Literature is theft.

Plagiarism is a puzzling vice. No writer, if he or she were honest about it, would ever deny that, when they come across a good thing in someone else’s work, consciously or unconsciously they store it up for a rainy day. “Literature,” the American journalist James Atlas likes to say, “is theft.” He’s right. The history of books and writing supports this provocative assertion to the hilt.

[I borrowed that.]

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.

Yes, lawyers need to be experts in design and typography too.

I always tell my students that one of the reasons the first year of law school is so difficult is that they come to law school thinking their time and effort will be completely exhausted by the effort to learn all the law. But, I go on to tell them, learning the legal rules is the easy part. You read statutes and case law and regulations and secondary source interpretations to find the rules. Applying them is a whole different thing. That’s probably the hardest part.

But one of the most difficult parts of lawyering, one most students take a particularly  long time to grasp, is that you have to pay attention to everything. So you act like a professional: you show up on time; you use professional language, not the language you use with your friends or on Facebook; you take criticism as an opportunity to learn what you did wrong; you take disagreement as a necessary part of the profession you are becoming part of, not as a personal attack; the point of your efforts is to learn to be a good lawyer, not to earn a good grade.

It never ends. But that’s okay — there’s just always room to get better.

And now comes, to fill an aching need, Typography for Lawyers, a site by Matthew Butterick, a civil litigator in L.A. who majored in art as an undergrad at Harvard, where he focused on design and typography. I’m very impressed by his recognition of the reason his expertise is needed. He explains that 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.”

In general, the importance of graphic design to effective communication is woefully unappreciated. Butterick points to the design of the butterfly ballots that caused the 200 presidential election fiasco in Palm Beach County, Florida as an historic example of the bad consequences of bad design.

What caused the Challenger shuttle disaster? You might think it was defective O-rings, but that would be to fail to appreciate that the defect would likely have been known and its consequences guarded against, according to Edward Tufte, if the charts presenting the critical information to the decision makers had been rationally designed. Tufte’s expertise is in the effective use of graphics in conveying information. He’s a genius, and the dedication to his craft is made clear by the fact he self-publishes his books so that he can control the design of every element of them. And his advice on the use of PowerPoint is priceless.

Greenberg v. AIG: the evidence and the truth

The difference between journalists and lawyers?  Journalists, at least as they practice their craft these days in this country, practice a pretended objectivity by giving voice to both sides of a dispute.  I presume the purpose is to leave the reader to be the judge.  It’s a way of going about thet job that gives the impression of being as fair as it is possible to be.  Fox News has grounded its entire image  in precisely this perception of what is most fair: “We report, you decide.”

I’ve bemoaned before the absence of critical thinking that goes into this style of reporting.  The New York Times is at it again today, this time on a subject far more important than whether a hot artist’s most valuable products infringe the copyrights of other creators — how AIG got our country into the financial mess it’s in and whether we ought to trust the people who brought us here to lead us out.  Hank Greenberg, the long-time head of AIG who was deposed in 2005, testified yesterday to Congress and claimed that the Obama administration should have let AIG go bankrupt, that the administration’s policies have deprived AIG of its most valuable assets by driving off the people who led AIG into its catastrophic state, and that Mr. Greenberg’s policies — which included the creation of the credit default swaps that “insured” the mortgage backed securities that were doomed to failure — had nothing to do with the eventual failure of AIG.  He might not have provided reserves to allow AIG to afford the liabilities it had assumed when it sold the credit default swaps (thereby earning itself enormous amounts of money, profits that of course contributed to the fortunes made by Mr. Greenberg and the other geniuses who our government has driven away), but, he says, he would have set aside reserves to meet those liabilities (thus averting the necessity of the bailout) had he been allowed to stick around.

The story does give the other side of the story, quoting a spokesperson for the current management of AIG contradicting Mr. Greenberg and asserting flat out that he lacks any credibility:

“Hank Greenberg continues to deny his role in allowing [AIG's Financial Products Division] to write the multisector credit-default swaps which sowed the seeds for AIG’s troubles,” the company said, referring to the financial products unit. It went on to denounce Mr. Greenberg as evading questions and lacking credibility as a business strategist.

“He refuses to acknowledge that he approved entry into the credit-default swap business, approved more than $40 billion of swaps written on C.D.O.’s containing subprime loans, and didn’t hedge or put up reserves against them,” the company said. Collateralized debt obligations are securities made from pools of loans and other forms of debt.

“We don’t understand how he can be viewed as having any credibility on any AIG issue.”

My problem with this type of journalism is that it doesn’t make judgments that can be made.  It often may be difficult to tell right from wrong with certainty, but there are often clear judgments to be made about which position is better and which worse.  Mr. Greenberg’s self-interest in these matters, his lifetime of self-promotion in the interests of building an immense personal fortune, and his rank hypocrisy are legendary.  A journalist is capable of giving both sides of an argument and of understanding context and making judgments.  To fail to do so leaves the reading public to do that work themselves, something that people simply don’t have the time to do.

Lawyers, on the other hand, do contend always with adversaries setting forth evidence that seems to contradict the evidence they are presenting on behalf of their own clients.  But setting forth the evidence is only part of a lawyer’s job.  The lawyer also structures that evidence into arguments on behalf of his client’s position, explaining specifically how that evidence should be viewed.  Then decision makers (juries, judges, arbitrators, etc.) decide.  The lawyer doesn’t rely on the decision-maker to figure out how to explain the evidence.  The lawyer gives the decision-maker the means of understanding it.

I don’t know why journalists don’t do so more often.

I think the answer is yes.

James R. Elkins asks:

My question is this: Is there a way to make use of the imagined spaces in which we read-read as students of law, read novels for pleasure-and perceived chasm between pleasure and work? Is there a middle ground of reading, a strategy for reading, that would allow a student of law to think about reading law cases as literature and reading novels as if they might be of central importance in the way one becomes a lawyer? Is there a way to read law for pleasure and novels as instructive vocational texts? If so, we may find in “lawyers and literature,” that we’ll need to redefine pleasure and purpose; we redefine what it means to be a reader of law and of literature.

The Lonesome Death of Hattie Caroll and the recent death of her killer.

William Zantzinger, a Maryland man who became the subject of 1964 Bob Dylan song “The Lonesome Death of Hattie Carroll, died earlier this month at the age of 69.

Are lawyers and artists completely different and atagonistic?

Wendy Duong of the University of Denver Sturm School has written an article entitled “Law Law is Law and Art is Art and Shall the Two Ever Meet? Law and Literature: the Comparative Creative Processes.”

It’s a fascinating article and well worth dowloading and reading, but here I’d like to take issue with one of her principle points.  As she puts it in the abstract to her article:

The two disciplines, Law and Art, remain divergent and incompatible in three core aspects: (i) the mental process of creation and the utilization of facilities, (ii) the work product or output, and (iii) the raison d’etre of law versus art. The Article points out that the mental process and utilization of facilities inherent in law has little to offer the creation of art, and the two creative processes are antagonistic to each other. In fact, the rationality and logic properties of law the objective of rendering certainty to uncertain future outcomes so as to achieve and maintain order — will interfere with, and can even destroy, the creation of art.

I will confess that I would not generally consider the product of legal practice “art” and it would be a stretch to fit even certain extraordinary legal products art –  Perhaps the Declaration of Independence? The Constitution? Certain influential legal opinions?)

But does law “render certainty to uncertain future outcomes”?  I passionately believe that an enormous part of the law does not do that at all, that what in fact it does is the kind of activity Ms. Duong attributes to art.

Life is infinite.  Each case courts decide are intended first, of course, to resolve the specific cases they are resolving.  But to the extent they render opinions, they are only contingently trying to address the future, and they know those contingent efforts are subject to irrelevance under new circumstances.

Moreover, life is constantly changing, and the law has to grow out of the material conditions it is always striving to govern.  In doing so, it is constantly striving to envision the future material conditions the law might apply to and to anticipate those conditions in making law.  Lawmakers then do not decide with a certainty what law they want to impose from above on the future; they collaboratively work out the best approach to whatever they can envision, knowing all the while that the law may well have to change in the future.

The practice of law too is the constant telling of stories — stories to persuade, stories to inspire, stories to justify visions of the future.  In doing so they are as constrained as artists in the “realities” available to them.  Lawyers are artists.  They may have to make decisions, but that doesn’t mean that in getting to those decision-making points they are not as creatively engaged as artists.

Finally, if lawyers aren’t engaging in the same mental facilities as artists, I don’t have a clue what mental processes artist and lawyers engage in.  I suspect if those ways of thinking are entirely divorced from one another, the lawyers aren’t practicing law well and the artists are not producing good art.

And if artists’ visions are irrelevant entirely from decisions people make in life (You must change your life.), what is it?

Law in Art/Law as Art

I’ve taught in law schools for 13 years. Before that I practiced in New York City for over 11. What I’ve largely found is that lawyers have little use for law professors, and law professors have little use for lawyers.  Where I am this year, the University of Detroit Mercy Law School, is an exception to this rule, and a rare one.  The far more common, if strange, disconnect between the academic world and the world of practice is illustrated by the academic field known as “Law and LIterature.”  Wikipedia accurately describes Law and Literature as both the study of law in literature and of the literary characteristics of legal writing.:

The law and literature movement focuses on the interdisciplinary connection between law and literature. Believed to have originally begun as a subcategory of jurisprudence, the movement encompasses the complementary ideas of law in literature and law as literature.

The problem, as Daniel J. Kornstein, a writer and a lawyer, is that the law and literature movement has had no impact on the practice of law:

The greatest shortcoming in Law and LIterature to date has been its failure to reach and engage the practicing lawyer. For the most part, Law and Literature has remained firmly entrenched in legal academia, its realm of origin. The shirtsleeve lawyer is essentially untouched.

I have from the start intended for this blog in large part to remedy this lack of connection between literature, and other arts, and the practice of law. Just as the Law and Literature movement examines both law in literature and law as literature, I try to focus on law in creative endeavors and law as a creative endeavor. I suppose part of what drives me to do so is that I have taught primarily first year law students, and they, like most people, have given very little thought to the art they have encountered and only begin under my watch to understand that, perhaps primarily, I am training them to be artists, not technocrats.

Law as performance

The courtroom as theater is such a commonplace notion that it has even been the subject of installation art, including the installation pictured here, “Set: Room 302,” a collaboration between Judy Radul and Geoffrey Farmer. Commenting on the piece, Richard Fowler, a lawyer, makes explicit some of the ways both the artists and he himself as a lawyer treat a trial as, literally, a performance:

Room 302 uses a courtroom to convey, through performance and the setting itself, ideas about truth and reality. The roles of the lawyer, witness, guard and court reporter are enacted and observed reading from scripts. Occasionally, two unseen voices can be heard directing the performers. With the court reporter overseeing the performance, scenes are redone, sounds and events recreated. In essence, a real event is recreated by the performance to produce a new reality; we judge the past by what we are shown in the present.

Trials are a process by which we attempt to recreate the past in the present so that judges can decide what happened. Rules of evidence guide the process and ensure the integrity of the recreation. For example, evidence must generally be a first hand account – the witness must have seen or heard the event themselves. Rumour, gossip, stories passing from one person to another, inferences, opinions – the ingredients of real life – are not admissible. Conventions and formalities govern the performances of the lawyers. The process is grounded in solemnity and dignity: the judge and lawyers wear robes, the judge is ‘my lady,’ and opposing counsel ‘my learned friend.’ . . .

The courtroom is like any theatre and the trial like any performance. The lawyers learn their lines and practice their performances. Witnesses are given advice about how to play their roles. Court clerks guide the performance, directing witnesses, introducing the judge and providing some narrative of events. Sheriffs usher the audience, provide security, and open and close the room.

It is within this context that I, as a defence lawyer, defend people. The prosecutor directs her witnesses to describe an account of a past event; I attempt to throw doubt on that account. Does the witness’ account make sense, is it reliable, is it exaggerated, or is the witness lying? I attempt to unravel the carefully prepared performances of the witnesses, to move them from their script. The witness is now improvising. Without a script frailties of perception and cognition are soon revealed, sources of contamination exposed, and bias or prejudice indicated. The judge relies on these raw ingredients to adjudge the performance; was it genuine, impartial, reliable, credible or exposed as exaggerated, embellished, unreliable and incredible?

My difficulty is convincing my students law isn’t just the rules, but a performance constrained by the rules, and that they have to not only learn the rules, but also then learn how to integrate the rules into meaningful depictions of the real life they and everyone else live outside the classroom

Law is, first and foremost, human drama.

Today in Contracts class I tried to get my students to understand they have to understand the reality of the case law they’re reading, not merely the rules the cases articulate. The rules only go so far. There are a lot of reasons understanding rules alone is a woefully inadequate way to understand the workings of any legal system, but I did try to get across that if the students would envision choosing, preparing, and questioning the witnesses described and quoted in the case they had read for today, they might understand why one witness in particular had been so effective.

The case was Frigaliment Importing Co. v. B.N.S. International Sales Corp., 190 F.Supp. 116 (S.D.N.Y. 1960), a case memorable in part because the Judge starts his opinion out like this: “The issue is, what is chicken?” The case really does turn on the definition of “chicken.” A U.S. exporter had contracted with a European buyer for the delivery of a large shipment of what the parties had described in their conversations and in the documents they exchanged as “chicken.” The seller delivered, in part, older stewing chickens rather than younger roasters or fryers. The latter are not only younger; they’re also tastier and more expensive. The buyer sued for the difference in price between the young chicken he thought he had bought and the old chickens he received.

The seller won. Among the witnesses was “Defendant’s witness Weininger, who operates a chicken eviscerating plant in New Jersey[. He] testified ‘Chicken is everything except a goose, a duck, and a turkey. Everything is a chicken, but then you have to say, you have to specify which category you want or that you are talking about.’” I tried to get across how effective Weininger must have been. I explained he might well have been like a guy out of The Sopranos — an everyday kind of New Jersey guy who runs a slaughterhouse grunting out in a loud and low voice this funny and telling line. All the students wanted to talk about was that the rule of construction “ut magis valeat quam pereat” ought to control.

Wrong. Rules don’t decide cases, and Latin rules of interpretation definitely don’t decide cases. Human beings decide cases, and human beings are swayed by vivid drama far more than they are swayed by technicalities. Even when we speak of disputes between institutions of finance that are decided by the testimony of accountants we are swayed by drama. There will be a lot of these kinds of cases (decided by the testimony of dueling accountants) in the near future. But there always have been. Back at the end of the last century, Nick Leeson — the self-described “rogue trader whose unchecked risk-taking caused the biggest financial scandal of the 20th century” — was the center of legal action against accountants “forced to explain how their audits of Barings failed to spot Leeson’s creation of a financial abyss capable of bringing down Britain’s oldest merchant bank.”  BNet at the time almost breathlessly explained:

This situation is by no means unique. Accountants from rival firms regularly square up to each other across the courtroom and in the offices of City law firms. The accountancy giants have been regularly pitched against each other in protracted legal battles since the 1970s.

If one realizes the pitched battles between accountants representing rival financial institutions and financial regulators can be described as high drama, one ought to explain that anything legal can, and is, high drama.

One shouldn’t be surprised, therefore, that even at the beginning if the last century the New York Times recognized that trials scenes are, almost inevitably, a regular occurrence in almost any kind of play.

Piecing together coherence

“Life is made up of a series of judgments on insufficient data, and if we waited to run down all our doubts, it would flow past us.”

– Learned Hand, On Receiving an Honorary Degree 137 (1939).

We all always want to know more. The worst discussions I have in class are those that begin with a suggestion from a student along the lines of, “Well, the plaintiff might have done X,” when there is no more reason to believe X happened than to believe the laptops of every student in the class were being used to take notes. In fact, the plaintiff might have done X, but the mere possibility is not enough on which to base a judgment or decision. If, on the other hand, there are facts or reasoning within the case that support a reasonable inference the plaintiff might have done X then perhaps X is worthy of being taken into account.

Juries never have all the facts. Wouldn’t it be nice if God could provide us his videotape, with all the angles the networks apply to sporting events.

But we make judgments, and we make decisions, and without our capacity to decide reasonably well based on a minimum of knowledge we’d be utterly lost. Life would flow right past us. The other day, writing about the reassignment of the Plain Dealer’s well-respected music critic, I wrote that “[a]s far as I know, such a reassignment breaches no duties, contractual or otherwise.” Do I know that for a fact? Of course not. I am not privy to the thoughts, discussions, or plans of any of the parties to the lawsuit. I don’t have a copy of the relevant contracts.  But what do I know? If there had been a breach of a contract or any other legal duty, Rosenberg’s lawyer would have alleged that breach.

In short, non-facts — things that don’t happen — are often as telling or even more telling than the things that happen. Will Girl Talk be sued for copyright infringement? I have no special insight. Some people are certain Girl Talk will be sued. Others believe Girl talk is protected by the doctrine of fair use.

Me? No one has sued Girl Talk yet. That speaks volumes. What else persuades me?  Girl Talk’s recordings use the samples they weave together to create works that can in no way be substituted for the sampled works. In short, as aural collages go, Girl Talk and Negativeland are as good as they get, and if I were interested in vindicating my right to charge for any sample of a recording I owned the copyright to, I’d stay as far away as I could from a lawsuit against those two acts.

But no doubt there is data out there I am unaware of that sooner or later will make me look like a fool.  That’s simply the nature of human existence.

Roberto Bolaño made a somewhat similar point in explaining the transmutation of life’s chaos into the order of stories:

Let’s say the story and the plot arise by chance, that they belong to the realm of chance, that is, chaos, disorder, or to a realm that’s in constant turmoil (some call it apocalyptic). Form, on the other hand, is a choice made through intelligence, cunning and silence, all the weapons used by Ulysses in his battle against death. Form seeks an artifice; the story seeks a precipice.

Proceedings of the Old Bailey, 1674-1913

I just discovered The Proceedings of the Old Bailey, 1674-1913, a fully searchable edition of the documents from the 197,745 criminal trials held in London’s central criminal court during that period.

According to John Langbein, the Proceedings are “probably the best accounts we shall ever have of what transpired in ordinary English criminal courts before the later eighteenth century”. Although initially aimed at a popular rather than a legal audience, the material reported was neither invented nor significantly distorted. The Old Bailey Courthouse was a public place, with numerous spectators, and the reputation of the Proceedings would have quickly suffered if the accounts had been unreliable. Their authenticity was one of their strongest selling points, and a comparison of the text of the Proceedings with other manuscript and published accounts of the same trials confirms that what they did report was for the most part reported accurately.

The database is a treasure trove for historians and the curious.  A random search for a topic of some interest to me, stock fraud, undearthed the case of “Richard Slocombe the younger, who was indicted for feloniously and deceitfully impersonating” his father, thereby securing for himself £50 of the £450 worth of “South Sea Annuities” owned by his father.  The records include transcripts and summaries of some of the trial testimony.  Here is the report of Mr. Slocombe’s testimony in his defense and the testimony on his behalf by his uncle.

Prisoner’s defence:

From what I had conceived and collected from discourse between my father and mother, this was mine upon my coming to age; my father is at these years reduced to a degree of insanity, he cannot recollect one half hour what he spoke the last; I am fully persuaded if my mother and sister were here, they would coincide perfectly in what I advance in every respect; as to the transfer, I signed nothing but my own name; if I had been conscious I was doing wrong, I should have made but one transfer, and took all the money at once; I did not act with any view of defrauding, therefore I most humbly hope you will take it in the most favourable consideration and construction; I am not particularly desirous of calling my father.

To his [Slocombe's] character:

John Pierce . I am the prisoner’s uncle; I never knew but that he always bore a good character, he was always very dutiful.

Richard Slocombe the younger was found guilty and was executed.

Registration Fraud? ACORN as the second coming of the Bolsheviks? Think again.

I’ve written already a couple of times about the hysteria being fomented over purported registration fraud purportedly being perpetrated by ACORN.

Here’s more:

The Chief Justice wishes he were Dashiell Hammet.

Coincidentally, yesterday in class a student asked me how legal writers use narrative to persuade audiences.  I gave the driest answer possible: it’s telling the facts in a way that swings the audience your way.  There’s no such thing as an objective story.  If you read a judicial opinion, as soon as the judge writes the facts it becomes apparent from the way the story is shaped which way he’s ruled.  But yesterday the Chief Justice John Roberts engaged in storytelling I don’t think any lawyer other than the Chief Justice could get away with.  Seven of the justices of the Supreme Court refused to hear an appeal from the Pennsylvania Supreme Court’s reversal of the conviction of a man for possession of a controlled substance.  The Pennsylvania Supreme Court had held that there was on the grounds that had not been “probable cause” to arrest the man.  In his dissent from the decision, Roberts wrote as follows:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.  Devlin spotted him: a lone man in the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack [cocaine] in the guy’s pocket. Head downtown and book him. Just another day at the office.

Is there evidence of voting fraud? Not if you look at all the facts.

Lawyers are skeptics not because they are innately skeptical but because they are trained by experience not to trust the first plausible explanation of a given set of facts.

ACORN is very much in the news these days. As the New York Post reports, “The vote of Darnell Nash, one of four people subpoenaed in a Cuyahoga County probe of ACORN’s voter-registration activities, was canceled and his case was turned over to local prosecutors and law enforcement, Board of Elections officials said yesterday. Nash had registered to vote repeatedly from an address that belonged to a legitimately registered voter, officials said during a hearing at which the subpoenaed voters were to testify.”

News like this provokes Sarah Palin to declare, “The left-wing activist group, ACORN, is now under investigation for voter registration fraud in a number of battleground states… We can’t allow leftist groups like ACORN to steal this election.”

Let’s take a look at this news. First, as my colleague Jonathan Adler points out, “Of course registration fraud and actual voter fraud are not the same thing.” (emphasis added) In other words, the fact someone is fraudulently registered does not mean that he will or can get away with fraudulently voting. In fact, there is no evidence in recent history of any voter fraud involving voting by fraudulently registered voters. Jon would counter that registration fraud makes it impossible or at least very difficult to prove voting fraud.

First, I’m not sure why that’s true. Voting fraud investigations would look into whether people who had voted were properly registered. The same evidence available in the prosecution of registration fraud would therefore be available.

Second, it’s at least suspicious that the eruption of investigations and prosecutions of alleged registration fraud shortly before an election follows so closely the pattern that David Iglesias, the former U.S. Attorney in New Mexico, points to as the background of his firing by the Bush administration. Having investigated such allegations and found them inadequate to support any prosecution for voting fraud, Iglesias was fire, apparently for not following the Republican script. Now the Mukasey Justice Department appointed a special prosecutor to look into the firing of Iglesias and several other U.S. Attorneys.

Iglesias has explained that he was pressured to bring these types of voter fraud claims by Republicans in New Mexico shortly before elections in order, in his view, to influence the elections. He investigated the claims and concluded there was no basis for prosecution. Is there suddenly now evidence for identical prosecutions?

So is there widespread work to get enough fraudulent voters on the rolls to elect Obama? I doubt it. In fact, I am prepared to say, no way.

Addendum:

U.S. Department of Justice crime statistics cast doubt on the existence of widespread voter fraud. According to a report by the Justice Department’s Criminal Division on prosecutions between October 2002 and September 2005, the Justice Department charged 95 people with “election fraud” and convicted 55. Among those, however, just 17 individuals were convicted for casting fraudulent ballots; cases against three other individuals were pending at the time of the report. Further, on April 12, 2007, The New York Times reported, “Five years after the Bush administration began a crackdown on voter fraud, the Justice Department has turned up virtually no evidence of any organized effort to skew federal elections, according to court records and interviews.”

Additionally, a 2007 report titled “The Truth About Voter Fraud” by New York University’s Brennan Center for Justice stated: “[W]e are aware of no recent substantiated case in which registration fraud has resulted in fraudulent votes being cast”:

There have been several documented and widely publicized instances in which registration forms have been fraudulently completed and submitted. But it is extraordinarily difficult to find reported cases in which individuals have submitted registration forms in someone else’s name in order to impersonate them at the polls. Furthermore, most reports of registration fraud do not actually claim that the fraud happens so that ineligible people can vote at the polls. Indeed, we are aware of no recent substantiated case in which registration fraud has resulted in fraudulent votes being cast.

How do we explain human beings?

Annette Gordon-Reed, the author of The Hemingses of Monticello: An American Family, is a lawyer as well as a historian. The two avocations mesh well, especially in trying to give coherence to seemingly incoherent ideas. As pointed out in Newsweek, for example, people have floundered in the face of the seemingly inexplicable, including “the idea that Jefferson, a lifelong proponent of emancipation, could own slaves and sustain an intimate relationship with a woman who was not only his property but his dead wife’s half-sister.” Gordon-Reed’s training as a lawyer is the ideal preparation for developing persuasive explanations for what seems “crazy” because when it gets down to it we’re all a bit crazy:

“‘The first thing you learn in law school is people are crazy,’ says [Gordon-Reed], who also teaches history at Rutgers and law at New York Law School. ‘They’ll come into your office and explain their motivation, and it will be totally a lie. They don’t even understand themselves what their motivations are. It’s not all going to fit.’ Historians may think that because their subjects are dead, ‘you don’t have to deal with the consequences of their shattered lives if you’re not for real.’ Lawyers don’t have this luxury. ‘We’re training people to deal with people’s lives. Somebody’s going to go to jail, somebody’s going to lose a child. You have to be for real.’ Which may be how Gordon-Reed takes the stuff of Sally Hemings’s life-the quotidian and the epic-and makes it indelibly real.”

September 11, 1973

September 11 is a date that resounds with infamy, and not only in the way most of you think.  On September 11, 1973, Augusto Pinochet, with the aid of the CIA, overthrew the democratically elected government of Salvador Allende, imposing a brutal military dictatorship and giving Milton Friedman and his acolytes their first laboratory for the application of their truly radical free market economics. I don’t mean that capitalism is radical.  I mean that the capitalism of Friedman and his followers was and, even though today it has come to represent the common wisdom today, still is.

Chile, economics, and even September 11 are obviously off-topic for me, but I  couldn’t help but think I had to bring it up after listening on PRI this afternoon to  the story of American Mishy Lesser, who was in Chile on September 11, 1973 and, hunted by the newly installed military dictatorship, was taken in, along with her boyfriend, by a family with no particular political commitments.  They subsequently helped her get out of the country, but for their efforts were arrested, imprisoned, and tortured.  Lesser’s boyfriend ended up as one of the legion of Chilean “disappeared.”  Thirty five years later, Lesser returned to Chile to find the family who gave her sanctuary so that, among other things, she could find out why they did risked so much for a stranger who brought them so much tragedy.  Go here to listen to her story.

We all, always, are figuring out the stories the world is telling us.

Lawyers understand better than most that putting together a story in one’s mind is the most common everyday act we all engage in. People speak of “proof” and “facts” as if they’re certainties, but lawyers know that “proof” is merely evidence that can only be understood in light of other evidence and that “facts” are not hard and fast things inferred from the evidence. As I tell my students, “We never have God’s videotape.”

But we need to understand the evidence we confront as hard and fast enough to support the decisions we always have to make, whether we’re jurors or just ordinary people making the decisions ordinary people make all the time. And we’re not bad at it; we come to the best story we can given the facts and move forward. The process may almost be like natural selection: our decisions about how to interpret the evidence we have are tested by the consequences those decisions entail, and so our interpretations (we hope) get better as we see our decisions succeed and fail.

In short, the world is a story just like a news story, a movie, or a novel is. And those of us who engage in storytelling know more than a few things about how to put together the evidence to sway our audience in the way we want our audience to be swayed. I wrote the week before last about one pattern humans find compelling.

There are many, many more effective methods of telling stories. Tell the story from the point of view of the person with whom you want your audience to identify. Move what you emphasize to the front of your story, to the front of your paragraphs, and to the front of your sentences. Spend more time on what you want to emphasize. Stay credible. Take what you want to de-emphasize and bury it in the middle of your story, in the middle of a paragraph, and in the middle of a sentence. Better yet, surround that “bad” evidence by good evidence at the beginning and ends of those paragraphs and sentences. Do mention the “bad” facts (if you don’t, some adversary will, which will considerably damage your credibility), but mention them as briefly as possible.

I could go on, but that’s enough for today.

One last thing: how do you decide about the evidence regarding Sarah Palin?

Is she a true agent of change? She’s taken on the establishment in traditionally corrupt Alaska to become one of our ruling party’s rising stars and walks the walk when the real world we all struggle with confronts her. She ran for governor and won against the former Senator who had appointed his own daughter to succeed him in the Senate and is more popular with her constituents than any other governor is among his or hers. When she is faced by the kind of unanticipated smack in the face Reality often doles out — as she has been by her daughter’s pregnancy, a private matter that anyone could face — she shows that she stands by her principles. She opposed the “Bridge to Nowhere,” the project which is synonymous with business as usual in Washington, and she is a political enemy of the corrupt Senator from her own party, Ted Stevens. In short, John McCain showed he really is a true maverick in choosing her.

Or is she this year’s Thomas Eagleton and Geraldine Ferraro rolled into one? She’s a charismatic Christian creationist who would outlaw abortion even in cases of rape and incest. She was a member of a political party that stands for the secession of Alaska, the abolition of all property taxes, and the privatization and exploitation to the hilt of all public lands within the new country. She was elected governor of a state so unpopulated she only needed 115,000 votes to win, and so, while she may be popular there, her popularity hardly shows she is representative of “real” Americans. How could it? She has been governor of that state for less than two years. She believes in abstinence-only education, yet the ineffectiveness of that policy in fighting teen pregnancies is highlighted by her own 17 year old daughter’s pregnancy. She supported the “bridge to nowhere” before she opposed it. She didn’t “take on” the corrupt Ted Stevens, as Lindsey Graham claimed, but, rather, led a major fundraising effort for him. She’s even under investigation for pressuring Alaska’s commissioner of public works to fire the state trooper who was engaged in an acrimonious custody battle with her sister. In short, she is Exhibit A for the defects in John McCain’s decision-making and judgment.

Addendum: from Hilzoy at Obsidian Wings: “Sarah Palin was not registered as a member of the Alaska Independence Party, though TPM Muckraker found that her husband was.“

Barney Smith not Smith Barney

Creativity — legal, artistic, mechanical, scientific, or political — is often (always?) not creation but, rather, the selection and arrangement of what is already around us every day, unnoticed, until it is held up and discovered to be exactly what is needed to do what needs to be done.

Effective Storytelling, McDonald’s Coffee, and the Law

That effective stories arise from a relatively limited set of recurring patterns is no secret. The existence of these archetypes may be one more blow to the Romantic myth that creativity grows out of individual genius, but, as regular readers of this page will learn, I don’t believe creativity arises, divinely inspired, from individual geniuses.

But creative lawyers know the patterns of effective stories, as I was reminded again the other day when I read Alexander Star’s review of Charles Tilly’s Credit and Blame. Star writes:

Reflecting on tort cases, Tilly suggests that we possess something like an “all-purpose justice detector.” When something good or bad happens, we measure the magnitude of the change, identify an agent who helped bring it about and assess how the agent’s skills, knowledge and intentions figure in the result. How much blame does the Ford Motor Company deserve when an Explorer rolls over on the highway? The answer, Tilly writes, depends on how badly the driver or passenger was injured, whether Ford should have known the crash was likely to happen and whether it intended to build the car the way it did. Lawyers argue this way in civil suits, but couples apply similar rules of thumb when they argue over who left the car windows down.

I think it is very astute of Tilly to identify this pattern of blame in tort cases: (1) how badly was the plaintiff injured, (2) should the defendant have known the injury was likely to happen, and (3) did the defendant intend to create the likelihood of the injury.

An excellent example of this pattern at work is the infamous McDonald’s Coffee Case, the inspiration for the Stella Awards, which “were inspired by Stella Liebeck, who in 1992, aged 79, spilled a cup of McDonald’s coffee onto her lap, burning herself. A New Mexico jury awarded her $2.9 million dollars in damages.”

Just last week at physical therapy for rapidly improving sciatica (thanks to my outstanding physical therapists), I was teased again with the way the McDonald’s Coffee Case exemplifies the supposed idiocy of the personal injury system. The physical therapists know I’m a law professor. How can I blame them? Tilly’s pattern explains their reactions perfectly: they must think the following: (1) How bad could the injury have been? We’ve all spilled coffee on ourselves. (2) Even if the injuries were bad, how could McDonald’s have known? Again, we’ve all spilled coffee on ourselves, and who among us have suffered burns meriting $2.9 million in damages? (3) McDonald’s sells coffee! How could it possibly have intended to burn Ms. Liebeck, when all it intended was to caffeinate her?

But a jury awarded Ms. Liebeck $200,000 in compensatory damages; this amount was reduced by 20 percent (to $160,000) because the jury found her 20 percent at fault. The jury also awarded her $2.7 million in punitive damages — but the judge later reduced that amount to $480,000, or three times the “actual” damages that were awarded. And that amount was compromised in a confidential settlement that resolved the appeal.

Were the jurors, judges, and lawyers who resolved this case simply insane? Are all the people who refer to the case when decrying the U.S. justice system just so much smarter than those people?

Ah, there’s another way of looking at the story, the way lawyers, juries, and judges look at cases they actually decide: through the evidence, and the evidence (as with the other facts from Ms. Lubieck’s case in this posti, from the True Stella Awards site) , viewed through Tilly’s paradigm, tell a very different story:

(1) How badly was Ms. Lubieck injured?

She ” was burned badly (some sources say six percent of her skin was burned, other sources say 16 percent was) and needed two years of treatment and rehabilitation, including skin grafts. McDonald’s refused an offer to settle with her for $20,000 in medical costs.”

(2) Did McDonald’s know the injury was likely to happen?

From 1982 to 1992, McDonald’s coffee burned more than 700 people, usually slightly but sometimes seriously, resulting in some number of other claims and lawsuits.

(3) Did McDonald’s intend to create the likelihood of injury?

McDonald’s quality control managers specified that its coffee should be served at 180-190 degrees Fahrenheit. Liquids at that temperature can cause third-degree burns in 2-7 seconds. Such burns require skin grafting, debridement and whirlpool treatments to heal, and the resulting scarring is typically permanent.

Witnesses for McDonald’s admitted in court that consumers are unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s required temperature, admitted that it did not warn customers of this risk, could offer no explanation as to why it did not, and testified that it did not intend to turn down the heat even though it admitted that its coffee is “not fit for consumption” when sold because it is too hot.

I’m not arguing that Ms. Liebeck’s case constituted the epitome of justice. As William Gaddis wrote, “Justice? – you get justice in the next world, in this world, you have the law.” What I am saying is that we are human, and we respond to the evidence we are told in the way we are told it. Effective lawyers know these truths. All truly creative people do.