Doing justice versus making rules.

There is a tension in the common law between doing justice in an individual lawsuit and articulating rules of general application that can guide decisions in future cases. The beauty of the common law system, however, is that the primary goal is to do justice in the individual case. Civil law, the system that governs in non-Anglo-American countries, on the other hand, relies on a civil code of general application that provides predictability but often at the cost of individual justice.

One consequence of the common law system is that a “rule” articulated by a court in one case to reach the proper result in that one case can often be modified in a subsequent case in which the facts differ in a way that would make it unjust to merely apply the earlier “rule.”

One of my problems with Supreme Court jurisprudence in recent years has been that it has lost sight of this principal purpose of common law judging: to do justice in the particular case before before the court. The justices seem often more concerned with formal, abstract consistency than justice, an emphasis that to this common law lawyer seems very misplaced.

No more blatant example of this distinction exists than the Supreme Court’s recent decision in Caperton v. Massey (pdf). Thankfully, by a 5-4 decision, the Supreme Court reached what plainly was the right result, but Justice Roberts’ dissent (joined by Justices Alito, Thomas, and Scalia) epitomizes the ways striving for abstract, intellectual consistency can do violence to what, plainly, is common sense justice.

Caperton began in West Virginia, where a jury found the A.T. Coal Co., Inc. liable for $50 million for fraudulent misrepresenta-tion, concealment, and tortious interference with existing contractual relations. Knowing the West Virginia Supreme Court would consider an appeal of the verdict, Don Blankenship, Massey’s chairman and principal officer, contributed $3 million to the campaign of Brent Benjamin, who was running for the state Supreme Court against an incumbent. The $3 million contributed by Blankenship exceeded the total amount spent by all other Benjamin supporters and by Benjamin’s own committee. Benjamin won the election by fewer than 50,000 votes.

Subsequently, Caperton, who had won the $50 million verdict, moved 3 times to disqualify Benjamin from hearing the appeal of the verdict. Each time, Benjamin himself denied the motion. Benjamin also turned out to be the deciding vote that resulted in a reversal of the verdict against Massey’s company.

Apparently, as they say, money talks. There is, however, a constitutional right to “due process” under the Constitution, and, accordingly, Caperton appealed to the Supreme Court, which held, as anyone with any sense would hold, that Judge Benjamin could not be counted upon to be a fair and impartial judge of an appeal of a $50 million verdict against the man who got him elected. Justice Kennedy, writing for a majority of the Court, concluded that the primary legal quesiton is whether “under a realistic appraisal of psy-chological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”  Kennedy concluded: “There is a serious risk of actual bias when a person with a personal stake in a particular case had a significantand disproportionate influence in placing the judge on the case byraising funds or directing the judge’s election campaign when thecase was pending or imminent.”

Justice Roberts, jointed by Justices Scalia, Thomas and Alito, on the other hand, ignored the egregious facts before the Court because requiring disqualification based on a “probability of bias,” is a standard that “cannot be defined in any limited way.” Thus, Roberts complains, “[t]he Court’s new ‘rule’ provides no guidance to judges and litigants about when recusal will be constitutionally required.”

I think Roberts is full of it. Any law student knows that common law rules often turn on standards such as “reasonableness” and “probability.” What do we know based on Caperton? We know that deciding a case in favor of the man who has contributed more than 50% of the funds to get you elected to the bench is enough to establish a “probability of bias.” That hardly seems arguable. If it means we’ll get other cases arguing for a “probability of bias” under facts far less probabitive of such undue influence, the courts can deal with those cases by hearing the evidence and determining, using common sense and the guidance of precedents such as Caperton, whether there is or is not a probability of bias.

But Roberts, Scalia, Thomas, and Alito would prefer to let stand a travesty than to burden the courts with deciding exactly the kinds of questions the courts decide every day. That’s not doing justice, and it certainly isn’t common law justice. I’m not sure what it is.

Google’s Library of Babel and its opponents.

Steven Shankland has written a good piece on the proposed settlement of the lawsuits over the Google Library Project; the proposed settlement is “now under review by Judge Denny Chin of the U.S. District Court for the Southern District of New York.”

Under the proposed settlement, the owners of copyrights in books would need to opt out of the project to prevent Google from including those books in its Library database, which is being compiled by scanning the libraries of several major insitutions around the world. As Shankland points out, “that means essentially that Google would be permitted to show content from in-copyright, out-of-print books and sell online copies of those books even without an explicit agreement with the books’ rightsholders.” Copyrighted, out-of-print books constitute approximately 70 percent of the books in the library collections Google is scanning, and that 70 percent includes the vast majority of “orphan works” in those libraries. Orphan works are works whose copyright holders cannot be identified, a common problem because there is no registry of copyrights and the authors of the books are not necessarily the copyright holders. Rather, the copyright holders might include unidentifiable heirs or even corporate entities that have gone through mergers, dissolutions, or other forms of corporate reorganization that make it difficult or impossible to identify the entity that currently owns the copyright.

Nevertheless, some authors continue to oppose the Google Library Project:

“Under the actual law, it is Google’s burden and not yours to ask you for permission and then fairly negotiate terms of contract acceptable to you personally, not jam some monstrosity down your throat,” said Lynn Chu, a literary agent with Writers’ Reps who also called the proposed settlement a “ripoff for authors” in a Wall Street Journal opinion piece.

As a business matter, I don’t understand the view Chu expresses, as I’ve previously written. Why would someone whose work is out-of-print not want that work accessible to the general public? And if that someone wants to keep his work in the obscurity resulting from being out-of-print and available only at some far off insitution’s library, he can always opt out. Chu says that the “actual law” requires Google to ask permission first, not for the copyright holder to deny permission, but the wonderful thing about contracts (and a settlement is a contract) is that they can be a means parties have of altering the rules that govern their relationships in the absence of agreement.

I’ve been a fan of the Google Library Project since it was announced in 2003. It promises to make available for search the collections of many of the greatest libraries in the world. Google will only be able to display brief snippets of works that are in print and under copyright, but even that access will make known to researchers the availability of sources they never otherwise would have been able to find. The Project is one of those endeavors that make the internet and the digitization of information truly revolutionary and magical. It would be a shame if copyright law founded on old technologies and the unfounded knee-jerk reactions of copyright holders (it’s mine, and that means you can’t do anything with it without my permission!) were to end up preventing the realization of revolutionary magic.

Finally, Shankland points out that there is concern over the settlement because it would give Google an advantage over competitors: “Microsoft, Amazon, or the Internet Archive . . . –without their own handy class-action settlement [--] would be have to try to seek such permission in advance from each rightsholder or risk copyright infringement litigation.” But if copyright holders and their representatives are willing to reach this settlement with Google there’s no reason to suppose they wouldn’t with Microsoft, Amazon, or the Internet Archive. Google’s competitive advantage is the result of its initiative and daring in starting the Project in the first place and developing technology (including new scanning technology) to make it truly possible. Advantages gained by daring and initiative should be rewarded by the law, not stymied.

The argument against Proposition 8 — result due in a few hours.

Today, the California Supreme Court announces its decision on Proposition 8, the voter initiative passed in November that outlawed same-sex marriage. In May 2008, the court, held that prohibiting same-sex marriages violated the Equal Protection Clause in California’s Constitution.

The briefs filed in the case are all available here.

The essence of the argument advanced against proposition 8, as I understand it, is as follows: the state constitution’s requirement of equal protection requires that same-sex couples be permitted to marry. The state Supreme Court is the final arbiter of the meaning of the state consitution. Thus, a voter initiative that by a mere majority declares that same-sex couples are not permitted to marry usurps the constitutional role of the state supreme court in interpreting the state’s equal protection clause. It’s an interesting argument — if the voters want someone other than the Supreme Court to interpret the state constitution, they must revise the constitution to alter the role of the Supreme Court. Leaving interpretation of constitutions, however, has been firmly embedded in U.S. jurisprudence since Marbury v. Madison, in which, of course, Chief Justice John Marshall stated:

It is emphatically the province and duty of the judicial department to say what the law is. . . . If two laws conflict with each other, the courts must decide on the operation of each.

Thus, the argument in California goes, the electorate usurped the role of the state Supreme Court in voting by a majority that the equal protection clause does not allow same sex marriage. Here, in summary, is the way the argument was articulated by the Petitioners in their Petition for Writ of Mandate (pdf):

13. Proposition 8 alters Article 1 of the California Constitution by adding “SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.” By its terms, Proposition 8 purports to strip a constitutionally protected minority group of the fundamental right to marry even though that right was previously conferred by the equal protection clause of the California Constitution.

14. Proposition 8 is invalid under the California Constitution because the initiative power does not permit voters to divest a politically unpopular group of rights conferred by the equal protection clause. A transfer of the final authority to enforce the equal protection clause from the judiciary to a political majority can only occur by revision. The Constitution, however, has never been revised to remove final autohority to enforce the equal protection clause from the judiciary.

The Monopoly game is over.

Here’s one reversal of Bush administration policy no one will mistake: the New York Times reports that the Justice Department’s Antitrust Division will strengthen antitrust rules and aggressively enforce the nation’s antitrust laws “against corporations that use their market dominance to elbow out competitors or to keep them from gaining market share.” Remarkably, “[d]uring the Bush administration, the Justice Department did not file a single case against a dominant firm for violating the antimonopoly law. Many smaller companies complaining of abusive practices by their larger rivals were so frustrated by the Bush administration’s antitrust policy that they went to the European Commission and to Asian authorities.”

When the Bush Administration, “[r]eflecting deep skepticism of the role of government in the marketplace,”  made its lax enforcement of antitrust laws official policy in 2008, “three of the four commissioners at the Federal Trade Commission denounced the guidelines, calling them ‘a blueprint for radically weakened enforcement’ against anticompetitive practices.”

The Obama Administration, in contrast, believes it was a major mistake to relax enforcement of the antitrust laws during the the early years of the Great Depression, a policy believed to have “enabled many large companies to engage in pricing, wage and collusive practices that harmed consumers and took years to reverse.” The new policy is expected to hit tech companies especially hard, but is also aimed at “agriculture, energy, health care, . . . and telecommunications companies. ”

In a related note, embedded below, from Silicon Alley Insider, is a copy of a PowerPoint presentation Google is showing around Washington, D.C., marked up with comments by Consumer Watchdog.

Requiring McDonalds to disclose the calories in the Big Mac: good for consumers, or treating customers like idiots?

Today’s Wall Street Journal Law Blog has a post that nicely summarizes the varyious views on the impact of individual lawsuits on corporate behavior.  Referring to an article in the Wall Street Journal by Nathan Koppel (subscription only), the blog explains that “a surge in litigation against food companies for allegedly selling unhealthy products and for misrepresenting their products’ nutritional value” has led the food companies to adopt “a host of health-promoting steps, like reducing their use of trans fats, limiting marketing of sugary products to children, and toning down boasts about their products’ nutritional value.”

Thus, for example, in New York Restaurant Association v. New York City Board of Health (pdf), the United States Court of Appeals for the Second Circuit upheld a New York City law requiring restaurant chains to post calorie information on their menus.  In doing so, the court rejected the argument that the fact the restaurants already satisfied the federal regulations on required disclosures issued by the FDA meant that the city’s regulations were “pre-empted.”

As I mentioned last month, the U.S. Supreme Court recently rejected arguments by a pharmaceutical company that having satisfied FDA labeling requirements, it should not also be subject to state law that imposed even stricter requirements on the company regarding what it must warn about in selling its drugs.  The Supreme Court in that case emphasized the important role litigation plays in supplementing federal regulation, pointing out that regulatory agencies are limited in what they can do and should not be relied upon to alone police an industry unless Congress makes it clear that the agency is supposed to have that exclusive authority:

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

A lawyer in the New York Restaurant Association case argues, though, that such lawsuits are “part of a larger ‘paternalization of society,’ adding that such litigation ‘in effect, says the masses aren’t intelligent enough to understand what they are buying.’” He is not alone in his sentiments, even if he lost his most recent case.  Michael Doyle, a reporter for McClatchy’s Washington Bureau, wrote in the aftermath of the decision that the “calorie police have won another one.”

Who should most influence the creation and intepretation of our laws?

Where did our laws go wrong and help create the current financial crisis?  My own experience over the 28 years since I began law school has been that at the intellectual level we have become more and more enamored of the idea that the free market is the best measure of all value and that at the professional level we have become more and more obeisant to the financial industry.  Markets do a lot of good, but it boggles my mind when complex legal problems involving competing values and belief systems are in facile ways reduced to a weighing of measurable quantities.  And the investment bankers I worked among during my years as a lawyer in New York City were bright, but they were no smarter than the lawyers, painters, non-profit fundraisers, contractors, social workers, doctors, nurses, teachers, writers, and engineers I knew.

As Simon Johnson, a Professor at MIT’s Sloan School of Management and former chief economist of the International Monetary Fund, points out in the Atlantic, it might precisely be our willingness to defer politically to the people we referred to as financial “wizards” that got us in this mess:

Top investment bankers and government officials like to lay the blame for the current crisis on the lowering of U.S. interest rates after the dotcom bust or, even better—in a “buck stops somewhere else” sort of way—on the flow of savings out of China. Some on the right like to complain about Fannie Mae or Freddie Mac, or even about longer-standing efforts to promote broader homeownership. And, of course, it is axiomatic to everyone that the regulators responsible for “safety and soundness” were fast asleep at the wheel.

But these various policies—lightweight regulation, cheap money, the unwritten Chinese-American economic alliance, the promotion of homeownership—had something in common. Even though some are traditionally associated with Democrats and some with Republicans, they all benefited the financial sector. Policy changes that might have forestalled the crisis but would have limited the financial sector’s profits—such as Brooksley Born’s now-famous attempts to regulate credit-default swaps at the Commodity Futures Trading Commission, in 1998—were ignored or swept aside.

The problem is that, as Joan Walsh points out, the Obama administration’s efforts to “fix” the financial industry seem to perpetuate the misplaced reliance on the financial industry that the Democratic Party started back in the Clinton administration and that continues, unabated, to this day in the actions of Tim Geithner and Charles Schumer, the Democratic senator from New York.

Perhaps, though, we’re in on the beginning of a trend in a direction other than the one we’ve taken in the 30 or so years of my professional life.  With the demise of investment banks we’ll no longer see the best and the brightest of our college graduates flowing into investment banking and financial consulting jobs.  At a recent job fair at Columbia University, Kevin Long, a recruiter for Environ, which provides international consulting services on environmental sustainability, cleanup and other issues, was quoted as follows:

We’re delighted. In the past, we have had to compete with investment banks, hedge funds people that were pulling the best engineers and scientists out of these schools. And this year, because of the conditions of the economy, we’re getting an opportunity to go after those students.

Who knows?  If the people we consider the smartest are engineers and medical providers and social workers, maybe we’ll pass laws that enrich them rather than laws that enrich investment bankers.  And maybe that will be better.  Certainly it will bring in a broader range of views.  I don’t mean we should ignore the financial industry, but we should realize when someone tells us by making laws and policy that are intended to directly enrich them we will indirectly be doing ourselves the greatest good, we should perhaps start checking our wallets.

Remix America, I salute you!

I am thrilled to have found Remix America¦America’s Digital Public Square. I’m no technical wiz. I’m always looking for easy ways to do technically difficult things. One thing I’ve searched for and asked friends about for a couple of years is a Friedman-friendly way of mixing and mashing up video and audio clips. I’ve wanted the contemporary equivalent (and therefore the multi-media) analog to the mix tapes I used to make on a cassette tape deck, and I need it to be as easy as making a mix tape on a cassette tape deck. My technically intelligent friends have had suggestions, but none have seemed accessible enough to me to be worth the investment of time and/or money they seemed they might require. But now I’m in techno-idiot heaven. As Remix America explains:

RemixAmerica.org is a multi-partisan, non-profit website that uses digital technology to give everyone the chance to own the words, the music, the images and sounds of America in digital form; to remix those expressions and ideas with their own; and to send the products of our community’s creativity out to the world… where others will come back to us and start it all over again…

And it works! I have a long way to go before I’ll be able to create a mashup that deserves to be posted, but, thanks to Remix America, that day is in sight. And I’m flattered beyond words that Erika Johansson, Producer and Program Coordinator for the site, paid me the compliment of writing to me that “we’ve got similar interests and aims.”

Despite the fact she runs circles around me when it comes to actually using the technology, Ms. Johansson is right that our interests and aims are similar. I approach  the innovation and creativity that is the subject of this blog as a lawyer, a role not typically considered innovative, creative or artistic. But it’s plain that being a lawyer requires fluency in the technical realities and practicalities one addresses as a lawyer.

I believe the law governing any particular set of circumstances expresses  society’s conceptions of what constitutes justice and fairness in those circumstances . In stark contrast, many lawyers and law professors believe law is the product of abstract notions of justice and fairness applied to the world as we find it.

If I am going to write persuasively about any given set of laws, my approach requires that I understand as well as I can the material reality those laws apply to. To understand contract law, I need to understand commercial practices and expectations. To understand market regulation, I need to understand how the financial markets run. To understand copyright law, I need to understand the technical details concerning the production and dissemination of information.

A necessary implication of my approach is that when the material conditions underlying any field change profoundly, the laws that govern that field should change profoundly. And in the last twenty years we’ve experienced a profound change in the material conditions that govern the way we produce, reproduce, and disseminate information. So the law governing the production, reproduction, and dissemination of information has to change — otherwise we’re stuck with the inevitable injustice that arises when you apply rules developed for one set of facts to an entirely different set of facts. There’s a revolution going on, but a lot of people don’t even recognize the revolution. And you can’t begin to understand the revolution unless you understand the the technical details that the revolution consists of.

So Remix America is a godsend to me. It gives me the means to create for myself (very crude) approximations of the mashups and remixes and collages I find so compelling and creative but that many consider theft. If I can understand and actually engage in an approximation of those creative acts, I can understand better and communicate better why those works are genuinely creative works, not merely ripoffs of original works that technology has unlocked.

I  salute and give a gracious thank you to Remix America and urge you to go there yourselves, see the works Remix America is making possible, and maybe start remixing and mashing up and creating your own original works.

Again, let’s give more attention to individual justice and less devotion to abstract rules

The hope for the Obama administration I expressed in my post last Thursday was that it would promote a legal culture in which courts would begin to pay more attention to the justice required in individual cases rather than, as has been increasingly true over the last thirty years, feel increasingly bound to abstract interpretations of language that lead to plainly unjust results. My focus in that post was on statutory interpretation, but the same sentiment applies to the interpretation of contract language, as Ralph James Mooney made clear in The New Conceptualism in Contract Law, 74 Or. L.Rev. 1131, 1170-1171 (1995). Mooney also noted, as I implied in last Thursday’s post, that the new focus on abstract rules and language at the expense of just results in individual cases invariably favors moneyed corporate interests:

Just as they have in contract formation disputes, American courts recently have embraced far more conceptualist approaches to contract interpretation issues. They [exalt] the written word over the parties’ actual . . . agreement. They exercise their pre-modern faith in the objectivity of language, and overturn jury verdicts, by applying classical interpretive rules like ”plain meaning,” ”four corners,” and interpretation as a ”matter of law.” In general, American courts the past dozen years have moved noticeably away from the most fundamental theorem of contract interpretation, that the law should enforce the parties’ intention, toward a more abstract, disembodied inquiry, resembling, what should the parties have meant when they signed this form contract? In addition, this intellectual regression once again has had important political consequences. . . . Notice that, as in formation cases, it is almost invariably a seller, a bank, an employer, or . . . an insurer that benefits from the New Conceptualism in contract interpretation. This judicial tilt away from underdogs, back toward the privileged beneficiaries of classical contract law, is, of course, the New Conceptualism’s most troubling feature of all.

Why AP has little chance of success against Shepard Fairey

 Let me explain in greater detail why I not only think Shepard Fairey will prevail in the lawsuit AP has brought against him for copyright infringement, but also why I think it isn’t even a close case. The case, of course, involves Fairey’s poster (pictured on the left), which Fairey created by first stenciling the AP photo wire photo pictured on the right.

As the Stanford Copyright & Fair Use site explains, determining whether a work that appropriates all or part of a copyrighted work is no easy thing:

The only guidance is provided by a set of fair use factors outlined in the copyright law. These factors are weighed in each case to determine whether a use qualifies as a fair use. For example, one important factor is whether your use will deprive the copyright owner of income. Unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to navigate.

The four factors and my evaluation of their significances in this case are as follows:

(1) The Purpose and Character of Your Use: As the Stanford Fair Use & Copyright site makes clear, this factor turns to s large degree on the following two questions:

(a) Has the material you have taken from the original work been transformed by adding new expression or meaning?(b) Was value added to the original by creating new information, new aesthetics, new insights and understandings?

As I’ve already made clear, I am convinced of that Fairey’s image sufficiently transforms the image of the AP photograph to be considered genuinely tranformative. Except for the fact that both are plainly images of Obama and that in both his expression and the tilt of his head are the same, the two images are entirely different. They are so different, in fact, that for many, many months no one, much less AP, was even able to identify the image from which Fairey started from. The physical changes Fairey has rendered to the image are plain. He has changed elements, and, through his painting style, simplified the elements significantly. In one image, you have all the complex information of a photo; in the other you have three colors arranged in a small number of blocks and lines. Finally, the photo could not possibly have become an iconic image of the presidential campaign. The Fairey poster did.

(2) The Nature of the Copyrighted Work: The AP photo is a generic wire service photo. While photography is, of course, a creative endeavor, some images are more creative than others, and the AP photo of Obama is about as generic as they come. First, it’s an image of the most recognizable face in the world. Second, there is nothing special about it. This generic nature of the work is emphasized by the fact, as I pointed out above, that it took months before someone (not from AP), after scouring the internet on a search for the source of Fairey’s image, finally found the right one. AP had not even known its copyright image was part of a poster that was visible all over the country and in all the media.

(3) The Amount and Substantiality of the Portion Taken: In fact, this might be the factor that counts most seriously against Fairey, but even this factor is, I believe, a close call. As i explained above, about all Fairey’s image ultimately uses is the expression and the tilt of Obama’s head. The very nature of the image is changed from that of a photograph to that of a semi-abstract painting. The background is changed. The color of the tie (a generic tie on a generic suit) is changed. The circular Obama symbol on the suit’s lapel is added. And, of course, the word “HOPE” is added.

(4) The Effect of the Use Upon the Potential Market. This factor, which in the past has been referred to as the most important factor, isn’t even close. Fairey’s image has obviously had NO negative impact on the market for the AP photo. The only possible effect, a likely one, is that it has substantially increased the value of AP’s copyrighted image.

The Stanford Copyright & Fair Use site also points out that “Fair use involves subjective judgments and are often affected by factors such as a judge or jury ’s personal sense of right or wrong.” The fact that Fairey’s image was produced as his contribution to a political campaign would, I believe, weight the case even more heavily in his favor. The courts give great leeway to political speech, which is at the very core of the First Amendment’s values.

ADDENDUM: Brian Ledbetter kindly quotes substantially all of this post and expresses agreement with most of it, but also expresses two reservations: (1) cross-media copying like Fairey’s — whether it be from photograph to painting, painting to statue, photo to Hallmark card-does not necessarily fall under “fair use” exceptions of Copyright law and (2) modern technology makes alterations to photos like the ones Fairey made to the AP photo so easy that we’ll have to begin to believe that “anyone” can create art.

My response, reproduced from the comments to his post:

Cross-media copying is not fair use only to the extent that the result is a “derivative” use. What constitutes a “derivative” use may be as obscure as any other matter on this topic, but it cannot possibly mean any work that is “derived” from a copyrighted work. Every fair use is derived from a copyrighted work.

So what is a “derivative” work? I would submit it is something that exploits at least in part the market created by the original work. Thus, for example, a Snoopy mug would be a derivative work, as would a cover song. I would submit that this mashup, though quite entertaining, is a derivative work in that all it does is exploit the market created by Charles Schulz and OutKast:

The trivia book based on Seinfeld was a derivative use because its targeted market was the audience created by the sitcom. The bio of Salinger that was enjoined was a derivative use because it used such large portions of unpublished Salinger letters that it at least in part was intended to exploit the market for people hungry for anything new by Salinger (he hadn’t published in decades).

But [Brian's} Tom Daschle photo.isn't exploiting any market created by the original. And you know what? The more and more such things get turned out, the less and less they'll have an impact. There's no denying that Fairey's image, while simple, is a powerful one, or at the very least that it resonated as one with a huge portion of the public. I don't think [Brian's] Daschle workup would. And if so, so what? Does that hurt the original photographer? Are we to stifle your creativity to protect some right of the photographer not to have his photograph used in ways he doesn’t want it used? There is no such right. Instead, there’s the First Amendment, which, in the absence of copyright (created to PROMOTE creation) would allow us to use anything.

It’s a good day for feisty working women.

On January 6, I wrote about “Writing Wrongs the American Way” in connection with the travesty of the Supreme Court’s decision in the Lily Ledbetter case and the pending legislation intended to correct that wrong.  Well, today President Obama signs the Lilly Ledbetter Fair Pay Act into law.  In today’s New York Times, Gail Collins explains clearly and concisely the injustice Ledbetter suffered:

Ledbetter, now 70, spent years working as a plant supervisor at a tire factory in Alabama. How, when she neared retirement, someone slipped her a pay schedule that showed her male colleagues were making much more money than she was. A jury found her employer, the Goodyear Tire and Rubber Company, to be really, really guilty of pay discrimination. But the Supreme Court, in a 5-to-4 decision led by the Bush appointees, threw out Ledbetter’s case, ruling that she should have filed her suit within 180 days of the first time Goodyear paid her less than her peers. (Let us pause briefly to contemplate the chances of figuring out your co-workers’ salaries within the first six months on the job.) Until the Supreme Court stepped in, courts generally presumed that the 180-day time limit began the last time an employee got a discriminatory pay check, not the first.

Ledbetter, unfortunately, will not benefit from the new law.  The Supreme Court decision in her case was a final judgment that cannot be undone.  But Collins does her some justice in celebrating her willingness to fight for her rights.  And I’m glad to see too that Collins recognizes the importance of lawyers in the fight for justice too:

It’s a good day for the feisty working women who went to court to demand their rights and the frequently underpaid lawyers who championed them. They’re strangers to one another; most of them made their stands and then returned to their ordinary lives. But they’re a special sorority all the same.

Someone must have traduced Maher A. . . .

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

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

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

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

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

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

Righting wrongs the American way

One of the ways our legal system adjusts is that old process we remember from our first elementary school courses (and perhaps think of as trite and archaic): the system of checks and balances.  I grew up at a time when the federal courts were a substantial check on state legislatures, state courts, and local police forces.  Since my childhood, though, the political system has grown increasingly conservative, and by now the federal courts too have become conservative.  Last year, as the New York Times explained yesterday, the Supreme Court “made it much harder for people to challenge discrimination in employment, education, housing and other fields. Lilly M. Ledbetter lost her sex-based pay discrimination case at the Supreme Court in 2007, a decision that other courts have cited in rejecting lawsuits. Congress may overturn the ruling.”

The Court held that employment discrimination claims must be be filed within 180 days of the  ”the alleged unlawful employment practice” – the initial decision to pay Ledbetter less than men performing similar work.  Previously, courts had held that each paycheck after the initial discriminatory act (each of which would have been for less money than if the discrimination had not been committed), constituted a new act of “continuing discrimination.”  Thus, as long as the employee filed her claim within 180 days of a paycheck reflecting the impact of the discriminatory employment decision, her claim could be heard.

The decision was roundly criticized at the time and quite plainly cut off an enormous number of discrimination claims (whether the unlawful action had been discovered within the 180 days or not).  Now it seems Congress is ready to right this judicial wrong.  The bil it is is considering “states that a violation occurs each time a person receives a paycheck resulting from ‘a discriminatory compensation decision.’” “President Bush threatened to veto the bill, but Mr. Obama is eager to sign it.”

Is Wal-Mart a person? Kind of, but not really.

One of the odder and more influential innovations in law was the 19th Century “recognition” of corporations as “persons,” a notion that has begun to have a profound impact on our law in the last 30 years. That a corporation is a person is something you learn early in law school, and for the most part the notion is not a disturbing one. I teach contracts, and there seems nothing odd to me that corporations are parties to contracts and thus have rights and duties under those contracts.

That an abstract entity (albeit one with concrete assets) has the same legal status as you and I do becomes weird, however, when you start considering constitutional implications. How can a corporation have the right to free speech? Well, they argue they do, and the argument has profound implications, particularly in the area of campaign contributions. The principal argument against regulating campaign contributions is that doing so limits free speech. If one limits what a person can give to a candidate or a party, the argument goes, then one is limiting the extent to which that person can express his political beliefs. Limiting money, in other words, is limiting speech. But when speaks of limits on corporate contributions, you’re talking not only of limiting money, not speech, but of limiting money from something that isn’t really a person (but that, after all, only is expressing the views of people who have their own rights to free speech).

In an interview with BuzzFlash from 3 years ago, “Is Wal-Mart a Person?,” Thom Hartmann tells “why it is — kind of — but not really:

Nike asserted before the Supreme Court last year, as Sinclair Broadcasting did in a press release last month, that these corporations have First Amendment rights of free speech. Dow Chemical in a case it took to the Supreme Court asserted it has Fourth Amendment privacy rights and could refuse to allow the EPA to do surprise inspections of its facilities. J.C. Penney asserted before the Supreme Court that it had a Fourteenth Amendment right to be free from discrimination – the Fourteenth Amendment was passed to free the slaves after the Civil War – and that communities that were trying to keep out chain stores were practicing illegal discrimination. Tobacco and asbestos companies asserted that they had Fifth Amendment rights to keep secret what they knew about the dangers of their products. With the exception of the Nike case, all of these attempts to obtain human rights for corporations were successful, and now they wield this huge club against government that was meant to protect relatively helpless and fragile human beings.

Bail out the Big Three!

Thanks to the Cleveland Plain Dealer for this and for this, from Thomas Suddes:

It’s hard to imagine anything more disgusting than the blowhards who claim that consigning Chrysler, Ford and General Motors to Bankruptcy Court would be a good thing.

In fact, cutting Big Three workers’ wages would also cut spending at supermarkets and malls, shrinking many other Ohio paychecks, too.

And benefit cuts would add clients to Ohio’s Medicaid tab, which bulges now like a glutton’s waistline.

Critics of a Big Three bailout relish double-talk – “magic of the market,” “creative destruction” – because it hides the cruel, real-world truth. A collapse of the Big Three would destroy Ohio families and towns, especially in Greater Cleveland and the Dayton area. Ohioans in Twinsburg, Lordstown, Warren, Moraine and a score of other towns deserve better from their country than to be declared human surplus.

According to data from the state Department of Development, almost 15,000 Ohioans work for General Motors, about 11,000 for Ford, almost 7,000 for Chrysler and 6,000 for Delphi, the parts manufacturer. If you want to argue that losing or “downsizing” those payrolls would be no big deal, try to sell that story elsewhere. I’m from Youngstown and my father worked in a steel mill. So did the whole neighborhood. Correction: What was the neighborhood. End of story – a heartbreaking story.

In the 1970s, Wall Street and Washington caused American steel’s troubles, but the “Free to Choose” economic cult predictably blamed the United Steelworkers. Union members had the gall to prefer a living wage and decent benefits to company-town serfdom. Yet the steel those “overpaid” men and women produced – not wage cuts dreamed up by economists with lifetime jobs – is what built Ohio.

Sure, there’s more in play politically in the Detroit bailout stalemate than campaign contributors’ 30-year war on the living standards of American working families.

As Gerald F. Seib wrote so eloquently in Tuesday’s Wall Street Journal, congressional factors also are at work. First, “Western, environmentally minded [Democratic] leaders . . . don’t see the auto companies as particularly important to their region, or friendly to their green causes.” Second, among congressional Republicans, “foreign-owned auto plants concentrated in the Republican-leaning . . . South . . . stand to benefit if the Big Three American companies go down.”

Suddes is right that a bankruptcy consigns Ohio (and Michigan, and several other states — but I live and work in Ohio and Michigan) to economic disaster.  In bankruptcy, the debtor delays and reduces its payment of its debts, and it cancels contracts without any liability.  In other words, if any of the Big Three go into bankruptcy, every business that services the auto industry directly or indirectly will be jeopardized.  Perhaps these businesses will be reconsituted somewhere and some way in the future, but in the meantime entire cities, towns, and states will be uprooted.  Richard Shelby of Alabama declares in the Senate that we can’t bail ou the Big Three.  He doesn’t mention the benefit that would bring to the non-union, Japanese and German auto makers with factories in his state. Some people do mention the United Auto Workers, as if its mere existence is proof of corruption and ineptness, but they don’t mention the enormous concessions the UAW has made in the past several years.  It is time to help out Detroit and the entire surrounding Great Lakes region.

The beginning of the end of a legal nightmare?

Sanity is beginning to take hold once again in our country’s legal institutions.  Judge Richard J. Leon is no wild eyed liberal.  He was appointed as a judge by George W. Bush in 2002.  Back in the ’80s he served as counsel to the Republicans in the congressional investigation of the Iran-Contra affair, and he was Special Counsel to the U.S. House Banking Committee for its “Whitewater” investigation.  In January 2005 he dismissed the habeus corpus petitions of 5 Algerian detainees in the U.S. military prison at Guantanamo Bay.

Yesterday, however, Judge Leon ordered (pdf) the release of the same 5 detainees after evaluating and rejecting government evidence that they were dangerous enemy combatants.  According to the Washington Post, “The Algerians were detained for years on allegations that they had been plotting to blow up the U.S. Embassy in Sarajevo when they were picked up by Bosnian authorities and later turned over to U.S. officials. Bush mentioned the bomb plot in his 2002 State of the Union Address. But the government withdrew those allegations last month without explanation.”  Judge Leon explained in his order that to allow the detention to continue based on “so thin a reed” (emphasis in original) of evidence as that presented by the government “would be inconsistent with this Court’s obligation.”  He also explained, “Unfortunately, due to the classified nature of the Government’s evidence, I cannot be more specific about the deficiencies of the Government’s case at this time.”

Judge Leon ordered that a sixth detainee, Belkacem ben Sayah, remain in custody because the government’s evidence against him was sufficient to label him an enemy combatant.

Last month another federal judge ordered the release into the United States of a small group of Chinese Muslims held at Guantanamo Bay.  The government conceded that those men are not threats to the United States.

But the Bush administration will not give up the fight it began years ago when it set up the prison at Guantanamo.  The Chinese Muslim prisoners have not been released pending the government’s appeal, which is based on the argument that regardless of the threat posed by the prisoners the courts do not have the power to order the executive branch to release a detainee into the United States.  And the Justice Department, in response to yesterday’s decision by Judge Leon, praised the decision to keep ben Sayah in custody while stating, “We are of course disappointed by, and disagree with, the Court’s decision that we did not carry our burden of proof with respect to the other detainees.”

As Jurist reports, “In a related development Wednesday, a military judge at Guantanamo Bay rejected evidence against detainee Mohammed Jawad [JURIST news archive], finding that it had been obtained through torture. Other evidence against Jawad for his pending trial by military commission was excluded in October, also because it had allegedly been obtained through torture.”

Perhaps this is the beginning of the end of a long national nightmare.  The Bush Administration set up the prison at Guantanamo after 9/11 on the theory that, since Guantanamo is not technically U.S. territory, the executive branch could do anything there to anyone without any legitimate review by any institution independent of the executive.  It could take people from China or Algeria, and even U.S. citizens, stick them in Guantanamo, torture them, and throw away the key, and there would be nothing anyone could do about it.

But let’s not be naive.  Four Supreme Court justices in Boumediene v. Bush (pdf) argued that the Guantanamo detainees were not entitled to the right to a habeus corpus hearing requiring the government to establish grounds for their detentions.  Justice Scalia in his dissenting opinion in Boumediene, joined by Justices Thomas and Alito, wrote that allowing the type of hearing that Judge Leon held “will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.”  Picking up on this vitriolic rhetoric from three of our highest jurists, conservative commentators wrote things like the following:

On June 12, the Supreme Court in Boumediene v. Bush gave the roughly 270 prisoners held at our prison camp in Guantanamo Bay, Cuba, the same constitutional rights as you and I. These foreign terrorists all plotted, planned, fought against and even killed American soldiers, who, now thanks to an oligarchy of five justices, can go before a U.S. federal judges in civilian court to challenge their years-long detention. (emphasis added)

Judge Leon made clear what the truth is: in the United States of America you cannot throw people into a cage and throw away the key without some legitimate basis for doing so.  The mere fact the military, the CIA, or (as in the case of the Algerians freed by Judge Leon) Bosnian authorities detained people and sent them to Guantanamo does not establish that they have plotted, planned, fought against, or killed U.S. soldiers.  We have to do away with Guantanamo, and we have to do away with torture.  We have fought and won wars far more threatening and damaging without abandoning our constitutional principles and the principles of the Geneva Convention.  January 20, 2009 cannot come soon enough.

Friday Night’s Music Break: Graham Nash’s “Chicago”

Considering the intensity of the political moment and the fact my son’s current U.S. History project is on Bobby Seale, I thought Graham Nash’s “Chicago,” would be the appropriate song for this week’s Friday Night Music Break:

Vernon Jordan on Primus King, true courage, and the long road we’ve traveled

One of the greatest men I have ever known is Vernon Jordan, my former partner in Akin Gump Strauss Hauer & Feld, LLP.  Newsweek recently ran an excerpt from Jordan’s new book, Make it Plain.  The excerpt makes as clear as is possible that legal progress requires imagination and, perhaps most of all, sheer courage: 

Primus King was my man.

Born in 1900 in Hatchechubbee, Alabama, the son of sharecroppers, Primus E. King grew up in Columbus, Georgia, where his parents had moved to escape the grinding oppression of the sharecropping system. King was unlettered—like many Southern blacks in those decades for whom the state and local governments made formal schooling an impossibility.

But Primus King well understood the denial of rights blacks endured. His determination to be as independent as possible of the South’s Jim Crow–rigged system of government and social relations showed itself early in his learning the trade of barbering. Later, in 1939, King’s religious faith led him to become an itinerant Sunday preacher, ministering as called by one of the many small black churches that dotted the Black Belt countryside in Georgia and Alabama. It was that faith, he later said, which fortified him for the task he undertook on July 4, 1944.

On that day, Reverend Primus King walked into the Muscogee County Courthouse in Columbus, Georgia, to cast his vote in the state’s Democratic Party primary election. Because the racist Democratic Party monopolized political activity in Georgia as it did throughout the South, the primary determined the outcome of the general election. For that very reason, the state Democratic Party barred blacks from voting in the primary. It was that travesty of democracy that King, quietly supported by the local NAACP, intended to change.

“I am a citizen of this city and this state,” he declared to the white election officials that day. “I own property. I pay taxes. I can read and write and do arithmetic, and I have not committed a crime of moral turpitude. I have come to vote.”

His words got King roughly escorted out of the courthouse by police officers. But King persisted, and with the prearranged help of two local white lawyers, filed a federal suit to outlaw blacks’ exclusion from the Democratic primary.

That brought a warning from party officials, who summoned King before them and bluntly told him that “if you don’t withdraw the lawsuit, you could end up in the Chattahoochie River.”

King, standing alone before the pillars of segregationist power, replied, “Well, if that happens, then at least I’ll be thrown in the river for something, as opposed to all the colored people who’ve been thrown in there for nothing.” And he walked out.

In October 1945, the Federal District Court in Macon, Georgia, ruled in King’s favor, striking down the Georgia white primary. In March 1946, the U.S. Circuit Court of Appeals in New Orleans upheld that ruling, and the following month the U.S. Supreme Court declined to hear the Georgia Democratic Party’s appeal.

The all-white Georgia Democratic primary now officially stood where it belonged—outside the bounds of the Constitution of the United States.

Jurist – the oldest and still greatest legal news site

The page is designed to give our US and worldwide audience a space in which to share their JURIST experiences and their common interest in the legal news and commentary that we offer every day, while giving readers occasional behind-the-scenes peeks at law student staff operations here at the University of Pittsburgh School of Law, JURIST’s host institution. After more than a decade of delivering content to hundreds of thousands of largely anonymous readers around the world, our staff is looking forward to seeing the faces and hearing the voices of the ever-growing number of JURIST readers on the Facebook service!

Not only is Jurist one of the Ancient Wise Oracles of the online legal world, it is a moment-to-moment legal media center.  Just to give two examples of particular concern to me:

As I wrote yesterday, Google seemed on the verge of settling the long-running and profound disputes concerning its Google Library Project.  Jurist now reports the settlement is final:

With respect to another profound concern of mine, military torture, Jurist reports that a federal judge has ruled that evidence obtained by torture cannot be admitted in the trial of a Guantanamo detainee:

A US military judge ruled Tuesday that a confession given by Guantanamo Bay [JURIST news archive] detainee Mohammed Jawad [DOD materials; JURIST news archive] to Afghan officials following his capture in 2002 was obtained using torture and is therefore inadmissible at his upcoming military commission [JURIST news archive] trial. Army Col. Stephen Henley found that Afghan officials threatened to kill Jawad and his family unless he admitted to throwing a grenade that injured three US soldiers in Kabul in 2002. Henley ruled that obtaining a confession using threat of death amounted to torture, and that under Guantanamo trial rules his confession is therefore inadmissible. Reuters has more.

Jawad, who was transferred into US custody after the confession to the Afghanistan government, was designated an “enemy combatant” in 2004. He was later charged [charge sheet, PDF; JURIST report] with attempted murder and intentionally causing serious bodily injury for his role in the attack, which injured two US soldiers and an Afghan translator. The case against him faces growing problems. Last month, former military commissions chief prosecutor Army Lt. Col. Darrel Vandeveld resigned [JURIST report], citing “ethical qualms” with the military commissions’ defense counsel discovery procedures. In May, Jawad moved [JURIST report] to have all charges against him dismissed, alleging that he has been tortured in US custody and subjected to the so-called “frequent-flier program,” in which certain inmates are moved between cells at two to four hour intervals in an attempt to cause physical stress through sleep deprivation. Jawad, the fourth Guantanamo detainee to be formally charged with war crimes under the 2006 Military Commissions Act [text, PDF], is set to face military commission on January 5, 2009.

Settlement imminent in lawsuit against the Google Library Project?

I’ve long been fascinated by the Google Library Project, considering it one of the greatest boons to research since Gutenberg. I’ve written on this blog of my bafflement at its opponents, especially those authors who fear their inclusion within the project. I’ve written elsewhere at the utter misconceptions that govern some views of the project. (I have, however, been called a “dickwad” for pointing out these misconceptions, a characterization unsupported by reference to any law.)

The good news is that, as Open Access News reports, “Andrew Albanese reports in Library Journal, October 10, 2008, that Google and a group of publishers may be close to settling the publishers’ lawsuit against the Google Library Project:

Nearly three years after its initial filing, it appears a settlement may finally be near in publishers’ lawsuit over Google’s controversial program to scan books from library shelves. Although rumors of a settlement have flared up and died down intermittently over the years, sources wishing to remain anonymous this week told the LJ Academic Newswire and Publishers Weekly that talk of a final agreement has indeed heated up, with one publishing insider confirming that a settlement was “imminent,” although no solid time frame was known….

A settlement has long-been expected, as it would avoid what is setting up to be a messy trial. Industry-watchers have predicted the two parties eventually would reach some kind of blanket license agreement, noting that avoiding a court decision involving murky copyright and fair use boundaries is the logical, least risky-and least costly-option for both parties.

From the start, publishers have maintained that the wholesale scanning of copyrighted books from libraries is an unreasonable expansion of fair use, and that Google is creating a valuable asset without compensating rightsholders. Google has countered that its plan, which makes only “snippets” of copyright-protected books viewable online, is fair use, and that publishers, can also “opt out” of having their books scanned….

[T]he AAP suit, filed in October 2005 on behalf of McGraw-Hill, Pearson Education, the Penguin Group, Simon & Schuster, and John Wiley & Sons, does not seek damages. It seeks an injunction that would essentially declare that Google’s scanning of an entire book still under copyright without permission is infringement. . . .