The music industry, book publishing, and now Lexis and Westlaw?

Our technological revolution is taking down the music industry as its operated for the last 80 years or so, the book industry as its operated for the last 150 years or so, and now there are plenty of people who think that internet in general and Google Scholar in particular will take down the online legal research regime that has only existed since a couple of years before I started law school in 1981 — Stephen E. Arnold writes:

What is the financial outlook for the LexisNexis-type and Westlaw-type firms? Short term there won’t be much change. Over time, life gets tougher. I do quite a bit of work in online information, and I am not sure these outfits can adapt to the Google’s legal push.

Corporations = individuals? Confusions in economic theory and First Amendment jurisprudence

Metaphors are tricky things. Corporations are “persons” under the law in many respects, just as you and I are. And we treat corporations as rational individuals in the market. These figurative equations of legal fictions with human beings certainly have their utility, but they easily can be pushed too far. Individuals at AIG were making individual fortunes based on the income they were bringing into AIG for selling credit default swaps. Those individuals were making and would retain those fortunes even if, as turned out to be the case, AIG might not have sufficient funds to pay off the obligations those credit default swaps imposed on AIG. In other words, if one treated AIG as a rational person, one would suppose AIG would never expose itself to a real risk of obligating itself to pay more than it had in reserve. But AIG is merely a corporation, and the individuals actually making the decisions on behalf of AIG had every incentive to get what they could, subject AIG to irrational risk, and be able to walk away with their tens of millions of dollars.

And now the Supreme Court has overturned over 100 years of precedent permitting limits on corporate contributions to political campaigns because such limits constrained free speech and, according to the truism announced by Justice Kennedy’s majority opinion, ”Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” But corporations don’t make decisions about how to spend money on campaign contributions — the individuals who control the corporations do. So what the Supreme Court has done is to remove any limits we might put on corporate CEOs to spend corporate money to advance the interests that indubitably are intended to redound to the benefit of those individual CEOs. I wouldn’t limit the ability of CEOs and shareholders to make individual contributions to political campaigns, but why are we treating purely legal entities like they are made of flesh and blood?

As Buzzflash pointed out recently, Thom Hartmann in his book Unequal Protection explains:

Prior to 1886, corporations were referred to in U.S. law as “artificial persons.” but in 1886, after a series of cases brought by lawyers representing the expanding railroad interests, the Supreme Court ruled that corporations were “persons” and entitled to the same rights granted to people under the Bill of Rights. Since this ruling, America has lost the legal structures that allowed for people to control corporate behavior.

Who needs public services in case of disaster? Not the rich . . .

The market strikes again: worried about help in the event of disaster? Well, with a lot of money, you’ve got nothing to worry about – as Naomi Klein writes, if you’re worried about wild fires burning down your home, you can buy private fire fighters who will stand by and watch your neighbors’ home go up in flames, or you can even buy larger scale disaster relief:

[Pellston, Michigan] is about to become the headquarters for the first fully privatized national disaster response center. The plan is the brainchild of Sovereign Deed, a little-known start-up with links to the mercenary firm Triple Canopy. Like HelpJet ["guarantees its well-heeled members a seat on a chartered jet out of the hurricane zone"], Sovereign Deed works on a “country-club type membership fee,” according to the company’s vice president, retired Brig. Gen. Richard Mills. In exchange for a one-time fee of $50,000 followed by annual dues of $15,000, members receive “comprehensive catastrophe response services” should their city be hit by a manmade disaster that can “cause severe threats to public health and/or well-being” (read: a terrorist attack), a disease outbreak or a natural disaster. Basic membership includes access to medicine, water and food, while those who pay for “premium tiered services” will be eligible for VIP rescue missions.(Hyperlinks added.)

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

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

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

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

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

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

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

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

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

Here’s legal innovation: YouTube Broadcast of the Proposition 8 Trial. But will it happen? Stay tuned.

There are few more important and timely issues concerning innovation and law than the impact of the internet on courts. Courts have always been considered public institutions anyone could walk into to see court proceedings or to look themselves at court files. But now making something “public” means making it available to anyone at his or her own computer, and the inherent resistance to change that resides in any well-established institution makes courts and those who don’t want their legal stands exposed to the brightest possible public lights reluctant to embrace this new notion of public access.

So, as CNN reports, controversy and legal wrangling has erupted over the decision by “the federal judge who is hearing appeals of California’s Proposition 8 this week ruled that the proceedings could be shown — albeit in delayed fashion — on YouTube.”  But opponents of same-sex marriage, outlawed by Proposition 8, appealed the judge’s order and yesterday the Supreme Court postponed the online broadcasts at least until tomorrow (when, it is hoped, the Supreme Court will rule on the issue).

Jon Davidson, legal director of the pro-gay rights Lambda Legal, argued that opponents of same-sex marriage want to keep the trial as much out of the public eye as they can because public debate on same-sex marriage actually increases support for it. In addition, he argued that the risks of true public access to the proceedings is way overblown:

“One of the things we find on the marriage issue, but really on all issues in response to gay rights, is that the more discussion there is — the more conversation, the more people learn — the more likely it is that gay people are going to do well,” Davidson said.

Davidson said posting the trial on YouTube wouldn’t increase the potential for witnesses to be harassed, saying that anyone can read news reports after the fact to find out who spoke and what they said.

Besides, any effort to block new-media coverage of the hearings is already too late, Davidson said. He said people in the courtroom for opening arguments Monday were posting live updates to Twitter throughout.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If you understand the uses and limits of maps, you can begin to understand the uses and limits of legal rules (and it doesn’t hurt to know the offside rules in soccer and hockey)

Jeff Lipshaw of Suffolk Law School has been asked to teach Suffolk’s six credit contracts course next year and has “been puzzling . . . about . . . teaching philosophy.” As he claims, “Contracts is the often the bane of the first year experience, and I am thinking about hitting the reasons head on.” I think Lipshaw’s point is the same I’ve been trying to get across frequently in this blog — learning law (and perhaps, especially, contract law)  is not a matter of learning rules you apply to the world, thence to go on your merry way as a lawyer who knows and understands law. Rules are useful guides, but different rules are useful in different situations; when a situation changes, a particular rule may be useless — it may be too specific, and not take into account specifics never contemplated when the rule was formulated, or it may be too general to be of any practical use.

Lipshaw writes (emphasis added):

I’ve concluded instead that the way to approach the subject (and relieve some student angst at the same time) is to reject at the outset the idea that what they are learning maps on the real world.  It is more helpful to think of contract law as most casebooks begin – with the idea of the objective law of contracts, or, as we say more explicitly in areas like partnership, the default rules upon which the legal consequences of a binding promise will be imposed on parties after the fact when indeed there is no subjective evidence of an intent to be bound at all, or legally, or on what specific terms. . . . Said with more jargon, contract law may or may not map well onto the reality of private ordering, and the mistake most students make is to try to make the map work. No – an integrated law of contracts, if one exists, is a figment of the . . . imagination, a way of trying to make unified sense of the whole of private ordering, whether that sense-making is by way of formalism or contextualism (or efficiency or the promise principle, to bring the debate forward in time).

Put otherwise, if the reality of private ordering is metropolitan Boston, contract doctrine is a map, based on the mapmaker’s view of what is important.  But you could have a road map of major highways, a topographic map, a detailed street map, a map of population densities, etc.  This is merely one map, or several competing maps. . . . .

Finally, the difficulty with putting aside whatever sense of reality we might have, and reconstructing the rules of the model (or game?) on their own is a little like trying to master the rules of cricket without making analogies to baseball, or the rules of rugby without making analogies to American or international football.  Let’s say you are playing cricket, and you do something that cause the other team to cry “foul!”  You have to make your argument why what you did was legal in cricket terms, not baseball terms.  That doesn’t mean there couldn’t have been other ways to play cricket, or that the world would be better off if we interpreted the rules of cricket differently, but to win the argument we have to fashion it in a way that appears to be consistent with cricket.  Contract law is the set of rules making up the objective contract litigation game, and some arguments based on those rules are cricket, and some are not.

A map that I draw you to get you to my house will likely be of little use in helping you navigate your way to other places in Ohio, but it will be very helpful as a means of getting you to my house. Then again, most maps of Ohio I’ve seen would be of little use in getting you to my house (which is on a road leading from one side street ending in 2 other side streets, none of which lead to a street (much less a highway) of any significance). And I could explain to you how being offside in soccer is akin to being offside in hockey, and doing so would help you understand the common purposes of the 2 rules (to avoid cherry picking), but when I’m arguing about being offside in soccer I better not be using rules and jargon from ice hockey.

Or, if you’d like to get even more involved in considering the role of maps in understanding the uses and abuses of rules, it’s well worth considering an article written by Boaventura De Sousa Santos, Law: a Map of Misreading. Toward a Postmodern Conception of Law, 14 J. of Law and Society 279, 282-283 (1987)(footnotes omitted; hyperlinks added):

UNDERSTANDING MAPS

The main structural feature of maps is that in order to fulfill their function they inevitably distort reality. The great Argentinian writer Jorge Luis Borges has told us the story of the emperor who ordered the production of an exact map ofhis empire. He insisted that the map should be exact to the most minute detail. The best cartographers of the time were engaged in this important project. Eventually, they produced the map and, indeed, it could not possibly be more exact, as it coincided point by point with the empire. However, to their frustration, it was not a very practical map, since it was of the same size asthe empire.

To be practical a map cannot coincide point by point with reality. However, the distortion of reality thus produced will not automatically involve the distortion of truth, if the mechanisms by which the distortion of reality is accomplished are known and can be controlled. And, indeed, that is the case. . . . As the American cartographer Mark Monmonier put it:

[A]ll advantages and limitations of maps derive from the degree to which maps reduce and generalise reality, compress or expand shapes and distances and portray selected phenomena with signs that communicate without necessarily resembling visible or invisible characteristics of the landscapes. The three elements of a map are interdependent. Scale influences the amount of detail that can be shown and determines whether or not a particular kind of symbol will be visually effective.

Maps should be convenient to use. There is thus a permanent tension in maps between representation and orientation. These are contradictory claims and maps are always unstable compromises between them. Too much representation may hinder orientation, as we saw in Borges’s map. Inversely, a very accurate orientation may result from a rather poor and elementary representation of reality.

When you are invited to a party in a house whose location you do not know, the host will probably draw a map which will be very effective in orienting you though very inaccurate in representing the features of the environment along the way to your destination. One more example: some of you may have seen medieval portolans, those maps of ports and coasts well-renowned in the Middle Ages which, though very poor as far as representation of the globe goes, were very effective in orienting navigators .at sea. There are maps that solve the tension between representation and orientation in favour of representation. These I would call, borrowing from French cartography, image maps. Other maps solve the tension in favourof orientation. These are instrumental maps.

I would like to suggest that this dialectic of representation and orientation applies to law as much as it applies to maps. In the analysis of .the relations between law and society we should [consider] the simple paradigm of correspondence/non-correspondence. In the following I will linger on maps a little while to analyse in more detail each one of the procedures through which maps distort reality. In the process I hope to interest you in the fascinating world of maps. As Josef Konvitz has said, “lt is a supreme irony that maps, though they are one ofthe most common cultural metaphors, are still far from occupying the place they deserve in the history of mentalities.”

One common distortion of which most of us remain unaware is the ways the traditional mercator projection of the map of the world grossly distorts the relative sizes of the earth’s various landmasses. Below is the Arno Peters map , which, as Sirius Bark of Temple 3 explains “isn’t perfect (every map (and rule) creates some distortion), but . . . does address some of the overall size distortions which dominate our more well-known Mercator projections” (emphasis and hyperlinks added):

Legal Practice and Legal Scholarship and Law School Reputations: Ships Passing in the Night.

One of the most interesting aspects of the U.S. legal system is that, as a common law system (as opposed to the civil law system prevailing in the vast majority of the non-Anglo-American world), the practice of law and the activities of legal scholars exist in almost entirely separate realms. Having had worked for well over a decade in each of the realms of legal practice and legal academia, the following account, from Wikipedia, reflects my own experience that legal scholarship in the U.S. legal system has little impact on the actual practice of law:

In common law jurisdictions [such as the U.S.], legal treatises compile common law decisions, and state overarching principles that (in the author’s opinion) explain the results of the cases. However, in common law jurisdictions, treatises are not the law, and lawyers and judges tend to use these treatises as only “finding aids” to locate the relevant cases. In common law jurisdictions, scholarly work is seldom cited as authority for what the law is. When common law courts rely on scholarly work, it is almost always only for factual findings, policy justification, or the history and evolution of the law, but the court’s legal conclusion is reached through analysis of relevant statutes and common law, seldom scholarly commentary.

In contrast, in civil law jurisdictions, the writings of law professors are given significant weight by courts. In part, this is because civil law decisions traditionally were very brief, sometimes no more than a paragraph stating who wins and who loses. The rationale has to come from somewhere else, and the academy often filled that role. As civil law court decisions move in the direction of common law reasoning, it is possible that this balance may shift.

A footnote to this explanation adds: “At least in the U.S., practicing lawyers tend to use ‘law professor’ or ‘law review article’ as a pejorative to describe a person or work that is insufficiently grounded in reality or practicality – every young lawyer is admonished repeatedly by senior lawyers not to write “law review articles,” but instead to focus on the facts of the case and the practical effects of a given outcome.”

I do not mean to point out the stereotypical disregard for legal scholarship among practicing lawyers to disparage legal scholars. Rather, I mean to emphasize what I wrote yesterday: it is the evidence in each case that persuades the legal decision maker what the just result is in each case. The legal rules of the common law system are not abstract principles of justice pronounced from on high to produce justice in each and every situation; instead, they are the refined products produced by centuries of case-by-case efforts to achieve just results based on the specific evidence presented in each of those cases. Thus, those legal rules are subordinate to the case-by-case efforts to achieve justice, not the infallible determinants of just outcomes in all future cases. As I wrote yesterday in suggesting that my students in analyzing legal disputes first consider what the dispute is about, then consider the evidence and its persuasiveness in helping them as human beings determine a just result in that dispute, and only then employ the legal rules to articulate as legal professionals speaking in the language of their technical expertise to explain the justice of that result:

In other words, the legal rules and their proper application arise from the evidence the parties bring to bear. The rules do not predetermine disputes that are predictable before they arise. Instead, they provide the legal language (developed over the centuries’ long development of the common law) in which to couch the just conclusions compelled by the evidence.

In explaining the practice of the common law, I do not mean to denigrate U.S. legal scholarhip. But I do mean to put it into the proper context within our legal system: scholars strive to develop generalizations that govern all cases. Courts, on the other hand, decide individual cases involving individual disputes between individuals who have personal stakes in those disputes. In doing so, the courts do their best to do justice in those individual cases. Scholarly generalization, inevitably, conflicts to a considerable degree with that individual effort to find justice between individuals involved in specific disputes.

And yet the reputation of law schools is weighted enormously in favor of the evaluation by law professors of the legal scholarship of other law professors. For law students, the vast majority of whom go to law school to become lawyers, the basis of these reputations must cause some consternation if there is any truth to what I have written above about legal scholarship’s distance from and irrelevance to legal practice. But here it is, from Brian Leiter, one of the most respected authorities on the evaluation of law school quality. What measures a law faculty’s quality? Not success as a lawyer. Instead:

Faculty Quality (70% of [a law school's] final rank): the rank in this category is based on three criteria: scholarly productivity; scholarly impact of faculty work; and reputation. More precisely, 25% of the rank is based on the per capita rate of publication for the period 1998 through summer 2000 of,

1. articles in the ten most frequently cited student-edited law reviews (Yale Law Journal, Harvard Law Review, Stanford Law Review, University of Chicago Law Review, Columbia Law Review, Michigan Law Review, California Law Review, University of Pennsylvania Law Review, and Texas Law Review, plus New York University Law Review, which is less-often cited but benefits in prestige from being affiliated with a top law school;

2. articles in ten leading peer-edited law journals (Administrative Law Review, American Journal of Comparative Law, Constitutional Commentary, Environ- mental Law, Journal of Legal Studies, Law & Contemporary Problems, Law & Social Inquiry, Legal Theory, and Tax Law Review);

3. books from the three leading law publishers (Aspen, Foundation, West); and

4. books from the six leading academic presses in law (Cambridge, Chicago, Harvard, Oxford, Princeton, Yale).

Another 25% of the faculty quality rank is based on the per capita rate of scholarly impact for the top quarter of each faculty based on citations to faculty work on the Westlaw JLR database as of August 2000. Finally, 50% of the faculty quality rank is based on the subjective academic reputation of the school based on a fall 1999 survey of academics conducted by U.S. News & World Report.

Each measure of faculty quality has advantages and limitations, but together they promise to present an informative picture. The rationale for the particular weightings, and the details of the study methodology, can be found in “Measuring the Academic Distinction of Law Faculties.”

So there you have it. The law schools with the best reputations are the law schools with law professors who write law review articles read by other law professors but that have little if any impact on the actual product of the U.S. legal system.

Then again, I am on record expressing my opinion that the most reputable of law professors at the most reputable of law schools have, given the opportunity, shown themselves to the worst of lawyers.

Legal education is monumentally difficult. Legal “rules” are not “rules” in the sense most people understand them; they are, instead, formulations intended to reach just results based on the evidence in individual lawsuits.

In making the point set forth in the title of my post, it is worth repeating the message I sent this morning to my Contracts students, who are in the midst of studying for the first semester exams. My students are in the midst of making the transition from the lay understanding of legal “rules” as “rules” of the sort that govern the outcome of scientific experiments to the professional understanding that legal “rules” are professional terms of art used to articulate arguments intended to achieve justice in individual cases. It is not an easy transition to make, and it is a transition from a way of perceiving rules that seems to dominate the thinking of the vast majority of mankind to a way of perceiving rules as man-made constructs intended most of all to do justice to individuals.

As I wrote to my students, focusing on legal issues relating to the interpretation of disputed contract terms (the last subject of our semester’s study):

In trying to understand the law we are applying, consider the teachings of the teachings of the Chuang-tzu, a collection of writings from the fourth, third and second centuries B.C.:

Great understanding is broad and unhurried; Little understanding is cramped and busy.

Trying to understand the rules that pertain to contract interpretation will not come through a cramped and busy effort to memorize the “parol evidence rule” and the rules regarding when evidence outside of a writing is permitted to interpret the writing.

Instead, understanding contract interpretation will come first from from a broad and unhurried consideration of what language the parties are disputing the interpretation of. Then you must understand why each party considers his interpretation the correct one. What evidence does each party have that his interpretation is correct? How persuasive do you consider that evidence?

If one side’s interpretation is more persuasive, that will likely be the correct one. One must first consider the writing setting forth the purported agreement, the purposes of the purported agreement, the situations of the parties, and any other evidence that may bear on the meaning of the written agreement. Only after considering all these matters (which can range far and wide) and coming to some individual, human understanding of whether one person’s interpretation or the other’s is more persuasive can on go back to the rules to and use those rules to show how the rules and the evidence together will lead to that more persuasive result.

Thus, for example, in Thompson v. Lilly, 26 N.W. 1 (Minn. (1885), the buyer of logs insisted the seller did not supply logs of as high a quality as the parties had agreed the seller would provide. The parties had written the following brief agreement:

AGREEMENT.

Hastings, Minn., June 1, 1883.

I have this day sold to R. C. Libby, of Hastings, Minn., all my logs marked ‘‘H. C. A.,’’ cut in the winters of 1882 and 1883, for ten dollars a thousand feet, boom scale at Minneapolis, Minnesota. Payments cash as fast as scale bills are produced.

[Signed] J. H. Thompson,

Per D. S. Mooers.

R. C. Libby.

The Minnesota Supreme Court concluded that “[t]he written agreement . . . , as it appears on its face, . . . purports to be a complete expression of the whole agreement of the parties as to the sale and purchase of these logs, solemnly executed by both parties.” Thus, the court concluded that the buyer could not prevail on his claim that he and the seller had in fact agreed that the logs he had purchased were supposed to be of a higher quality than those logs the seller actually supplied.

But there really is nothing in the written agreement itself to preclude the reasonable possibility that the parties had also agreed that the logs marked “H.C.A” would be of the higher quality the buyer had not received. What is it about that 3 line agreement that suggests that it is the exhaustive statement of all the terms the parties agreed to?

Admittedly, there are a few things you might point to to support the court’s conclusion: the writing states price, it states the identifying marks on the buyer’s logs, and it states the delivery place and times. We might infer that if it includes all of those things it must include everything the parties had agreed upon.

But are we to suppose that in 1883 Minnesota in a sale between a logging company and a lumber buyer the technical requirements of the parol evidence rule were foremost in the buyer’s and seller’s minds? And are we to suppose the 3 line agreement was intended as the height of formality. And when, for example, would “winter” begin in Minesota — November, December 21, at first frost? To suppose the seller of logs and the buyer of logs would have put into the writing something they considered important is to be naive about how commercial transactions really take place (even today in the vast majority of commercial transactions, and even among investment bankers in the high flying world of Wall Street finance in which I once practiced).

In other words, if you merely start with the proposition that the parol evidence rule excludes the consideration of evidence regarding the content of a contractual agreement that is not contained in a final and complete written record of the agreement, you hardly have a convincing argument that the decision in Thompson v. Lilly must have been correct.

But if you look at the evidence recounted in the opinion (and the absence of certain evidence) the wisdom of the result (if not the clarity of the reasoning) becomes much, much more apparent — the buyer is claiming the agreement included a promise that the logs the seller was providing would be of a higher quality than the logs that were delivered. And while the writing in and of itself doesn’t inherently exclude that possibility in any conclusive way I can fathom, what evidence does the buyer have that the agreement included a promise of higher quality logs? Only the buyer’s own self-serving testimony. There is no corroborating testimony from, say,  others in the logging trade in 1883 Minnesota that an agreement on quality like that insisted upon the buyer would be expected. There is no documentary evidence outside of the 3 line agreement regarding the parties’ negotiations. There is no evidence that the buyer’s purposes for buying the logs should have indicated to the seller that higher quality logs were what the buyer expected. There is no indication the price the buyer agreed to pay reflects a market price for logs of a higher quality than that which he received.

In short, apart from the buyer’s self-serving testimony, there is no evidence of any sort that any agreement on the quality of the logs had been reached. In the absence of any evidence other than the buyer’s self-serving testimony in support of his position, the court conclusion that the three-line agreement contains all the material terms of the agreement does in fact seem convincing. If, on the other hand, others in the trade suggested the quality of the logs would not have been included in the written agreement or that the price in the agreement reflected a price for higher quality logs, the court would have had a much more difficult time suggesting the three line agreement contained all the material terms of the agreement.

Thus, the parol evidence rule does its job in this case — it prevents the dispute from ending up as a trial in which the buyer’s uncorroborated and self-serving sworn statements will be weighed by a jury against the writing and the seller’s sworn statements. But if we merely considered the 3 line agreement without considering what other evidence the buyer had (or did not have) in support of his position, the parol evidence rule in and of itself would have provided a very poor guide to determining whether there would be any justifiable basis for a trial on the buyer’s claims.

To engage in the extra effort of trial in Thompson v. Lilly would have been unreasonable as a matter of the administration of justice in that there seems no persuasive reason in the first place to believe the buyer. Trials are expensive and burdensome affairs. And keeping the case from trial prevents a jury from being persuaded by improper factors (such as preferring the buyer as a person to the seller). Thus, the court invoked the technical rule — the parol evidence rule — to produce an outcome that seems fair, just, and in accord with a common sense view of the evidence.

In other words, the legal rules and their proper application arise from the evidence the parties bring to bear. The rules do not predetermine disputes that are predictable before they arise. Instead, they provide the legal language (developed over the centuries’ long development of the common law) in which to couch the just conclusions compelled by the evidence.

So, as I explained to my students, when you are trying to figure out on an exam how to answer a question, consider first: what question you are you trying to answer. Then consider what evidence you have from each side of the dispute that helps persuade one way or another in answering that question. Then weigh that evidence and consider what we are primarily trying to determine in contract law: what the parties intended to agree to.

Then, and only then, use the rules to structure the presentation of your understanding of the proper resolution to the dispute. You are likely being asked to present your personal and human understanding as an intelligent adult being asked to solve a previously unsolved problem for the first time in your life. You are not merely being asked to repeat material your professor asked you to learn but to apply that learning to resolve new problems in a creative and original way no one other than you can be relied on to answer — that’s what you’re going to be doing as a lawyer!

I do not mean to minimize the importance of knowing the rules. You must know the rules. The rules are the language the law uses to structure the presentation of your persuasive explanations. Merely to give a recitation of your personal reaction to the evidence without reference to the rules is not to act as a lawyer. But the rules will only make sense to you if you use them to come to a result that makes sense to you as a human being.

You also have to keep in mind that rules in contract law sometimes serve purposes other than merely giving effect to what the parties intended. Rules such as the statute of frauds, for example, will in the absence of clear and convincing evidence of agreement avoid the administrative difficulties and expense of full-blown trial in certain types of important cases in which the parties have not supplied either the formal requirements evidencing such agreements or can supply other evidence as convincing as those formal requirements.

Again, this is not to discount the importance of the rules. You must know the rules to articulate your arguments in a manner that makes sense to lawyers, judges, and law professors. You are now a member of a profession, and you must communicate in the language of the profession. But you will never persuasively apply those profession-specific rules without first understanding the human disputes, the evidence, and the ways that evidence persuades human beings as to the merits of the disputes. Then, and only then, can you begin to structure your arguments in a manner that usefully employs the technical legal rules.

As a final note, my disquisition here should put to rest the myth — even one propounded by the Chief Justice of the U.S. Supreme Court as a means of obtaining confirmation in the course of a farcical political show — that applying legal rules to resolve legal disputes is the same as calling balls and strikes.

A tribute to Justice Souter, and his recent speech on civics education

Justice Souter was woefully underestimated. He was reviled by the right because he turned out to be a moderate — someone who, especially given the rightward drift of the Court in the since Reagan was elected, seemed to the right an outright leftist. That he had been appointed by George H.W. Bush, a Republican, made Souter seem to the Right not merely a leftist, but also a traitor. Nor did the Left particularly appreciate him except, perhaps, as a man they recognized as independent in his thought.

But perhaps Souter’s biggest failure as a public figure was that his style did not fit his time. Souter did what I learned judges are to do: strive hard to do justice in each individual case. His opinions reflected his strenuous effort to make sure the law was interpreted to ensure that the parties to the lawsuits he was judging were treated justly.

Unfortunately, however, he served during a time when overreaching ideologies became the fashionable way to judge problems, especially legal problems. Law and Economics, a legal movement that interprets law entirely through the lens of a purported judgment as to its ability to efficiently allocate economic resources, has grown during my professional career from one approach among many to, arguably, the most dominant mode of legal thought in those circles that are concerned with delineating theoretical approaches to law. Since Ronald Reagan was elected, we’ve raised an entire generation that accepts without any consideration of the realities that anything government does it does incompetently and that labor unions are corrupt institutions that entrench incompetence. You’d never know that the era of the greatest American affluence (an affluence shared far, far widely than the wealth the U.S. has today) followed thirty years of big government and the rise of labor unions to the apex of their power. You’d never know that my father, the son of immigrants who grew up in poverty (which he didn’t even dream of as poverty) in the Depression, served in WWII, and was a POW in Germany, attributes his success (which, of course, is entirely resonsible for mine) to the fact the goverment paid entirely for his higher education by way of the G.I. Bill (imagine: investing in your country’s future!). He attributes his remarkable good health at 85 to health care he receives from the Veterans’ Administration, which he says is as good as better as the health care anyone he knows receives.

So when Justice Souter told the attendees at the American Bar Association’s annual meeting earlier this month that we need better civics education in our schools, he spoke the truth. We also need far, far better history instruction.

/p>

Do we really want anyone to have free online access to court files?

Court documents are public. You can go down to any courthouse and examine the files from any case you want. But there has been no smooth transition to making those documents publicly available on the internet. That may be changing, though I’m not entirely sure I agree with the majority of commentators on the subject that making those documents freely available to anyone with an internet connection is a good thing.

As explained by the Wall Street Journal, “Digital records of court filings, briefs and transcripts sit behind paywalls like Lexis and Westlaw.” Lawyers, non-profits, and researchers can use PACER to access all documents filed in the federal courts, but PACER has 2 significant defects: (1) it costs 8 cents per page to download any document (an amount that can add up rapidly to access a sufficient amount of material to make sense of any given document), and (2) you cannot search the system by keyword.

As the WSJ puts it: That’s right: In 2009, judicial records in the U.S. are essentially unsearchable.” But last week, a team from Princeton’s Center for Information Technology Policy unveiled a Firefox add-on that promises over time to make all those documents filed in federal courts freely available and word searchable:

They whipped up a sleek little add-on to the popular Firefox Internet browser called RECAP (PACER spelled backward). Legit users of the federal court system download it. Then each time they drop eight pennies, it deposits a copy of the page in the free Internet archive. This data joins other poached information, all of which is formatted, relabeled and made searchable—the kind of customer service government tends to skimp on. Users can even see what has already been liberated while within the government system, a stylish and subversive touch. This week, as RECAP picked up speed, various court offices got skittish and began sending out emails acknowledging the project’s legality, but “strongly discouraging” its use anyway.

I’m as great an advocate of government (and corporate) transparency as almost anyone, but I can’t help but be troubled by the possibility that someday all the files in every court in the land will be word searchable and accessible to anyone with an internet connection. It’s one thing to go to a courthouse (or even through many free online sites) to access the papers filed by the parties to a particular lawsuit. Courts are public institutions, and the fact their documents have always been and continue to be accessible to anyone (willing to visit the courthouse where those papers are filed) has been fundamental to the greatness of our judicial system.

But papers filed in court do not necessarily state facts. Think of what friends of yours have been falsely and outrageously accused of in bitter business and divorce cases. Think of all the ridiculously frivolous lawsuits “tort reformers” are always screaming about. Think about how often the report of a filing of a lawsuit, which sets forth allegations that are merely allegations, not assertions of proven fact, are reported and read as fact. Do you really want anyone with an internet connection to be able to search the files of all the courts in the land for your name, pull up the documents from that case, and set forth on their website what some witness has stated without regard to the larger context of the court case that might reveal the witnesses lack of credibility, hostility, limited knowledge, subjectivity, or sheer misapprehension?

Just one example of the sort of problems free access to court records could create was described by Charlotte Watson, Executivec Director for the New York State Office for the Prevention of Domestic Violence in a public hearing held by the New York State Commission on Public Access to Court Records. Ms. Watson testified as follows (at pages 82 and following of the transcript of the entire hearing (pdf):

Ms. Watson: What we innocently put on the “Web” a few years ago is now being used in ways we never considered, including invasive crimes such as identity theft. We’ve heard horror stories of how stalking victims were tracked and harmed through information posted and available to all for good or bad intent. We’ve all seen those annoying pop-up adds on our computers, advertising the ability to find literally, anyone. As a domestic violence advocate with more than 27 years in the field, and one concerned about privacy in general, those ads, and the open, easy access to so much personal information in what we term the “information age” are truly frightening.

Nowhere is this more of a concern than when considering the safety and security of victims of domestic violence, sexual assault and stalking. We know that domestic violence is pervasive, on-going, life-changing reality for millions of women and children in this country, and stalking is an integral part of the dynamic of domestic violence.

Domestic violence victims know all too well their abusers will use any means to control and terrify them and keep them from escaping. It is not unusual for a batterer to monitor the odometer on a victim’s car, record the victim’s phone calls, or use hidden cameras. Imagine what it would be like to have a Global Positioning Satellite unit attached to your car and monitored constantly by someone in authority over you. This is the daily reality of many victims of domestic violence with the state of technology today.

What will tomorrow hold? It’s extremely difficulty and often dangerous for battered women to escape their abusers. Many find it necessary to flee the area entirely in hope of

finding safety. Those who are able to get away live with the extreme fear of being found by their abuser. A losing battle for approximately 1,100 U.S. women each year who were murdered by their intimate partners after fleeing, as well as, countless others who are re-assaulted.

There have been many attempts to help victims find safety. . . . Unfortunately, at the same time we are recognizing the needs of domestic violence victims, the trend toward “open government” and access to information has become an easy, affordable and valuable weapon for abusers.

As advocates for victims of crime, however, we do recognize the need to find ways to increase the accountability of systems, including the courts, in their responses and decisions. It’s vital that these interests are balanced against victim safety and the privacy of users of our court process. In the effort to increase accountabilities, the court must be mindful of even the appearance of culpability, should granting easy access to information result in harm to a victim.

It should never be the case that potential consumers of the courts must weigh the need for safety through court intervention against the need for privacy and anonymity

which may also impact safety. In light of these concerns, I will outline a number of recommendations regarding open access to court information. . . . The negative implications include, as has been mentioned:

A chilling effect on victims who are considering using the court for legal relief. While we applaud the fact that family court and matrimonial records will not be subject to open access, I must emphasize that under current law, criminal court is the only court in which many victims may seek relief. Consider, for example, a victim who’s being abused or stalked by a boyfriend. To obtain an order of protection, that victim will have to disclose significant personal information and potentially embarrassing details about the abuse in criminal court. Under the Conference of Chief Justices and the Conference of State Court Administrators Guidelines, this information would readily be accessible by the public and the offender. It’s not a leap to say the victims will be reluctant to pursue an order of protection under these circumstances. Is it fair to ask a victim to sacrifice her privacy for the safety she’s entitled to under the law?

Imagine the heyday the pornography and smut industry will have with such easy access to crime scene photos of horribly violent rapes and homicides. Imagine the websurfer who accidentally opens a porn site or the errant adolescent going to sneak a peak only to discover the crime scene photo of his naked mother lying in a pool of blood. At what point would the balace tip from accountability at this point to culpability? At what price? Who and how would these decisions be made as to where to draw the line?

There are safety risks for crime victims and witnesses. As I noted earlier, abusers often track and monitor their victims as a means of maintaining control. These behaviors typically increase when a victim leaves the abuser. Whenever a victim becomes involved with the court system, whether voluntarily, as a result of mandatory arrest or pro-prosecution policies or for some other reason, precious information about her location, status, current name, phone numbers and other circumstances is disclosed. Such disclosure is a major concern for my agency and victim advocates across the state. We know that abusers will access this information and use it every way possible to stalk, threaten, assault or kill the victim and maybe her children.

This can be a problem even when the victim is using the court system for something unrelated to domestic violence. For example, if these involved in a motor vehicle accident resulting in legal action and the information, includinging simply the location of the Court is posted on the Internet, her address would be posted making it all too easy for her abuser to find her. Perhaps she relocates to escape the abuser and later becomes the beneficiary of a probated estate. As a result, identifying information could be posted creating similar safety risks. Ironically, if the victim is seeking a legal name change, even this information could be posted on the Web, making her efforts at anonymity fruitless.

It’s important to note she may not be a victim at the time of her interaction with the court on the myriad of non-domestic violence related actions that could bring her to court. After one date with a stalker, she would be vulnerable to his gaining valuable information about her that could lead to her demise. There’s an increased opportunity for identity theft. Destroying the victim’s credit and reputation is a tactic already used by batterers. Open public court records will only increase the opportunity for accessing and misusing personal information.

We’re concerned about the secondary uses of the information. Information stored by the courts will most certainly be used for purposes that move far from the original public policy intent of governmental accountability. It will be gleaned and sifted and compiled along with other information to create entirely new databases that can be misused and misinterpreted. Once the information is gathered for another database, it can never be taken back or corrected. In domestic violence cases, false or misleading information could be deliberately planted by the batterer in spurious legal filings that include slanderous material against the victim which are then posted on the Web for all to see and use.

Internet access could undermine the victim in custody proceedings. Seeking custody is one of the most powerful tactics used by abusers to access control their victims. Abusers will use every means available to discredit the victim and prolong a custody battle. The proposed guidelines actually aid abusers in this process. Open public access to court information provides abusers with cheap and easy access to all records of any criminal proceeding, regardless of whether such information was relied upon we the court. This poses serious ramifications for victims who ultimately leave their abusers and seek custody. Economic survival or the abusers threats or false promises often compel victims to minimize or deny the events or later recant earlier statements of abuse that form the basis of a criminal prosecution. The fact that such records from a criminal proceeding and many civil proceedings will be within easy grasp of an abuser in a subsequent custody proceeding essentially re-victimizes the victim, rewards the abuser’s use of coercive tactics and facilitates the abuser’s use of custody as a weapon of control.

MR. ABRAMS: It seems to me that a good part of what you’re saying would apply to public access, regardless of whether there’s an Internet or not. When you say that “open public access — on page five — to court information provides abusers with cheap and easy access to all records of any criminal proceeding, regardless of whether such information was relied upon by the court.” The fact is that now, without an Internet — before we had an Internet, there was open public access to court information, regardless of whether the information was relied upon by the court. Does your office favor limiting access to the information itself, regardless of whether it’s going on

the Internet?

MS. WATSON: Our concern is the same one expressed many times today; that’s the cheap, easy affordable part of it. You can actually be sitting in your bedroom, walk over to your computer and find the information. It’s very different from having to go down to the courthouse and go through the records and find the information, being able to sit in California, sit on your computer, pull up your victim, your target’s information on a court record in New York.

A legal pattern – innovation, slow embrace of the innovation, abuse of the innovation, and gradual control of the abuse

Disputing — a terrific blog dedictated to issues regarding arbitration, mediation, and other means of “alternative” dispute resolution — has given me the honor of writing as a guest. Today on Disputing you can read Part One of

“Alternative” Dispute Resolution, the Rhetoric of Naming, and the Emerging Trend to Invalidate Mandatory Arbitration Clauses and Class Action Waivers in Consumer Agreements

It describes a typical arc for legal innovations. There is innovation, acceptance by the law of the innovation, abuse of the innovation that uses it for purposes other than those it was created to accomplish, and, slowly, the law’s effort to preserve the benefits of the innovation and curb its abuses.

In this case, the innovation is arbitration. As Wikipedia explains, “In the early 20th century, businessmen in New York began promoting the idea of legally binding arbitration to resolve disputes as a less costly alternative to litigation. Courts were hostile to the idea . . . .” Only in the 1950s and 1960s did courts generally accept arbitration and come to universally enforce agreements to arbitrate disputes. During my legal career (I began law school in 1981 and practice in 1984), the enforceability of arbitration agreements became an unquestioned fact.

But, inevitably, businesses began to recognize that requiring their customers to agree to arbitrate disputes rather than engage in litigation in the courts offered other benefits, benefits that had nothing to do with arbitration’s offer of faster and less expensive dispute resolution. And only now (literally, in the last month) are courts both recognizing what is going on and dealing with it effectively.

You can go to Disputing to read part 1 of the story. Part 2 will appear on Disputing tomorrow.

Tort law serves a lot of purposes tort reformers don’t recognize, though Robert Bork might have changed his mind.

The law tends to be rational, though the rationale behind it is not always apparent. But when you see people screaming about irrational laws, they’re often failing to see, if not ignoring, what the laws do accomplish.

You’ll hear again and again in connection with proposals to reform our system of health insurance that the real way to cut medical costs is to reform our tort system so that doctors don’t practice excessively expensive “defensive medicine.” Don’t believe it. I’m not saying that our malpractice system is perfect, but merely cutting back on malpractice cases and recoveries because of their impact on the practice of medicine ignores two important consequences of the malpractice system that we better be sure are provided in other ways before we significantly cut it back.

First, the malpractice system maintains the high quality of health care we do have. My dentist, who is German, told me she hates practicing dental surgery in Germany because the standard of care is so low. She’s always afraid the anaesthesiologists will kill the patients. In contrast, she explains that the standard of care is so good here precisely because of the fear of malpractice liability.

Second, judges and juries in some jurisdictions likely do err in favor of patients in finding doctors at fault. Why? Because our health insurance system is so inadequate and, regardless of the doctor’s wrongdoing, a patient who suffers a bad outcome from a medical procedure is going to need money to take care of the bad outcome. If it isn’t going to come from health insurance, why not from the doctor’s malpractice carrier?

The second problem would be better taken care of by instituting a no-fault compensation scheme for people who suffer bad outcomes from medical procedures. But doctors have always, for reasons I do not fathom, resisted such a system, while at the same time they cry, understandably, about the blame game played in malpractice cases.

There have to be better ways than the malpractice system to maintain our nation’s high standard of medical care. But until we’ve devised such a system, we ought to be cautious about dismantling the system that currently maintains that high standard.

The funny thing is that no one likes a personal injury lawyer until they need one. Robert Bork, of course, is a notorious conservative critic of our legal system who is often portrayed as a victim as a result of the rejection of his nomination by Ronald Reagan to the Supreme Court. Bork’s critique of the legal system has included an attack on the tort system, calling it, as Bloomberg News reported last month, an irrational and unpredictable process that subjects businesses to the kind of predation practiced by pirates:

In a 1995 opinion piece published in the Washington Times, Bork and Theodore Olson, who later became a top Justice Department official, criticized what they called the “expensive, capricious and unpredictable” civil justice system in the U.S.

“Today’s merchant enters the marketplace with trepidation — anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates,” they wrote.

But Bork recently sued the Yale Club of New York City, “claiming he tripped and fell because of the club’s negligence as he ascended a dais to give a speech.” His amended complaint alleges that “[w]hen it was his turn to deliver” a speech at the Yale Club, he “approached the dais. Because of the unreasonable height of the dais, without stairs or a handrail, Mr. Bork fell backwards as he attempted to mount the dais, striking his left leg on the side of the dais and striking his head on a heat register.” Among other defensess asserted by the Yale Club in its answer are that the risks of mounting the dais were “open and obvious” and that Bork has already been compensated (no doubt through his health insurance, which I bet is as good as it comes) for some or all of his economic loss.

Bork isn’t the first “hypocrite of tort reform,” nor will he be the last. But next time you know someone who’s been badly injured, you might want to keep in mind the ways he or she might get compensated for the costs arising from the injury and the ways the law discourages the conditions that caused the injury.

Why is music the main battleground in the copyright wars?

Andrew Dubber is an established scholar working in Britain, an author, and an online music consultant writing a book “about the music industries and intellectual property in the digital age.” He’s also writing a blog as “a scrapbook of material for” the book. The book and the blog, Deleting Music, are “[s]pecifically . . . about the problems that arise when music is only considered in terms of its function as commerce, rather than as culture.”

Two days ago Dubber raised this question: why is his focus on music when the issues he is exploring “extend[] way beyond popular music into books, visual arts, academic works, medicine… and extend[] into the realms of international trade, global politics and genuine life and death issues”? He believes that the reason is that the music industry is uniquely threatened by the commercialization of culture:

There’s a genuine cultural crisis going on in the music industries. Master tapes are decaying in vaults. Original works – by artists you’ve heard of, not just obscure and irrelevant wannabes – are not being preserved. Archives and libraries are only reluctantly being supplied with copies of released material – and not reliably so.

In music, perhaps in more than any other field, culture is not merely being prevented from being remixed – it’s completely disappearing, preventing it from forming the basis of any future works or research. And it’s that, more than anything else, that I want to communicate through this book.

This is not a hypothetical problem, or merely an unfair distribution of power. Popular music culture is literally vanishing right now. Magnetically-charged metal oxide particles are falling from master tapes as we speak.

To me, that’s important, urgent – and worthy of its own book

Music has been the center-piece in the recent copyright wars. Dubber knows better than I the impact of the music industry’s practices on the culture, but I think there’s a very good legal explanation for the music industry’s centrality to today’s copyright disputes.

In both the plastic arts and in literature there is a long history of, well, “remixing” as a legitimate method of creation. There has been in music as well, but not in quite the concrete and specific way there can be in painting and literature. Collage is a long-established artistic genre, and in literature the wholesale copying and rearranging of existing work as a composition method goes back to the foundation of Western literature in Homer. In music, on the other hand, while composition has always been a matter of reworking existing formulas, we’ve been operating in recent times on a general assumption that lifting a single note from an earlier recording constitutes copyright infringement. For long enough this practice has been the norm in the music industry that most people I know simply assume it’s an indisputable fact that if you sample anything from a copyrighted work you must pay for the sample.

But that’s a very debatable proposition. So where did it come from?

Paying for every last sampled note from a copyrighted song only became standard industry practice beginning in 1991 practice after Judge Kevin Duffy in Grand Upright Music, Ltd v. Warner Bros. Records, Inc. , 780 F. Supp. 182 (S.D.N.Y. 1991), in a decision that did not even consider issues pertaining to fair use, enjoined the distribution of Biz Markie’s third album because one of its songs sampled three words and the accompaniment ostinato of Gilbert O’Sullivan’s cheesy hit “Alone Again, Naturally.” Duffy wasn’t satisfied with a mere injunction; he also referred the defendants to the U.S. Attorney’s office for criminal prosecution and began his opinion, like a preacher from the pulpit with these words:

“Thou shalt not steal” has been an admonition followed since the dawn of civilization Unfortunately, in the modern world of business this admonition is not always followed.

The U.S. Attorney’s office exercised its prosecutorial discretion and refused to seek an indictment against Biz Markie or his producers. One likes to think the prosecutors were more thoughtful about the copyright issues the case raised than was Judge Duffy.

But Biz Markie’s record company did not appeal the decision and, in fact, the decision marked the beginning of the music industry’s practice of requiring permission and payment for any sample. The companies that at the time constituted the industry had a strong interest in maintaining the regime Duffy’s decision put into place (a regime bolstered in 2004 by the decision in  Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2004), in which the court ruled that the defendant had committed copyright infringement by using in his own musical recording a two-second sample from an earlier copyrighted recording, lowering the pitch, and looping the sample to extend it to 16 beats). Deference to this legal regime meant that each company’s recordings were inviolate without payment. There was no economic reason to challenge the right of another recording company to require payment for any sample, no matter how small, no matter transformative its use was, and no matter how little impact it would have had on the market for the sampled piece. Moreover, artists who would have challenged the existing regime hardly had the financial wherewithal to take on the industry and the enormously successful artists who benefit from it. Thus, as John Pareles has written, “[a]lthough sampling was just a technological extension of the age-old process of learning through imitation, producers who use samples now pay up instead of trying to set precedents for fair use. “

Thus, the the RIAA states “generally speaking, the use of any part of a song requires a license.”

But, as I have emphasized again and on this blog, law is forced to change when the material conditions it governs change, and the ability to make and stitch together samples into compositions that can be disseminated world-wide — an ability that in 1991 was held almost exclusive by the recording industry — is now within reach of, literally, millions of people. It is inevitable that with this change the deference given to a trial court decision in 1991 would be challenged and that the arguments Judge Duffy entirely ignored in that decision would be examined anew.

But when, and in what circumstances? That is the interesting legal question right now. As I’ve previously written, Greg Gillis, who performs as Girl Talk, creates music that does nothing but violate the rule Judge Duffy declared inviolate since the dawn of civilization — Girl Talk’s work consists entirely of samples of recordings (virtually all copyrighted) stitched together into entirely new works.

Girl Talk’s work therefore has been described as a “lawsuit waiting to happen.” Gillis’s compositions include samples of recordings made by such artists as Metallica, who have demonstrated their willingness to sue people they believe have violated their copyrights, and the Guess Who, whose representative has stated ,  “We’ll chase [Girl Talk] down. What more can you do?” Yet no one, as far as I know, has yet sued Gillis. Why?

Well, I think I am a lawyer just like the lawyers representing Metallica, the Guess Who, and anyone else whose work has been sampled and repurposed by Gillis. And if were advising one of these clients (or I were representing the RIAA and could influence the lawyers for Metallica and the Guess Who), I would advise that client not to sue Girl Talk; Gillis’s argument that he has transformed the copyrighted materials sufficiently that his work constitutes non-inringing fair use is just too good. I’d go after someone I am more likely to beat. Othewise, I’d lose all the leverage I have with the existence, as yet undisputed in case law, of the decisions in Grand Upright Music and Bridgeport Music.

We can only “fix” the medical malpractice “problem” if we fix all the problems we use medical malpractice to address. Universal coverage and medical malpractice cannot be separated from one another.

Walter Olson asks what we’re getting from our medical malpractice system — with “jury trials, contingency fees, lack of loser-pays, extensive lawyer-driven discovery” — that Canada, at 10% of the cost for its medical malpractice system does not. It’s only part of the question. Olson quotes Richard Epstein, who states “American judges frequently let juries decide whether honest mistakes are negligent. Judges in other nations are less likely to do so. American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury. European judges usually will not.”

Why is this going on? Is it just madness? Of course not. What Epstein and Olson ignore is that patients in Europe and Canada have national health insurance that will pay for the costs of medical care necessitated by inevitable — even if honest and non-negligent — bad outcomes that result from medical malpractice.

We can’t just “fix” the malpractice “problem” unless we fix the problem of being sure patients who suffer bad medical outcomes (a risk we’re all exposed to) being unable to pay for the care required by those outcomes. Why does Canada only spend 10% what the U.S. does on malpractice? Because Canada has national health insurance to pay for that care.

It worked for businesses with workers’ comp. Why not a no-fault liability system to pay for medical care and other consequential financial loss flowing from any bad medical outcome?

Consumer Protection: an old idea that’s new again.

It is remarkable how much times have changed, and how quickly. Since the election of Ronald Reagan the legal common wisdom has been that allowing individuals to enter into whatever agreements they wish, no matter how risky, leads us to the best of all possible worlds. Most usury laws became irrelevant. If you wanted to borrow at a ridiculously high interest rate, who was the government to say you couldn’t? I’ve been told that my opposition to that common wisdom was a belief that people are stupid. I suppose that’s one way to put it, but I certainly don’t except myeslf from the group I am judging. Saying I think people are stupid is just a way of saying I’m arrogant, paternalistic, and think I know what’s better for others than they do themselves. But give people the opportunity to take irrational risks, and they will. Give enough people enough opportunities to take irrational risks, and you put the entire society at risk. So now we’re speaking again (as we began to back in the Sixties)  in terms of consumer protection — laws limiting what terms consumers can be bound to and requring that whatever terms are agreed to are agreed to openly and plainly. Such regulation supplements the common law of contracts, which is founded on the idea of freedom of contract — precisely that individuals are free to make whatever stupid deals they wish. You want to sign up for a credit card with a 29% APR? Who am I to stop you. But there’s nothing wrong with limiting freedom of contract to some extent — it likely strengthens another core principal of contract law: that we should enforce contracts because they are agreements people consciously and intentionally enter into.

From the New York Times:

The federal consumer protection system failed the country, disastrously, in the years leading up to the mortgage crisis. One big cause was the sharing of responsibility for compliance with laws and regulations among several agencies that communicate poorly with each other and tend to put the bankers’ interests first and consumer protection second — if they pay attention to it all.

The Obama administration was right on the mark last week when it recognized this problem and proposed a solution: consolidating the far-flung responsibilities into a strong, new agency that focuses directly on consumer protection. The plan, modeled on a bill already introduced in the Senate by Richard Durbin, Democrat of Illinois, deserves broad support in Congress.

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.

How does legal innovation occur? Slowly, by looking to the laws of other countries, and by disguising innovation as interpretation.

In “Inventing Invention: A Case Study of Legal Innovation,” Professor John F. Duffy recognizes that change and evolution in law are taken for granted but rarely studied in depth: “Legal change is treated as if it is something that just happens-that follows inexorably from the emergence of social needs and changed social conditions.” Duffy’s article is an antidote to these truisms, studying in depth the development of the requirement that in order to be patentable an invention must be “non-obvious.”  Duffy identifies in the development of this major legal innovation several characteristics he believes could be generalized to a lot of legal innovation:

(1) “Nation-states do not seem to create new legal conceptions independently nearly as frequently as they borrow them from other nation-states.”

(2) “Nations with similar legal cultures and industrial capabilities, such as the United States and England, sometimes maintain significant differences in their law for periods of decades. The speed of convergence on a single ‘common’ law seems extraordinarily slow.” This deliberate pace seems to be the product of a wait and see attitude: “because [one country does] not know whether the innovation is a pathbreaking and salutary development, like obviousness, or a disastrous experiment that will eventually be discarded,” it will wait and see the results.

(3) Courts are wary of the criticism often directed at them for “making policy” rather than merely applying existing law. As Chief Justice John Roberts puts it, his role is merely to be an umpire, not to determine what is a ball and what is a strike. Of course, Roberts ignores the fact that a strike zone is rather well defined, whereas law is full of open-ended standards (the requirement of “due process,” for example), gaps that do not fit cases that courts must decide, and outright ambiguities. But, as Duffy points out, the attitude Roberts exemplifies forces courts to engage in innovation under the guise of mere intepretation: “even when courts are trying to change the law, they often deny that they are doing so by creating clever reconstructions of the language that previously defined the relevant doctrine.”

The influence (not) of law professors

Justin Hughes, Of World Music and Sovereign States, Professors and the Formation of Legal Norms, 35 LOY. U. CHI. L.J. 155, 157 (2003)(emphasis added):

You want the best indicator of how an American court will decide a major intellectual property case in the Internet era? Look for the amici or parties’ brief with the dozens of law professors  – those theories are how the court will not decide the case.