Oppositional figures?

Art and law are ways of exploring, defining, and even creating the world. They are also often romanticized as methods of expressing opposition — opposition to the ruling order, opposition to the status quo, opposition to conventional wisdom. Princeton will soon be hosting a symposium on The Art of Opposition. The promotional materials state:

Throughout history artists have created works as a form of opposition, whether to a dominant political order or to familiar social mores and conventions. This polemical mode of conceiving and interpreting art continues: artists frequently present their own work as a challenge to the status quo, while scholars and critics of contemporary art reinforce the notion that for art to be relevant it must at some level present a critique of prevailing habits and attitudes. For art historians, the concept of art as a form of protest or a challenge to established convention remains a frequent point of departure for research, particularly in relation to certain artists or in the study of specific historical junctures.

Art too, of course, has a long history of reinforcing the status quo, of glorifying the powers-that-be. Virgil’s Aeneid is at least in significant part pro-Augustan propaganda. And you don’t exactly find the world’s greatest art (or most art) in the more pedestrian places. Patronage has its price.

Law as well has its long history of opposition. Our entire system of litigation is founded an adversarial process. More to the point, however, lawyers have often been at the forefront of progressive social movements. As in the case of artists, however, it is not skill and creativity that frees one from the mass of humanity, or even from the forces that crush the most noble parts of humanity. It is the use to which one puts that skill and creativity.

Are lawyers and artists completely different and atagonistic?

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

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

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

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

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

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

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

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

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

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

Art exposing law: Pirates of the Amazon

Here’s some art trying to express the tensions between technology allowing the instant worldwide dissemination of a work and the law that evolved to deal with an entirely different set of technologies. DailyTech reported that a Firefox plug-in named “Pirates of the Amazon had been developed that allowed its users to immediately identify free alternative online sources for any product they found on the Amazon.com website. Within a day, Amazon’s lawyers had filed a takedown notice. Subsequently, someone put up a website stating that the plug-in had been created as an art project meant to illuminate issues raised by today’s “media culture”:

“Pirates of the Amazon” was an artistic parody, part of our media research and education at the Media Design M.A. course at the Piet Zwart Institute of the Willem de Kooning Academy Hogeschool Rotterdam, the Netherlands. It was a practical experiment on interface design, information access and currently debated issues in media culture. We were surprised by the attentions and the strong reactions this project received. Ultimately, the value of the project lies in these reactions. It is a ready-made and social sculpture of contemporary internet user culture.

One day after publishing we received a take down request by the legal department of Amazon.com.

This work was made as a trimester assignment in our study course, under the supervision of our tutor Denis Jaromil Rojo and our course director Florian Cramer. This page is now the documentation of our study work as required by the course.

To further confuse matters, DSLReports.com wonders if the claim the plug-in was an art project was “simply a post-release attempt by the plugin’s author to cover his legal posterior.” I would suspect, though, that the project really was an art school endeavor. Denis “Jaromil” Rojo “is an artist and a FOSS hacker. . . . popularly known for Dyne:Bolic (http://www.dynebolic.org/), a Live CD distribution . . . . As a programmer, he is author of several free software that present new possibilities for online radios. Jaromil is identified as a “tutor” for the 2008-09 academic year on the Piet Zwart Institute’s web site, and Florian Cramer is identified on the same site as the “course director of the Media Design M.A. programme.”

ADDENDUM: Florian Cramer writes in the comments to thank me for the “balanced” coverage and to add that the indication the site was an art project was made clear on Pirates of the Amazon from the beginning.

Survival

John Kline and my father both were GIs in the106th Division during WWII.  On December 19, 1944, they both were captured by the Germans during the Battle of the Bulge.  They were the lucky ones.   The 106th Infantry Division, average age of 22 years, suffered 564 killed in action, 1,246 wounded and 7,001 missing in action at the end of the offensive.   Most  of these casualties occurred within the first three days of battle, when two of the division’s three regiments was forced to surrender.  You can read Kline’s diary of his wartime experiences here.

My father swears he hasn’t had a bad day in his life since his liberation.  He’s a lawyer, which I suppose is one possible way to justify this post.  Another is that the friend with whom he huddled for warmth during their first night of captivity was Jim Dew, a painter and professor at the University of Montana.  This is one of his works, entitled Placid, which resides in the Montana Museum of Art & Culture.

The rhetoric of naming.

Don’t you just love the names that legislatures give their laws? Like 2003′s “Clear Skies Act,” which in fact weakened the Clean Air Act’s provisions against air pollution. Well, yesterday the President signed into law the “Pro-IP Act,” which, if it did what its name says it does, would advance the purposes of intellectual property laws. But all the “Pro-IP Act” does is increase substantially the already substantial penalties for piracy of copyrighted and patented products. The purpose of copyright, according to the U.S. Constitution, is to promote “[t]o promote the progress of science and useful arts.” Yesterday’s post should make clear I don’t think increased penalties for downloading music or posting videos with copyrighted music is the kind of change that advances copyright’s purposes. But if Congress says so, it must be so, right?

The life of the law is a life of art

Last night, I came back across the words(pdf) of my former professor, James Boyd White, that express eloquently my view of the common ground shared by artists and lawyers:

As I conceive it, the life of the law is . . . a life of art, the art of making meaning in language with others. Its goal, like that of other arts always imperfectly attained, is the integration into meaningful wholes of the largest and most contradictory truths – the incorporation into the case of what can be said on both sides of it, the recognition in our discourse of other ways of talking – all under the ruling requirement that what we say makes sense. The lawyer must know what the literary person knows, that he or she is always one person speaking to others in a language that is contingent and imperfect. And the excellence of mind required of the lawyer, like the excellence of the composition the lawyer makes, is integrative: a putting to work in the same text of as many of one’s resources and capacities as possible in an meaningful way.

Just because most people like it doesn’t mean you have to

I asked last night what it is that makes Barack Obama and not John McCain an “elitist,” and what I’ve figured out is that it’s a stupid question that, like the ad hominem fallacy, tries to avoid the issues we really need to think about.  From Butterflies and Wheels:

But ‘elitists’ don’t have a monopoly on hidden agendas and invidious motives. One-upmanship, jockeying for position, ressentiment, self-righteousness, the thrills of disapproval and condescension and getting it right while others get it wrong – those are all equal-opportunity pleasures. Anti-elitists get their own little frissons from saying You’re a snob and I’m not. In fact, of course, it’s impossible to think anything is right as opposed to wrong, that any attitude, stance, commitment, political view, idea is better than any other, without opening the door to approval of self and disapproval of others. Quite, quite impossible. If we’re too afraid of being smug and superior and self-righteous to have any opinions at all, we just become vacuous spineless shapeless nothings, and we can never improve or correct or change anything. What could be a more conservative position than that? No, abdication of judgment is neither possible nor desirable, we have to be clear about that, and just settle down to doing it well instead of badly. Terry Eagleton puts it this way:

“We should, I think, give no comfort to those who in the name of a fashionable anti-élitism would ignore real evidence of cultural deprivation, though we should remember of course that there is no single index of cultural flourishing or decline.”

The elitism epithet works to inhibit judgment because it is so a priori. It assumes, without argument, that to say that any popular book or movie or piece of music or tv show is bad is a thought-crime, because doing so second-guesses majority opinion; it says majority opinion is wrong. Democracy is expanded from the political realm to that of ideas and art, and taken to mean that the popular is automatically good and the good is automatically popular. Put like that it looks insane, but what else does the elitist epithet mean?

Sad to say, if we’re going to think at all, we have to be able to think for ourselves. De Tocqueville pointed out how difficult this can be in a democracy, and he scared the hell out of John Stuart Mill, who pointed out the difficulty and the necessity even more sharply. Both the difficulty and the necessity are still with us.

Segways.

Hey, maybe I should sue for copyright infringement!

The 100 Most Creative Moments in U.S. Law?

From the Law Librarian Blog:

Robert F. Blomquist’s (Professor of Law/Swygert Research Fellow, Valparaiso) Thinking About Law and Creativity: On the 100 Most Creative Moments in American Law [download from SSRN or ABA Journal] is a very interesting article as long as you do not take Blomquist’s act of ranking creative moments in American law too seriously. If you did take the ranking seriously you would have to note his bias for environmental law. You would have to question why Rachel Carson’s Silent Spring (1962) and Charles Reich’s The Greening of America (1972) ranks higher than Richard Posner’s Economic Analysis of Law (1973) and why Berle and Means’ The Modern Corporation and Private Property (1932) fails to appear in the ranking while Al Gore’s Earth in the Balance (1992) and An Inconvenient Truth (2006) do appear in the Top 100.

. . . what makes Blomquist’s article interesting is the project itself, the attempt to articulate America’s most creative legal moments to “energize and clarify our synoptic thinking about the nature of legal creativity.” In it he identifies, court decisions, executive actions, specific statutes, legislative programs, landmark articles, books, and events in legal education. He offers brief justifications for his selections and their placement in his ranking but I think the use of a numerical ranking system as an organizing device is too artificial and constrains his commentary; a matrix or web of law with major and minor nodes for the layering of law’s creative moments might be better way to perform this sort of intellectual archeology.