriedman</dc:creator>
				<category><![CDATA[Law as a reflection of its society]]></category>
		<category><![CDATA[rhetoric]]></category>
		<category><![CDATA[Alan Greenspan]]></category>
		<category><![CDATA[free markets]]></category>
		<category><![CDATA[Law and Economics]]></category>
		<category><![CDATA[Raj Patel]]></category>
		<category><![CDATA[unregulated free markets]]></category>

		<guid isPermaLink="false">http://blogs.geniocity.com/friedman/2010/02/we-know-the-price-of-everything-and-the-value-of-nothing/</guid>
		<description><![CDATA[A couple of weeks ago I quoted from Tony Judt&#8217;s critique of free market ideology. Raj Patel, in &#8220;How Free Market Delusions Destroyed the Economy,&#8221; 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 [...]]]></description>
			<content:encoded><![CDATA[<p><a href="http://blogs.geniocity.com/friedman/2010/01/are-free-markets-always-the-best-of-course-not-and-whered-we-get-that-idea/" target="_blank">A couple of weeks ago</a> I quoted from Tony Judt&#8217;s critique of free market ideology. <a href="http://rajpatel.org/" target="_blank">Raj Patel</a>, in &#8220;<a href="http://www.alternet.org/economy/144151/how_free-market_delusions_destroyed_the_economy_?page=entire" target="_blank">How Free Market Delusions Destroyed the Economy</a>,&#8221; goes into considerable depth about the stupidity of our faith in markets, but this brief point makes clear the wisdom underlying the entire article:</p>
<blockquote><p>There is a discrepancy between the price of something and its value, one that economists cannot fix, because it&#8217;s a problem inherent to the very idea of profit-driven prices. This gap is something about which we&#8217;ve got an uneasy and uncomfortable intuition. The uncertainty about prices is what makes the MasterCard ads amusing. You know how it goes &#8212; green fees: $240; lessons: $50; golf club: $110; having fun: priceless. The deeper joke, though, is this: The price of something doesn&#8217;t measure its value at all.</p></blockquote>
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		<title>Are free markets always the best? Of course not, and where&#8217;d we get that idea?</title>
		<link>http://blogs.geniocity.com/friedman/2010/01/are-free-markets-always-the-best-of-course-not-and-whered-we-get-that-idea/</link>
		<comments>http://blogs.geniocity.com/friedman/2010/01/are-free-markets-always-the-best-of-course-not-and-whered-we-get-that-idea/#comments</comments>
		<pubDate>Tue, 19 Jan 2010 11:31:37 +0000</pubDate>
		<dc:creator>pfriedman</dc:creator>
				<category><![CDATA[Law as a reflection of its society]]></category>
		<category><![CDATA[The evolution of law]]></category>
		<category><![CDATA[rhetoric]]></category>

		<guid isPermaLink="false">http://blogs.geniocity.com/friedman/2010/01/are-free-markets-always-the-best-of-course-not-and-whered-we-get-that-idea/</guid>
		<description><![CDATA[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 [...]]]></description>
			<content:encoded><![CDATA[<p>Ideas often trump reality, especially in law. In my career, <a href="http://en.wikipedia.org/wiki/Law_and_economics" target="_blank">Law and Economics</a>, 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&#8217;ve always thought, for a number of reasons, that the faith in &#8220;markets&#8221; on which Law and Economics is grounded is bunk. I&#8217;m plainly not alone. <a href="http://www.nybooks.com/articles/23519" target="_blank">Tony Judt writes</a>:</p>
<blockquote><p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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 &#8220;hazard&#8221; 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.</p>
<p>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.</p></blockquote>
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		<title>Breaking through to the other side: the music and publishing industries are dying. Music and writing will live on in new ways, and we&#8217;re living through the revolution.</title>
		<link>http://blogs.geniocity.com/friedman/2009/12/breaking-through-to-the-other-side-the-music-and-publishing-industries-are-dying-music-and-writing-will-live-on-in-new-ways-and-were-living-through-the-revolution/</link>
		<comments>http://blogs.geniocity.com/friedman/2009/12/breaking-through-to-the-other-side-the-music-and-publishing-industries-are-dying-music-and-writing-will-live-on-in-new-ways-and-were-living-through-the-revolution/#comments</comments>
		<pubDate>Wed, 23 Dec 2009 11:14:43 +0000</pubDate>
		<dc:creator>pfriedman</dc:creator>
				<category><![CDATA[Art & Money]]></category>
		<category><![CDATA[Law as a reflection of its society]]></category>
		<category><![CDATA[The evolution of law]]></category>
		<category><![CDATA[copyright and fair use]]></category>
		<category><![CDATA[creativity]]></category>
		<category><![CDATA[originality]]></category>
		<category><![CDATA[propaganda]]></category>
		<category><![CDATA[regulation]]></category>
		<category><![CDATA[rhetoric]]></category>
		<category><![CDATA[technology and law]]></category>

		<guid isPermaLink="false">http://blogs.geniocity.com/friedman/?p=2980</guid>
		<description><![CDATA[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&#8217;s oldest newspaper. In 1992 she began to [...]]]></description>
			<content:encoded><![CDATA[<p>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&#8217;s oldest newspaper. In 1992 she began to write<em> <a href="http://www.amuniversal.com/ups/features/tell_me_a_story/index.htm" target="_blank">Tell Me a Story</a></em>, which, on a weekly basis syndicated by Universal Press Syndicates, produces an &#8220;original story or a children&#8217;s classic accompanied by a captivating illustration that will launch the imagination.&#8221; She must now have written over a thousand of these stories. Two compilations of these stories have been published as books, <em>Tell Me a Story</em> and <em>The Spectacular Gift</em>. She personally produced 3 CD collections of these stories read by actors and backed by music composed specifically for each work. (<a href="http://www.mythsandtales.com/index.html" target="_blank">You can buy them here</a>, 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 <a href="http://kidmuzic.com/" target="_blank">Kid Muzic</a> wrote of the first CD: &#8220;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&#8221;</p>
<p>Amy has also written 2 works of non-fiction, <a href="http://kidmuzic.com/" target="_blank"><em>Kick the Dog and Shoot the Cat</em></a> and <em><a href="http://www.amazon.com/Nothing-Sacred-Conversation-Amy-Friedman/dp/0887509061" target="_blank">Nothing Sacred: A Conversation With Feminism</a>. </em>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&#8217;s a brilliant teacher of writing too.</p>
<p>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.</p>
<p>So I took it very seriously when she sent me the following yesterday:</p>
<blockquote><p>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&#8217;s scared. Whaddya think? <a href="http://bit.ly/5O2CQI" target="_blank">http://bit.ly/5O2CQI</a></p>
<p>I&#8217;m choosing not to freak out. I&#8217;m choosing to say, this too shall pass, and it will enliven the art world in some new way. (That&#8217;s my prayer, anyway)</p></blockquote>
<p>In <a href="http://bookcritics.org/blog/archive/guest_post_how_i_see_book_culture_evolving/" target="_blank">the article</a> Amy linked to, <a href="http://www.katharineweber.com/" target="_blank">Katharine Weber</a>, 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, &#8220;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.&#8221;</p>
<p>There are 2 important points I want to make here: (1) I do not write incessantly about <a href="http://blogs.geniocity.com/friedman/category/copyright-and-fair-use/" target="_blank">copyright</a> and <a href="http://blogs.geniocity.com/friedman/tag/authorship/" target="_blank">the slippery notion of authorship</a> 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:</p>
<blockquote><p>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.</p>
<p>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.</p>
<p>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&#8217;s been typeset. (And I&#8217;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.</p>
<p>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.</p>
<p>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).</p>
<p>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. <a href="http://blogs.geniocity.com/friedman/tag/girl-talk/" target="_blank">Now any kid can do it on his laptop.</a> And musicians are still making money. The music industry will scream and scream that the internet is killing it, but that&#8217;s because the music industry&#8217;s ways of producing and distributing music over the past 100 years have as much relevance today as the horse and carriage industry&#8217;s ways of producing and distributing means of transportation had after the automobile became widely used.</p>
<p><a href="http://www.techdirt.com/articles/20090723/0351345633.shtml" target="_blank">As Mike Masnick at techdirt</a> has written, <a href="http://www.prsformusic.com/creators/news/research/Documents/Will%20Page%20and%20Chris%20Carey%20%282009%29%20Adding%20Up%20The%20Music%20Industry%20for%202008.pdf" target="_blank">a recent report by 2 British economists</a> (pdf) demonstrates that &#8220;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&#8217;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.&#8221;</p>
<p>Neither Masnick nor I would paint the present situation has some new technologically produced utopia &#8212; 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.</p>
<p>Something new is developing, there&#8217;s no stopping it, and the thrilling thing is that we are part of creating it.</p>
<p>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.</p>
<p>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.</p>
<p>I <em>bought</em> and started re-reading <a href="http://www.lewishyde.com/" target="_blank">Lewis Hyde</a>&#8217;s <a href="http://www.amazon.com/Trickster-Makes-This-World-Mischief/dp/0865475369" target="_blank"><em>Trickster Makes this World</em></a> 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. (<a href="http://www.lewishyde.com/pub/trickster/TricksterIntro.pdf" target="_blank">The intro to Hyde&#8217;s book is available as a pdf here</a> &#8212; 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 <a href="http://www.lewishyde.com/pub/trickster/TricksterIntro.pdf" target="_blank">break on through to the other side!</a></p></blockquote>
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		<title>Steven Levitt and Freakonomics can go to hell!</title>
		<link>http://blogs.geniocity.com/friedman/2009/12/steven-levitt-and-freakonomics-can-go-to-hell/</link>
		<comments>http://blogs.geniocity.com/friedman/2009/12/steven-levitt-and-freakonomics-can-go-to-hell/#comments</comments>
		<pubDate>Wed, 09 Dec 2009 02:20:18 +0000</pubDate>
		<dc:creator>pfriedman</dc:creator>
				<category><![CDATA[Law as a reflection of its society]]></category>
		<category><![CDATA[problem solving]]></category>
		<category><![CDATA[propaganda]]></category>
		<category><![CDATA[regulation]]></category>
		<category><![CDATA[rhetoric]]></category>
		<category><![CDATA[draft]]></category>
		<category><![CDATA[Freakonomics]]></category>
		<category><![CDATA[Steven Levitt]]></category>
		<category><![CDATA[war]]></category>

		<guid isPermaLink="false">http://blogs.geniocity.com/friedman/2009/12/steven-levitt-and-freakonomics-can-go-to-hell/</guid>
		<description><![CDATA[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&#8217;s proposition that a military draft, in his words, &#8220;puts the &#8216;wrong&#8217; [...]]]></description>
			<content:encoded><![CDATA[<p><a href="http://blogs.geniocity.com/friedman/2009/11/honor-our-veterans-and-dont-efface-their-experience-with-ideology-freakonomics-the-draft/" target="_blank">On Veterans Day I expressed my disgust and contempt for Steven Levitt</a> (he of <a href="http://freakonomicsbook.com/freakonomics/about-the-authors/" target="_blank">Freakonomics </a>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&#8217;s proposition that a military draft, in his words, &#8220;puts the &#8216;wrong&#8217; people in the military.&#8221;  <a href="http://www.nytimes.com/2009/12/08/opinion/08herbert.html?_r=1&amp;ref=opinion" target="_blank">Bob Herbert today expands on the point</a>:</p>
<blockquote><p>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. . . .</p>
<p>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.</p>
<p>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. <em><strong>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.”</strong></em></p></blockquote>
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