Declassé
Some might argue that Professor Bainbridge's comments on class litigation reform are merely the tryptophan-hangover musings of a conservative. Well, perhaps that is to some extent true; but much of his concern is nonetheless sensible. Just like the Copyright Act, and in particular the DMCA, his comments make more sense working from the back toward the front. At least to me, in the throes of my tryptophan hangover.

   First, Professor Bainbridge proposes a number of reforms to class actions. N.B. I have no idea whether Professor Bainbridge ever actually engaged in class action litigation; I did, on the plaintiff's side, before switching over to IP. His proposals (my comments in this font):

1. Class action litigation reform, including:
   • Making it easier to remove class actions to federal court, so as to prevent plaintiff[s'] counsel from forum shopping the case into notorious state court tort hellholes like Mississippi or Madison County in Illinois. No argument here, but for different reasons. Although I am a strong supporter of the Constitution, I am also disdainful of state courts. With very few exceptions, I'd rather be in Federal court no matter what the posture of my action or the purported advantages of a "sympathetic" local population. The streamlined and more-uniform procedure (not entirely uniform; try pleading a civil RICO case in the Northern District of Illinois, and compare it to the otherwise-identical pleadings prepared in the District of Connecticut), vastly greater transparency, smarter clerks, and a variety of other factors actually level the playing field between large law firms and small law firms much more readily than do state courts. Further, the total cost of litigation—excluding possible travel, which is an issue either way—is usually quite a bit less in federal than in state court, because there are fewer steps in the appellate chain and the first-level appellate decision is almost always better written and on point. Litigators who forget to include the appellate phase in their plans are like the Bush Administration in its neglect of post-combat operations in Iraq. Finally, this change might actually force Congress to provide some relief for our overworked, underpaid Federal judiciary by increasing pay, improving available resources, and increasing the number of judgeships.
   • Eliminating coupon settlements in which plaintiffs' lawyers reap millions in fees while plaintiff class members get coupons (I've been deluged lately with notices that I'm entitiled to a $10-off coupon towards the purchase of Microsoft products as part of the settlement of some lawsuit against Microsoft). Again, no argument here. In my experience, "coupon settlements" are a misguided "excuse" to keep a public company from having to take an accounting hit, and therefore potential reduction in share prices, for past conduct by actually forking over cash. Further, they are unfair to the actual victims, because they tie victims to product lines that—if the cause for the lawsuit is actually valid, such as (say) TILA violations that hid a finance charge amounting to several thousand dollars on an automobile—have harmed those victims and thus may not be acceptable to the victims. Coupon settlements should be very, very rare, limited only to regulated areas; I can understand a coupon settlement for, say, a state-owned water utility that overcharged its customers and is prohibited by law from issuing bonds for anything other than new construction. On the other hand, I'd rather see some repeat and particularly egregious bad actors forced into bankruptcy or otherwise forced to acquire new management than allow some of the slimy coupon settlements that allow existing management to essentially evade all responsibility for its actions.
   • Cap attorneys' fees in class action litigation by reference to a reasonable hourly rate rather than a percentage of the award or settlement. The tobacco lawyers made billions, while public health programs remain underfunded. The money those lawyers made is now being used to finance new litigation against new targets for regulation by litigation (see Overlawyered's coverage here). With the exception of so-called product liability and mass tort actions, this is in fact the ordinary procedure. The "percentage of the fund" system is actually used in only a small minority of cases; most class actions that result in an award of attorney's fees use the lodestar (hourly rate) system, although for administrative convenience that is often compared to or turned into a percentage-of-fund award after consideration of the lodestar. Admittedly, there are abusive exceptions; but those can be controlled through actual enforcement of Model Rule of Professional Conduct 1.5(a), which begins "A lawyer's fee shall be reasonable." This is a problem for professional regulation more than for the courts—because the reasonability of fees in a given circumstance may depend upon factors that cannot be taken into account merely by revising Fed. R. Civ. P. 23.
2. Adopt a variant on the English system for attorneys fees. Under the American system, each side pays its own legal fees. Under the English sytem, the losing side pays the attorneys fees for both sides. A clever plaintiffs' lawyer might try to get around that rule by bringing on board some judgment proof activist to serve as the named plaintiff. If the regulation by litigation class action suit gets tossed, as the obesity suit against McDonalds was - twice!, make the lawyer who filed the suit pay the defendants' legal fees. If the lawyers are going to recycle fees against new targets, make them pay when those targets prevail. The only necessary response here is Fed. R. Civ. P. 11. Or, in more extreme cases, I suppose resorting to Model Rule of Professional Conduct 3.1 ("A lawyer shall not bring or defend a proceeding, or assert or cotnrovert an issue therein, unless htere is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."). In other words, this is not a problem with class actions per se, or even one limited to class actions; it is a problem with the profession's refusal to self-regulate.
3. Congress could use its powers under the exceptions clause of section 2 of Article III of the Constitution to remove issues of national regulatory import from the jurisdiction of the courts. I think this a remarkably bad idea; but that is primarily because I trust what the legislative process has become—as distinct from the Constitutional vision of it—even less than I do the courts.
4. Congress could adopt special protections against expansive tort liability for manufacturers of lawful but politically incorrect products (like guns or alcohol). If Congress does so, it is doing what the courts have stepped in to do: acting on an issue of public concern that Congress has evaded. In a sense, then, the courts provide an indirect motivation for Congress to act instead of sit there doing nothing. Whether I agree with the substance of the particular provisions or not, the result is that government has taken place.

   Where Professor Bainbridge and I differ is in our perceptions of the motivation for class litigation:

The question is whether we want some self-appointed legal activist, who stands to makes millions in legal fees, to find some self-appointed social activist willing to serve as a named plaintiff to make national policy on a key issue by filing suit in front of some unelected judge. I believe regulation through litigation is a gross subversion of democracy. As Senator Mitch McConnell argues:

The…fundamental problem with “regulation through litigation” is that private parties obtain through lawsuits what legislatures have not chosen, or even have chosen to reject.

(emphasis added) Senator McConnell's statement implies that all legislative results—positive and negative—result from an actual legislative choice. In an ideal system, this would be true. In an ideal system, we would not have the potential and actual corruption imposed through the realities of Congress's reliance on campaign financing, or skewed parliamentary procedure, or the antidemocratic House Rules Committee, or anything else. Although perhaps overused, class litigation's theoretical function is to provide an alternative for the practically or literally disenfranchised to obtain government-level actual hearings for their positions. Consider, for example, the Civil Rights Act of 1964. Absent Brown v. Board of Education of Topeka, Kansas—a class action—the ability of a few senior Senators and Congresscreatures from Jim Crow states to continue to block a clear majority desire would have prevented such legislation from even receiving serious consideration. This is not to say that every class action is the proper response to Congressional constipation (as opposed to conscious choice); it is only to say that sometimes "regulation through litigation" is democracy in response to subversion through opacity in the legislature.

   The phrase in Professor Bainbridge's comment that I have emphasized also reflects a problem with the profession, not with the system. Bluntly, the people who "stand[] to make[] millions in legal fees" are almost uniformly insurance-defense counsel. Prosecuting a class action can be shockingly expensive, especially once it becomes time to notify the class members of the litigation. Further, if the fee is unreasonable, all we need to do is get the profession to enforce Rule 1.5(a). On both sides of the v; there is no excuse for some senior partner at Windstrom & Crusher charging $600 or more an hour (that will ultimately be completely deductible for his/her client as a business expense) for the "valuable time" he/she spends consulting with corporate directors on Wednesday afternoon at 4:30 near the 13th green.

   On the principle that less government is perhaps better, maybe if the legal profession did a better job regulating itself some of these issues would disappear—allowing the government to actually govern.

It's Not Me
For those of us with a wicked sense of humor—and, if you're reading this, that almost certainly includes you—Associate Justice William Bedsworth's monthly column in the Orange County [CA] Bar Journal provides essential reading. It also restores faith in the potential value of footnotes:

   So I’ve got no sales in Texas’ high tech industry, law enforcement community, legal profession, or for that matter, anybody else south of [the] Red River. If Texas is typical, I’m in trouble.⁷

*  *  *

⁷  But, then again, if Texas is typical, we’re all in trouble.

(Posted 26 Nov 03) And if we remember all of the Texas politicians who have achieved inordinate influence over the last quarter of a century—George II and III; Dick Armey; Tom DeLay; Jim Wright; John Tower; and more others than I could shake a copy of the Constitution at—as typical, then we're in trouble similar to that on the RMS Titanic just after it struck the iceberg. For example, just look at the grammatical influence. "Texas" is not plural. Therefore, its possessive should be "Texas's", not "Texas'" (Chicago Manual of Style (14th ed.), Rule 6.24 (explicit example)). But then, as the CMS also notes,

Traditional exceptions to the general rule for forming the possessive are the names Jesus and Moses:

in Jesus' name     Moses' leadership

Rule 6.26. The theological implications of this perhaps unintentional (but nonetheless amusing, to no discredit of the author!) indication of Texas's influence on the Electorate's English—even beyond its school textbook system—could well form the subject of some overblown graduate-student essay. With footnotes that will, no doubt, take away any faith in footnotes that Justice Bedsworth had restored.

Normal to the Curve
Professor Bainbridge has recently been musing on so-called "living wage theory" and its relationship to Wal-Mart, et al. It is an interesting question, with a number of interesting assumptions (such as that the total wage pool is zero-sum). It also sheds some light on a problem that authors have—one of even greater dimension than that for "standard economy" workers.

   Although the data are extremely sparse upon the ground, the page, or wherever they may be found, the data that I do have indicate that income disparities are even higher among authors than they are between Wal-Mart workers and senior executives. On an hourly basis, the typical author earns less than does a Wal-Mart worker, and his/her income is quite irregular if a freelancer. On the other hand, we have the riches of Joanne Rowling, Stephen King, et al. (I would argue that Rowling, King, and other financially successful authors have almost always done far more to "deserve" high recompense than many, or even most, corporate executives—but that is a personal-values based argument that will not change any preconceived notions.) The key similarity is that the market inefficiencies of the markets themselves so vastly outweight any internal efficiencies achieved via conglomeration and commodification that asking about "living wages" may be entirely the wrong inquiry.

   In abstract economic theory, wages are paid for exactly the value of the work performed. Of course, abstract economic theory always assumes the existence of a can opener to open the cans of worms it creates. The whole argument over "living wages" necessarily assumes that bargaining positions between workers and employers are—or at least should be—exactly equal, from both a preexisting power perspective and an access to relevant information perspective. Given that the last such bargaining session took place in northern Idaho in 1876, it seems to me that the "living wage" argument's conflation of the strictly economic value of the work performed and the moral value of the standard of living created by those various wages is precisely what a good scientist should avoid: the merger of independent variables into a single measured variable. This is particularly true when the measured variable is in effect a binary value (any y < x is an unacceptable result, whereas any y ≥ x is an acceptable result).

   This argument becomes even more convoluted when one distinguishes between the purported necessities available at Wal-Mart (although I find it hard to believe that Spider-Man underwear is a "necessity") and the purported fripperies of the arts. I would argue that the arts are at least as important as underwear; after all, how much more charity expenditure goes to the arts than to clothing the homeless, even when there is no tax advantage? So, basically, my final position is that the whole "living wage" argument is asking the wrong question, or at least a premature one. The question that must be asked is "what is the minimally acceptable standard of living, and what are the acceptable mechanisms for providing that?" Only after one concludes that the only acceptable mechanism for providing a minimal standard of living is through wages for specific work does the "living wage" argument gain any relevance. And that is not a self-evident proposition; consider, for example, what it says about the proper way to handle systemic unemployment.

   Eventually, I'll get to the point on how this relates to the arts. But only after I finish engaging in tryptophantasies over the next couple of days. I am not a connoisseur of wines like Professor Bainbridge; I am pretty damned good in the kitchen, though. (It's only the cleanup afterward that's discouraging.)

We Want Information

The Seventh Circuit issued a critical decision concerning databases and copyright today. It is a decision that should scare Lexis, Westlaw, et al to death. And hopefully will.

This case is about the attempt of a copyright owner to use copyright law to block access to data that not only are neither copyrightable nor copyrighted, but were not created or obtained by the copyright owner. The owner is trying to secrete the data in its copyrighted program—a program the existence of which reduced the likelihood that the data would be retained in a form in which they would have been readily accessible. It would be appalling if such an attempt could succeed.

Applied Technologies of Wisconsin, LLC v. WIREData, Inc., No. 03-2061 (7th Cir. Nov. 25, 2003) (Posner, J.), slip op. at 1.

Appalling is about the most polite term I can think of. Basically, what Applied Technologies is claiming is that once information is entered into its database, any attempt to remove the data—even using a different database program entirely—and rearrange it for other use is a copyright infringement upon its database program. What is most critical is that the underlying data is public domain by law (under Wisconsin's open-government laws, the raw data used to assess property valuation).

This is similar to the problems with judicial opinions in this country. Although he does not overrule the ill-considered ProCD v. Zeidenburg, Judge Posner both criticizes that opinion as substantively wrong and notes that it is irrelevant. ProCD involved the violation of a license restricting reuse and resale of data in a commercial database of telephone numbers (the yellow book, not the white book, or Feist knocks it right out) by the licensee. Posner notes that he doesn't have to decide the issue, because WIREData (the alleged infringer in this case) was not a direct licensee of Applied Technologies.

WIREdata is not a licensee of AT, and AT is not suing to enforce any contract it might have with WIREdata. It therefore had no cause to drag the licenses before us. But since it did, we shall not conceal our profound skepticism concerning AT’s interpretation. If accepted, it would forbid municipalities licensed by AT to share the data in their tax-assessment databases with each other even for the purpose of comparing or coordinating their assessment methods, though all the data they would be exchanging would be data that their assessors had collected and inputted into the databases.

Id., slip op. at 12. He does note, however, that Applied Technologies is coming awfully close to itself violating the Copyright Act:

But our plaintiff did not create the database that it is seeking to sequester from WIREdata; or to be more precise, it created only an empty database, a bin that the tax assessors filled with the data. It created the compartments in the bin and the instructions for sorting the data to those compartments, but those were its only innovations and their protection by copyright law is complete. To try by contract or otherwise to prevent the municipalities from revealing their own data, especially when, as we have seen, the complete data are unavailable anywhere else, might constitute copyright misuse.

Id., slip op. at 11.

The best result would have been overturning ProCD and eliminating the entire mess the next time it comes up on appeal; WIREData is not a bad second-best by any means.

Too Important to Be Left to the Politicians
Clemenceau remarked with some justification (particularly after the shoddy performance of the French military, and particularly its senior leadership, during the 1914–18 battles) that "war is too important to be left to the generals. There is a big difference between "war" and "battle," though. Exhibit A: Desert One (the abortive attempt to rescue the hostages in Tehran, which failed due to micromanagement from Washington); Exhibit B: McNamara's idiotic micromanagement of "appropriate" targets in Vietnam. Exhibit C: never mind, I think I've made my point.

   Professor Bainbridge's post this morning on "new" management theories at the DOD had me singing "Everything Old Is New Again." (That is a truly horrible event to consider; I may have perfect pitch, but I cannot sing.) When I was on active duty, newfangled "management theories" that were to be applied across the board came in about every third year. I suffered through writing mission and vision statements; I suffered through "TAC Brown" paint schemes; and more other horrors than the Geneva Convention allows. Professor Bainbridge is rightly concerned about adopting a kaizen (continuous change) management strategy for the military. My own favorite remains HP's famous "MBWA" (management by wandering around)—which works pretty well in a rear-area peacetime unit, but I hate to think what it would be like in combat.

   Where this really misses the point is that war is not battle. Politicians can, and should, manage war. One of the few core concepts that Clausewitz espoused that retains much persuasive power in strategic thinking is that "war is merely politics continued by other means." Perhaps battles would be less bloody if we put the politicians in the front lines. But we don't; and for precisely that reason, the actual management of the actual violence should be left to the professionals—the military officers. We can use help in managing the civilianized aspects of keeping a military, such as ensuring proper accounting for pay, and so on; but "cost-effectiveness" is not a valid or sound objective for military operations when costs are all translated to dollars.

   Then there's the inherent contradiction in kaizen as it relates to the military. Kaizen contemplates producing a better product by a continuous process of improvement at all stages, traditionally in management theory research, design, production, and marketing (stretching back, as Professor Bainbridge notes, to the early 20th century), with lots of interaction among them. I'm sorry, but I have a great deal of difficulty with the concept of marketing death and destruction, or with the interaction between the production of death and destruction and research on death and destruction. <SARCASM> I'm sorry, did I offend your sensibilities? </SARCASM> The end result of any military must focus on death and destruction. The politicians tell us whom to kill and what to destroy; but it's up to us to do it. Particularly since most politicians—even a few assistant secretaries of defense I could name—wouldn't recognize the Geneva or Hague Conventions if it slid up their legs and bit them in the ass.

   What Rumsfeld's initiative really seems to be doing is concentrating more and more decisionmaking authority at a higher and higher level, because only at those top levels can one observe (let alone influence) the "interaction" among marketing ("kills commies three different ways!") and production (M–16, anyone?). Not only is that megalomaniacal; it just asks for more corruption in procurement and everything else, because fewer people have to be in on the secret to make it work. <SARCASM> Of course, I would never suspect any high government official of corruption. We got rid of all of that when we fired Vice Admiral Poindexter. </SARCASM>

It's a bad day today. Escaping the future is a lot easier than escaping the past.

Professor Solum, in responding to another commentator's partisan and misconceived thoughts on the judicial confirmation crisis, concludes the following:

As frequent readers of this blog know, I have been arguing for some time that the best way out of the current downward spiral of politicization that affects both the bench and the judicial selection process is for both sides to take a long-run view of the benefits of the rule of law and the costs of politicization. But Anderson's characterization of the problem is correct, then that solution is unavailable. Why? Because Anderson's argument seems to be that restoration of the rule of law is not in the interests of the left. I disagree, in part because I believe that a doctrine strong stare decisis is part of the best formalist theory of judiging [sic], but this post has already gone on too long, and that is a topic for another day.

"Senator Schumer and the Criteria for Judicial Selection" (23 Nov 03) (emphasis added).

   I disagree for a much more fundamental reason: that we have now as close to a rule of law as we ever have had, so no "restoration" (or, in historical terms, a Restoration—which has uncomfortable parallels with the present that for the moment remain tangential) is necessary in the first place. I think Professor Solum's ultimate conclusion—that the excessive partisanship (not, as I've noted before, "politicization"—which suffers not only from inaccuracy but grammatical inelegance) is not based all that firmly in ideology, and that even if it were, the "left" does not object to the rule of law—is correct. I am pretty firmly of the left, and my research indicates that the best historical means of ensuring the advance of (European) liberalism is the rule of law. But that is a topic for another day.

I have added a reading list to the navigation panel on the right. If you follow it for a while, you might get some idea of just how strange things can seem here on the Silicon Prairie.

Doomed to Repeat It
The ghost of J. Edgar Hoover (and his pink tutu) continues to haunt the political landscape. As Professor Froomkin notes, "the FBI’s activities [in videotaping civil rights demonstrations and assembling dossiers on participants] vividly awaken memories of the FBI’s of civil rights violations the last time a paranoid Republican administration was in the White House and demonstrators were massing to protest a war." Next thing it'll be protestors of GATT meetings. Oops. I mean last thing, since that seems to have happened in Seattle.

   Of course, that assumes that we really do have a "paranoid Republican administration." Leaving aside the conceptual redundancy in that phrase, the whole WMD debate sort of validates that assumption. Not to mention the PATRIOT act and all the little niceties slipped into the pending successor, the VICTORY act.

Can You Say "Conflict of Interest"?
See? I knew you could. Apparently, however, the proprietors of Publish America cannot.

   PA is a vanity press. The test for whether an operation is a vanity test is two-part: (1) Who has legal title to the books as they come out of the bindery? If it's the author, it's self-publishing; if it's the publisher, it's not. (2) If the publisher has title to the books as they leave the bindery, what is the guaranteed flow of non-manuscript capital at the instant the first book comes out of the bindery? If it is toward the author, we're talking about commercial publishing; if, instead, it is toward the publisher, it is vanity publishing. Publish America fits in this last category; despite the nominal $1 "advance" that means that although the form of the money flow appears to be "toward the author," the other demands for inclusion of material other than the manuscript itself by PA strongly reverse the substance of that capital flow. For example, unlike a commercial publisher, PA requires authors to file (and pay for) their own copyright registration. $1 advance – $30 copyright registration fee = –$29.

   However, PA is not interested in having potential customers realize this. It is offended by those who criticize its business practices, such as deception, unfair contracts (even by industry standards), etc. For example, PA owns the most natural website address for one of its major critics—Preditors and Editors ("P&E"); the domain registration is as follows:

Registrant:
PUBLISHAMERICA, INC. (PREDITORSANDEDITORS-DOM)
[redacted]
Domain Name: PREDITORSANDEDITORS.COM
[redacted]
Record expires on 29-Oct-2005.
Record created on 29-Oct-2000.
Database last updated on 22-Nov-2003 10:56:08 EST.

PA cites P&E as one of its main critics. This alone should be enough to call PA's new website at AuthorsMarket.net (note: this is not linked so as to avoid robot problems) into question, particularly since PA discloses its ownership of that site only deep, deep into the site itself. What I found most amusing, however, were the following statements on various pages at AuthorsMarket:

   A second caveat is that science-fiction and fantasy writers have it easier. It's unfair, but such is life. As a rule of thumb, the quality bar for sci-fi and fantasy is a lot lower than for all other fiction. Therefore, beware of published authors who are self-crowned writing experts. When they tell you what to do and not to do in getting your book published, always first ask them what genre they write. If it's sci-fi or fantasy, run. They have no clue about what it is to write real-life stories, and how to find them a home. Unless you are a sci-fi or fantasy author yourself.

Statistically, this is easily disprovable. The "bar" is by far the lowest in "self-help" books. As far as the "quality" of what is in the commercial publishing category, there is such a high proportion of dreck in all publishing categories that one cannot make that kind of judgment—particularly after removing media fiction works for hire from the equation, since the quality of the latter is largely beyond the author's control.

   Let's look a little closer at those self-anointed "experts", the ones who call themselves author advocates, or watchdogs. You won't find too many of them, but they are usually loud. Their writing is typically characterized by the use of an overkill of adjectives, and by references to you being a victim of something. Their own book genre is almost always Science-Fiction or Fantasy. (Mine aren't.)
That's why some of them are actually published writers. SciFi and Fantasy are among the easier genres, requiring no believable storylines, and no believable every-day characters. (Obviously hasn't read much; and the same can be said for romance, for spy thrillers, for…) ….

   There are a few serious experts in authorland, there's no doubt about that. Christian author advocate Sally Stuart is one of them. Dan Poynter of Para Publishing is another. And there's John Kremer, a guy who more than anyone else knows the portals and pitfalls of being successful in writing. Then there's the National Writers Union, an AFL-CIO affiliate that knows what they're talking about. All these folks are unassuming, unpretending, and unbiased. When in doubt what to do or who to trust, check out their web sites.
   Who not to trust? Every one who effectively attempts to keep you from being published. And here we get into a real interesting point of shifting definitions. Poynter, Kremer, and (to a lesser extent) Stuart are all advocates of self-publishing—something that PA explicitly decries elsewhere on AuthorsMarket.net. This is nothing more than a "stupid lawyer trick."

   If everything that PA said was true, then none of us who try to keep writers from being ripped off would teach writers' workshops, recommend talented writers to commercial publishers, etc. We would all restrict our writing to "cookie-cutter" generic stuff, because that's where our talent lies. For counterexamples, try this (look in the table of contents), this (look at the second author), and this (forthcoming February 2004).

   Methinks the ethically challenged businessman doth protest too much. Particularly that bit about being strident in defense of one's viewpoint without any credibility to back it up; especially when anyone who criticizes PA for its practice is locked off of PA's bulletin board system, even authors published by PA.

   Go ahead, PA. Sue me for libel. I can back up everything I have said with documentation; and by placing your own reputation in issue, you will open your reputation and practices to extensive discovery, as part of what you must prove is that something I have said damages your reputation. I'd love to give your lawyers some… education… in Fed. R. Civ. P. 11.

Sauce for the Gander
A couple of months ago, I remarked on appropriate responses to frivolous lawsuits in the context of Fox v. Franken. (As one columnist in The New Yorker put it—I'm paraphrasing from memory, but I think this catches the essence—keeping temperamental stars happy requires more than showering of gifts; now it requires a preliminary injunction.) A jurist at the other end of the country appears to have shown that she understands this, too; and that she is willing to apply the same theory to defendants.

   Although I am sure that some experienced defense counsel out there would disagree with me, it has been my experience—keeping in mind that I do not do mass tort, product liability, personal injury, or medical malpractice work, never have, and hope never to speak those words in my professional life—that at least a substantial part, and by unscientific measure probably the majority, of the frivolous legal claims and unethical behavior that make administering justice so complex, expensive, and frustrating comes from the other side of the v. Consider, for example, the pleadings in one of my copyright matters. The defendants' counterclaims included the following gems (redacted to hide the identity of the parties):

   
• Any alleged injury suffered by Plaintiff was a proximate result of Plaintiff's own acts or omissions, and not of any conduct of Defendant. (In a copyright infringement action?)
   
• Plaintiff's claims for relief, and each of them, are barred as against Defendant because Plaintiff acknowledged, approved of, ratified, consented to, or acquiesced in the alleged conduct, if any, of Defendant. (The case was filed within a month of the plaintiff becoming aware of the infringement, after a demand letter was ignored. The remainder of the answer admits this.)
   
• Plaintiff's claims and prayer for relief, and each of them, are barred as against Defendant by the equitable doctrines of laches, waiver, and estoppel. (Same comment.)
   
• Plaintiff's claims and prayer for relief, and each of them, are barred as against Defendant by the equitable doctrine of unclean hands. (This accusation of misconduct was made with no factual allegation in support of it.)
   
• Plaintiff's claims and prayer for relief, and each of them, are barred as against Defendant on the grounds of res judicata and/or collateral estoppel. (Considering that plaintiff had never previously engaged in litigation with Defendant, either individually or as a member of a class—which would have been known to Defendant—this is just a bit disingenuous.).

I won't beat the already-knackered horse. These are actually some of the less-objectionable "affirmative defenses" raised in that matter. I do not deny that sometimes plaintiffs (and their attorneys) file frivolous lawsuits; as Judge Barnett realized, though, merely being the defendant does not give license to engage in virtually identical conduct.

Beerbeerbeerbeer
I assume that now I have your attention. The European Court of Justice certainly has the attention of at least one innkeeper in Austria. In a remarkably obtuse opinion that almost seems a parody of the early-common-law contract and tort opinions found in law school casebooks, the ECJ decided… well, that is the problem, isn't it? As screwed up as opinions in American courts tend to be, they at least state how the abstract principles that may or may not be decided for the first time in the matter concern the facts presented. Instead, the ECJ presented us with this:

1. Article 28 EC and Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs, as amended by Council Regulation (EC) No 535/97 of 17 March 1997, do not preclude the application of a provision of a bilateral agreement between a Member State and a non-member country under which a simple and indirect indication of geographical origin from that non-member country is accorded protection in the importing Member State, whether or not there is any risk of consumers being misled, and the import of a product lawfully marketed in another Member State may be prevented.

2. Article 28 EC precludes the application of a provision of a bilateral agreement between a Member State and a non-member country under which a name which in that country does not directly or indirectly refer to the geographical source of the product that it designates is accorded protection in the importing Member State, whether or not there is any risk of consumers being misled, and the import of a product lawfully marketed in another Member State may be prevented.

3. The first paragraph of Article 307 EC is to be interpreted as permitting a court of a Member State, subject to the findings to be made by that court having regard inter alia to the criteria set out in this judgment, to apply the provisions of bilateral agreements such as those at issue in the main proceedings, concluded between that State and a non-member country and according protection to a name from the non-member country, even where those provisions prove to be contrary to the EC Treaty rules, on the ground that they concern an obligation resulting from agreements concluded before the date of the accession of the Member State concerned to the European Union. Pending the success of one of the methods referred to in the second paragraph of Article 307 EC in eliminating any incompatibilities between an agreement predating that accession and the Treaty, the first paragraph of that article permits that State to continue to apply such an agreement in so far as it contains obligations which remain binding on that State under international law.

Budejovický Budvar, národní podnik and Rudolf Ammersin GmbH, No. C-216/01 (18 November 2003).

   On the other hand, this may be so obfuscatory to hide the court's embarrassment at deciding whether calling an imported "beer" "American Bud" is sufficiently distinct from the real Budweiser (brewed in the Czech Republic, from which Anheuser Busch took the name originally) so as not to infringe European trademark law. For anyone who actually has taste buds (not "Taste Buds," as that campaign ceased, has not been used in commerce for a period of five years, and therefore is no longer protectable), the underlying question is "Why?" With all of the superior brews available in Central Europe, who gives a rat's hair in the bottom of the barrel that is presumably filtered out before bottling?

   In any event, this is another Old World/New World distinction. In this particular instance, there's no question but that the New World's practice eclipses that of the Old World. Say what you will about poor reasoning, florid and hypertechnical writing, and insane reliance on irrelevant precedent that no longer intersects with the societal context that are all too common in American judicature; at least one can figure out what the holding of the case really means. Or, at minimum, says.

   If nothing else, Bud demonstrates that at least some aspects of the "advisory opinions doctrine"—that US courts will not issue advisory opinions, but instead restrict themselves to resolving live disputes—have unforeseen value. That is exactly what Bud is: an advisory opinion. In the end, I seriously doubt that the ECJ's interpretation really helps either party conform its conduct to the law. IMNSHO, if an opinion does not do so, it is a worthless waste of dead trees (or, in this instance, dead trees and live translators).

Yesterday, I questioned whether I would rather be in Philadelphia. After a decision issued by the Ninth Circuit today, however, I'm damned sure I wouldn't want to be in Winslow, Arizona. In Gallo v. US District Court (9th Cir., Nov. 19, 2003) (PDF, 125kb), the Ninth Circuit committed about sixteen logical errors in reaching the conclusion that an attorney who had previously been allowed to be a full member of the bar of the US District Court for the District of Arizona, even though not a member of the Arizona state bar, had no cause for complaint when the District Court tightened its rules to require pro hac vice admission for lawyers who are not members of the Arizona state bar. The writing quality of the opinion leaves a lot to be desired, primarily because it fails to put all of the logical antecedants in the same paragraph at any point. The most visible instance exposing those errors is:

We recognize that the pro hac vice option requires the attorney seeking such admission to associate with a member of the District Court bar who can sign the necessary court documents. This may be construed as burdensome for the attorney as well as expensive for the client. Also, the decision to grant pro hac vice status is discretionary. Nonetheless, we find these burdens insufficient to constitute grounds for mandating a federal bar to preserve the membership of attorneys who are not members of the bar of the associated state. Requiring either membership in the State Bar of Arizona or pro hac vice status is rationally tailored to serve the District Court’s legitimate interest in regulating the conduct and ethical fitness of lawyers who practice before it.

Slip op. at 16308–09 (citations and footnote omitted).

This argument fails on multiple levels, no matter what "well established case law" seems to require. First, it implies that the Arizona state bar is somehow more capable of disciplining attorneys than any other state to which a federal court might refer disciplinary charges. Considering just how few lawyers are ever disciplined anywhere through a federal court's referral, there is no rational basis for this assumption; only a speculative one. Second, and somewhat more interestingly, this argument necessarily assumes that the District Court's inherent powers (and other powers given by rule, such as Fed. R. Civ. P. 11 and 37) are not sufficient either as a deterrent to unprofessional conduct or as a response to such conduct. The argument also neglects to note that the District Court can choose to disbar a member under its own rules without reference to state rules. Finally, the argument ignores the common practice of reciprocal discipline. In other words, if a lawyer licensed in both jurisdictions A and B is disciplined in jurisdiction A, jurisdiction B will ordinarily impose an identical sanction on little more than a motion.

The corollary argument that comity requires this result—that is, respect for Arizona's ability to control attorneys practicing in Arizona—cuts both ways. The necessary implication is that other states—say, California—are not capable of exercising similar control, even though every state's licensing rules explicitly put attorneys on notice that their behavior throughout the known universe can form the basis for disciplinary action in the state(s) where they are licensed. You can't have it both ways, guys. <SARCASM> Unless, of course, the legal profession is supposed to act more like the Confederate States of America than the United States of America… </SARCASM>

As lawyers, we can manage to really get hung up on minutiae. Today, Professor Bainbridge blawgs on whether insider trading rules should be waivable. There are a couple of much simpler reasons than the perfectly valid one that he mentions that they should be mandatory. (Yes, this does have something to do with authors' and other content creators' rights, as perhaps we'll see a few posts down the road.)

   
• Although the "fraud on the market" theory is not beloved of corporation law scholars, and most especially not of the securities-defense bar, this is actually a paradigmatic instance of such a fraud. Under the efficient market hypothesis that underlies our securities laws, the markets discount all known information into the price of a security over some relatively short time (it is greater than zero, but presumably smaller than a breadbasket). Allowing trades based on information that the market cannot discount because it is not known to the market inherently means that transactions will occur at other than market prices. Not only is this a subtraction of necessary information from the market, but ironically it adds new distorting information: the insider trades themselves are information that, under the efficient market hypothesis, will influence the price of a security once they become known. And they will become known at some point, absent tax fraud.
   
• Professor Bainbridge's scenario asks (and ultimately denies) whether insider trading rules could be waived by both the securities issuer and the prospective insider trader. Of course, this artificially ignores the effects of such a transaction on two other parties. First, there is the market itself, and more particularly the market-maker in the securities. A trade at an unfair value may harm a market-maker's commissions, ability to maintain an orderly market in that security, and ability to balance exposure to various securities. More importantly, however, a "trade" implies that there is somebody else involved. Professor Bainbridge's model posits that the "insider trade" is the sale of a closely held security from the issuer to the insider. Eventually, however, those securities will be sold to a third, non-insider party. If the insider is engaging in arbitrage—buying a $20 stock for $15, on the knowledge that earnings will not meet expectations, then immediately selling the stock or a derivative instrument at the $20 market price, making a quick 33% profit—it's pretty obvious that the "ignorant" party on the other side of the unwinding of the arbitrage has been harmed. Since that harm was without knowledge, it's rather silly to assume that the parties with knowledge can, between themselves, waive that third party's rights.

On the Whole, Would I Rather Be in Philadelphia?

And if so, must I be a member of the Pennsylvania bar? At present, that is the rule. Lawyers are licensed state by state. For example, my controlling license is in Illinois (although I am also licensed in a few other places). Thus, when I have an occasional matter in, say, California, I must get the specific permission of a California court to be involved in it. This is called pro hac vice admission, and extends even to the federal courts—I had to apply for pro hac vice status to appear in the US District Court for the Central District of California in Ellison v. Robertson.

If you think this sounds like a script idea that was rejected for Dumb and Dumberer, you're right. Once upon a time, when state law predominated in everything and the now-archaic Field Code used in New York state courts would have been considered a vast simplification of legal procedure, perhaps there was some non-competition-restricting value to the practice. However, even though every state continues to have quirks in its substantive law and rules of procedure, those quirks are easily accessible with even moderate research and cooperation between lawyers; and there is no excuse whatsoever for Federal courts requiring membership in the local state bar. (Sensibly, some Federal courts, such as the District of Connecticut, do not.)

What this practice does do is force two anticompetitive practices that both harm clients. First, some states, such as Delaware, have an inordinate proportion of certain kinds of litigation, even though the clients may well be thousands of miles away. In order to have a Delaware-chartered corporation's lawsuit (either defensively or offensively) heard in the Delaware courts, one must hire Delaware counsel in addition to the counsel one would otherwise prefer, who may well be more competent (and is almost certainly more familiar with the facts) than the required Delaware counsel. This makes just as much sense as requiring Microsoft to have its support staff licensed in specific states to deal with broken databases that are located outside of Washington state. It also drives up prices for both the lawyers themselves—artificial fee enhancement to cover expenses and fees paid to outside counsel is just the tip of the iceberg, not to mention the number of additional meetings and memos—and consumers, who must price-shop in the local community for attorneys who may not be competent in the subject matter. For example, I practice author/creator's side publishing and intellectual property law, with a smattering of other matters (primarily attorney ethics and athlete drug testing). I am the last lawyer someone with a child custody problem should consider; but, if the child custody dispute must be heard in an Illinois court and the client has moved to New Hampshire, the client could not get a family-law specialist—even the leading expert in the nation on that particular problem, or conversely competent counsel who is less expensive—to do the work without at least hiring me as local counsel. (As a general rule, courts will not approve "naked" pro hac vice petitions—one must also designate local counsel. Some Delaware firms make their respective livings on this basis, doing little work other than appearing as local counsel in the Court of Chancery for corporations chartered in Delaware but headquartered elsewhere.)

More subtly, this practice encourages a "not invented here" syndrome that inhibits both the uniformity and development of the law. Consider, for example, the interstate issues raised in Perry v. Household Retail Servs., Inc., et al., 953 F. Supp. 1365, 953 F. Supp. 1371, 953 F. Supp. 1378 (M.D. Ala. 1996) N.B. I was the primary counsel in those matters—pro hac vice, of course. Until I convinced the court that Illinois law—the place where Household had its headquarters—would apply equally to that corporation's conduct in Alabama in a predatory lending context, this was a "pure federal law" case only, because Alabama was one of the few states that did not have a modern UDAP statute to protect consumers from certain kinds of deceptive acts, practices, and statements. I brought the Illinois law in; the Perry decisions have been cited a number of times since in Alabama courts to protect consumers from even more egregious conduct than I was trying to deal with at that time. Thus, bringing in out-of-state counsel with a fresh perspective both advanced the state of the law and made the law more nationally consistent (even if just a little bit) concerning multistate businesses. (And I didn't have much trouble dealing with "arcane" Alabama issues such as the particular Alabama standards for piercing a corporate veil.)

I wish the states would get out of the business of lawyer regulation. The continued problems demonstrate that they're not competent to do so, or at least choose not to do so. The least that states can do is respect the Sixth Amendment right to counsel of one's own choice—without regard to which side of some arbitrary boundary the attorney has his or her office. If counsel is capable of handling the matter, that is all that should matter. Restrictions on multijurisdictional practice are an implicit accusation that out-of-state counsel is not competent and capable of representing the interests of local parties (or out-of-state parties involuntarily hauled into court). We don't need that kind of Balkanization, whether from a logical or any other point of view. And since the US is now negotiating a treaty that would prohibit this same xenophobia in international provisions of services, explicity including legal services, it seems to me that logic compels that we avoid it within the nation.

<SARCASM> Sorry. I forgot. I'm still under the misimpression that law is a profession with a duty to serve clients' best interests, not a cutthroat business. </SARCASM>

Taz Wuz Here
That steam that you might see coming off your monitor is coming from my ears. Attorneys in multidisciplinary operations need to remember that, even when they are operating in discipline X—which may be completely unregulated—they are still subject to the disciplinary rules and requirements applicable to attorneys, especially when they rely upon their law licenses as means to attract business in that other discipline. I just got a letter today in a matter involving not one, not two, but three layers of attorneys in multidisciplinary operations that purported to respond to a complaint made by my client three years ago. The actual "response" is over a year old; and the letter I got today is six weeks after the most recent of four letters I sent, on letterhead, requesting the status of the complaint.

   Said multidisciplinary attorneys should be very happy that the applicable SOL is six years; if it had been one year, my client would have been out of luck. At least as to the top two layers, this wasn't even adversarial—they were supposed to be the "ombudsmanlike" organization resolving the underlying complaint! Nonetheless, this is going to require some serious consideration of my reporting obligations under IRPC 8.4 regarding out-of-state counsel.

For those who haven't yet figured it out, the preceding post is based on the concept that more than one party can be "at fault" in any circumstances, and particularly in political disputes. Even if the "blame" clearly attaches to one (or more) party(ies) in greater proportion than to other(s), that does not mean that the "most blameworthy" position must therefore be rejected in its entirety in favor of the "less blameworthy" position. Seventeen wrongs, however one strings them together, do not make a right, a "right" in the legal sense, or a sound conclusion.

   I realize that sounds pretty bizarre coming from a career military officer, particularly one whose career was more than most intertwined with political policy. Two words suffice in response: William Calley. A fuller response would require a somewhat longer and more involved essay—10,000 words or so, with footnotes—and reference to a number of documents not ordinarily available to the public. Nonetheless, there is a distinct parallel here beyond the question of "following orders," beyond the concept of "orders prohibited by higher law": that immediate circumstances do not and cannot justify undermining that to which one has sworn allegiance. In both Calley's case and in the case of President Bush and the Senators involved, their oath is to the Constitution. That should be enough; but it is pretty obvious that for the past several generations we have been electing individuals with all the maturity of the average third-grader to office. (Since I am no longer subject to court-martial for violating Article 88, I can say that.)

Text Without Context as Constitutional "Evidence"
I am afraid that this time Professor Solum has gone much too far in his citation to evidence that is, by its own terms, irrelevant in support of a position based upon a dubious conception of textualism and originalism. Solum's point—a point which has some abstract attraction—is that the Senate's internal filibuster rule should not and cannot be used to overcome its Constitutional duty to provide "advice and consent" to the President on appointments to Federal office. Regardless of whether one agrees with this conclusion, the "evidence" provided does not support it.

   Consider, to start with, the phrase "advice and consent." Nobody really knows what it means. Under Marshall's edict that "it is a Constitution that we are expounding," I do not believe that it can be given an explicit meaning—and Marshall's edict is, ironically enough, the only form of "originalism" that is supported both internally and externally in the Constitution and the surrounding debates without much dissent. The point of the Constitution is that it is vague in most respects and therefore can be adapted to unforeseen conditions without radical change to its text. In any event, as I noted a few days back, any reasonable interpretation of the phrase "advice and consent" requires two-way communication. Unfortunately, the recent efforts to do away with the "blue slip" system are merely a symptom of the failure of the modern polity to actually communicate across party lines.

   To my mind, this is where Solum goes most seriously astray. Washington was among the most vocal opponents of partisan politics, both prior to and while he was in office. Washington's letter quoted by Solum contains a critical implicit assumption: that neither policy nor structure has become a captive of partisanship. (Washington was almost certainly thinking of this in July through September of 1789, based on other writings.) So, then, does Washington's statement have any value as evidence of intent when it concerns circumstances that have arisen that are outside its implicit boundary conditions? Even if one accepts "intent" or "originalism" as the primary, or even tie-breaking, consideration in interpreting a Constitutional text, it cannot. In this context, it is not even persuasive.

   Perhaps Solum's ultimate conclusion—that "advice and consent" somehow requires the Senate to give an up-or-down vote on every candidate within a reasonable time, and that failure to do so somehow gives the President justification to evade the Senate's failure to give consent—reflects the reality of the need to govern. Perhaps it is even sound policy. However, such a conclusion is neither compelled by nor even particularly advanced by the argument and evidence presented. We need not go down some slippery slope to requiring the Senate to approve Bozo the Clown (or G. Harrold Carswell) if nominated as Chief Justice of the Supreme Court of the United States by the President to see that at least the argument fails to persuade.

   The irony that this is starting to sound a lot like the "case or controversy" argument has not escaped me. For now, I am sticking to the traditional interpretation of that phrase, even though I am not at all certain that the traditional interpretation is internally consistent or consistent with the concept of Attorney General contemporaneous to the 18th Century. But that only reinforces my point: reliance on single pieces of evidence, wrenched from their immediate and overall context, to support a non-self-evident interpretation outside the conception of the provider of the evidence is not persuasive. <SARCASM> Perhaps that itself only demonstrates that my time before law school was spent largely on literary interpretation and interpretation of political documents, statements, and actions originating in other cultures, and that therefore I ought not be trusted to interpret my own political culture. </SARCASM> Even though, as an officer of the court (as are all lawyers), I have a duty to do so.

I've spent most of the day wrestling with theoretical issues, including some pleasure reading. On theoretical issues, naturally. I think I came across yet more proof that lawyers and the law need to pay more attention to the arts, and more specifically to novelists.

The legal process will never fully heal us. The failure of the law to deliver all that we ask from it is probably the essential theme of all of my novels…. I revere the enterprise of the law, but it does not function flawlessly. It neither finds the truth nor dispenses justice with the reliability it is obliged to claim. The law's sharp-edged rules never cut through the murk of moral ambiguity, nor do they fully comprehend or address the complexities of human motivation and intention. And just punishment alone does not render the world one we want to live in.

Murder takes us to the Land's End of the law. Our horror and revulsion undermine our capacity to reason—and prove that justice alone will not make us whole. Only the attachments we have to each other, the antipodal experience of what goes on in the moment a murderer kills, can accomplish that. In the face of the cruelties we visit upon one another, murder being the gravest wrong among them, a sense of meaning and connection must come from outside the law.

Scott Turow, Ultimate Punishment: A Lawyer's Reflections on Dealing With the Death Penalty (2003) at 108–09 (emphasis added).

Without a single citation to authority, Turow makes a case against the death penalty on the ground not that nobody deserves it—his running example is John Wayne Gacy; I might choose others, for different reasons—but that in reality no legal system can adequately ensure that all those who deserve the final sanction receive it while ensuring that all those who do not are never faced with it. The unspoken statement here is that purposefully causing the death of another is an aberration that must inform not just murder and the sanction for it, but the process of determining in the cold, hard light of reason that there remains not just no reasonable, but no tenable, doubt as to the fitness of death as a sanction for societal misconduct.

Turow's reasoning also applies to civil litigation in this country, which has largely turned into a system of weregeld—payment of money to a victim in compensation. But this could lead into unresolvable questions of levels of proof and the propriety of punitive damages, particularly when they seem to have no deterrent effect upon corporate behavior whatsoever. If they did, there would have been no Enron or WorldCom or mutual-fund-illusory-market-timing scandals—and those are just the ones that we know about.

Rather than joining Professor Bainbridge for postprandial port, I'll stick to my own version of passing the bar; no doubt some readers will think I began imbibing before writing this post, or indeed much else that appears here. Back to the Isle of Jura, then. (Which is both a fine single-malt scotch and the residence of George Orwell during his last months.)

Defining "Politics"

Professor Bainbridge made the following observation earlier today regarding judicial nominations:

I suggest that the politicization of the judicial confirmation process is a symptom of the broader legalization of politics. We live in an era characterized by what Mary Ann Glendon aptly calls "rights talk”; i.e., political rhetoric dressed up in the terminology of legal rights.

"The Politicization of the Bench and the Legalization of Politics".

It all depends upon what one means by "politics." In this discussion, the term is employed almost interchangeably by some commentators—one of them being Daniel Henninger; I am afraid I must vehemently disagree with Professor Bainbridge on the internal reasoning of the editorial to which he refers, but that is for another time—to mean three different, not necessarily congruent, concepts:

• Partisanship, in this country best demonstrated by the Democrat/Republican struggles. Partisanship often is sufficient—consider, for example, all the conservative Southern Democrats who voted to enroll Tip O'Neill as Speaker of the House—to overcome real interests in
• Ideological values, such as Professor Glendon's apt observation on political rhetoric, which in turn often masks
• Procedural aggrandizement, which is perhaps best illustrated by Emmanuel Goldstein's aphorism "The object of power is power."

I believe it foolish to pretend that all forms of politics can ever be excised from the law. Even if it is not in the judiciary, it will inherently appear in the kinds of cases that make it all the way to an appeals court—because procedural aggrandizement is intimately connected with having the resources to pursue an appeal in the first place.

All of that said, I hear Professor Bainbridge (and others) demanding—and rightly so—an end to the dominance of the first, and to some extent the third, "kind" of politics in judicial nominations. As Orwell noted in a not too different context, "The opinion that art should have nothing to do with politics is itself a political attitude." ("Why I Write") Any good lawyer can completely change the tenor of an argument through redefinition of terms. To keep this worthwhile discussion from becoming overly prone to misinterpretation on that basis, a writer should make every effort to be at least internally consistent in his or her use of such broad terms—and that includes the context of quotations and references (part of the source of my dislike for Henninger's editorial). This is part of that highfalutin' concept of "intellectual honesty." Admittedly, that is honored more when breached than when required.

In another example of the excesses of marketing culture in this country, Rosie and Gruner+Jahr were essentially told by the judge to stop using the courts as a forum for playground antics. According to this morning's New York Times,

After each side in the battle of blame over the demise of Rosie magazine finished presenting its legal arguments, it took all of one minute for the judge to suggest yesterday that the contract dispute was little more than a schoolyard spat writ large. Justice Ira Gammerman of State Supreme Court in Manhattan said in effect that Gruner & Jahr USA Publishing and Rosie O'Donnell may deserve each other, but not monetary damages. "We're just dealing with bragging rights aside from attorneys' fees," Justice Gammerman said.

No Damages in Rosie Case, Judge Hints (13 November 2003) (phony paragraphing removed for clarity).

   The real problem here is that the marketing culture "created" a hybrid magazine out of the old McCall's that has appeal essentially only to other members of the marketing culture. This is the real problem with celebrity-focused products. As reprehensible and shallow as People, Us, and so on often are, they at least have some diversity in their focus. Martha Stewart's difficulties—and her eponymous magazine's—point out another pitfall of trying to exploit a single celebrity in a different forum.

   As the judge noted, however, the real problem is that both sides refused to take responsibility for their own actions and flawed concepts and used the courts to blame each other. How many people and organizations with real disputes have had their ability to obtain counsel or have their cases heard in a timely fashion impaired by the resources expended on this crap? Part of being a professional is sometimes (about 60% of the time in my practice) telling a potential client that resorting to the courts does not have a reasonable probability of resulting in a reasonable remedy for the actual harm suffered. The lawyers on both sides in this matter appear to have forgotten that: Gruner+Jahr (which, by the way, is a "bad actor" in terms of contracts offered to freelance writers) sued for $100 million in purported losses, and O'Donnell countersued for a substantial sum in purported losses. O'Donnell's actual investment was around $6 million, plus herself. Anybody who relies on a "current" version of a celebrity's "self" upon which to hang a nine-figure open-ended business enterprise is at the least intellectually challenged. The parties—and their lawyers—are advised to chill.

Back From the Con and Ready to Party
Or, as Jack might say, "I'm baaaaaaaaack!"

   Rather an interesting little get-together this past weekend in Chicago. One of the (many, indeed countless) sins of my misspent youth—no wisecracks about the Cretaceous Era, please—is an appreciation for speculative fiction on the literary level. What's speculative fiction? Well, to quote one of my clients…

[W]hen we get right down to the blood and bones, the beginning of speculative fiction was the first Cro-Magnon who imagined what it was out there snuffling around in the darkness just beyond his fire. If he envisioned it as having nine heads, bee-faceted eyes, fire-breathing jaws, sneakers and a tattersall vest, he was creating speculative fiction. If he saw it as a mountain lion, he was probably just au courant, and he doesn't count. Besides, he was chicken.

*  *  *

[S]peculative fiction (notice how I cleverly avoid using the misnomer "science fiction"? getting the message, friends? you've bought one of those s——e f——n anthologies and didn't even know it! well you've blown your bread, so you might as well hang around and get educated) is the most fertile ground for the growth of a writing talent without boundaries, with horizons that seem never to get any closer.

Harlan Ellison, "Introduction: Thirty-two Soothsayers," in Dangerous Visions (1967).

   That includes everything from Star Trek to Tolkein, and a helluva lot between, around, over, and through. If it's good enough for Saramago, Orwell, Garcia Marquez, Cervantes, Swift, and Le Guin, it's good enough to be taken seriously. After all, "mainstream" fiction includes such wonderful examples as this one and this one (I don't want searchable references to this dreck), so "inherent quality" can't possibly be the issue. Maybe too many lit'rary folk are just chicken…

Harry Potter and the Antitrust Conspiracy

According to today's New York Times, R.R. Donnelly (the company that prints both the Yellow Pages and the last couple of Harry Potter books) agreed to merge with Moore Wallace, which in turn is a relatively recent merger product of Wallace Computer Systems and Moore Business Forms.

   Yawn. Why should anybody in publishing care?

   Well, leaving aside the reputation of the proposed CEO (Mark Angelson, currently CEO of Moore Wallace) as a "cost cutter," this illustrates some of the problems with both vertical and horizontal integration in antitrust. "'We print the phone bills and they print the phone book,' Mr. Angelson said in describing the logic of combining the companies. 'This is the quintessential strategic deal.'" Those who remember the shoddy quality of the casebound edition of Harry Potter and the Goblet of Fire—copies began falling apart before they had been read through the first time—and (rightly) blamed it on a printer better known for printing the Yellow Pages, catalogs, and similar works intended for occasionally browsing and short-term obsolescence (I suppose I should expect little better from Scholastic, but that's for another time) may start wondering whether there will be a bound-in carbonless order form for Book 7 in Book 6.

On the Road Again…

…striking terror into the hearts of publishers four years behind on paying royalties… Actually, just on the road until Wednesday (12 November); posting will be sporadic at best.

As proof that I don't always agree with Professor Bainbridge, I must disagree on first principles with his approval of Brian Anderson's screed in today's WSJ. Professor Bainbridge quotes Anderson as saying

For two years, Sen. Schumer has waged a campaign to subvert the criteria by which the Senate ratifies presidential judicial picks. For much of American history, the Senate, in its confirmation of judges, has relied on principles laid down by Alexander Hamilton in The Federalist: integrity, intelligence and temperament, and faithfulness to the rule of law -- terms on which President Bush's picks, Ms. Brown included, pass with high marks. But instead of Hamiltonian standards, Mr. Schumer insists that senators must make a judge's "ideology" their principal concern. By this he means the judge's private political opinions, as well as the political results his decisions have led to in past cases and could lead to in the future. Judges whose views on affirmative action and abortion are outside the "mainstream" should be disqualified from sitting on the federal bench, regardless of competence. As for the definition of "mainstream," Schumerism simply holds that conservative are, ipso facto, "extremist."

(I do not subscribe to the WSJ, so I am assuming that this is a correct quotation and not out of context.)

   The first principle involved here is "advice and consent." Forget Hamilton's ex post interpretation, which is at most persuasive authority and not binding precedent. (Given Hamilton's other views on the judiciary, as expressed in both The Federalist and other writings, I am not even certain that he would agree with Anderson's interpretation.) The phrase "advice and consent" could mean many things, but all of the reasonable interpretations require two-way communication—not rubber-stamping of nominees. I will not go into the problems with Anderson's factual predicates, specifically including the implication that Senator Schumer originated the "ideological litmus test" for judicial candidates.

   Sauce for the goose is sauce for the gander. Perhaps Mr. Anderson should have considered the behavior of Senator Hatch (among others) during the Clinton Administration; or the stranglehold on legislation in the House provided by the Rules Committee; or any of a variety of other problems. That his ire focusses on confirmation of high government officials who cannot be voted out of office at the next election says volumes about his priorities; and they are not complimentary volumes. Although his article does not apparently pretend to deal with anything except judicial nominations, internal consistancy—if it is achieved—would require some very troubling results.

   N.B. I was on record as favoring Estrada because I think he's a smart individual who would change his mind when required, and I'd rather practice before that kind of judge than one who is hidebound and predictable. Favorable decisions from the latter have an unfortunate tendency to backfire. I am no fan of filibusters; neither am I a fan of ideological litmus tests at any stage of the process, most particularly including consideration of nominees before the nominations are sent to the Senate. That's how we almost ended up with a champion of mediocrity sitting on the Supreme Court during the Nixon Administration.

A priceless comment from Neil Gaiman:

While I was sick I grew an accidental beard, and once she'd finished cutting my hair Wendy-from-Hair-Police decided to do things to the beard, on the basis that whatever she did, I'd still get rid of it in a couple of days. She wound up turning it into an extremely sinister Van Dyck, which has the effect of making me look, well, extremely sinister. I now look like the sort of person who, when the hero says "but -- but you promised that if we did what you asked, you'd spare the Earth, and, and we brought you the girl. Dammit, you promised!" nods thoughfully and says "I lied," as he reaches out to press the red button marked Press Here To Blow Up Planet.

Bond villain, anyone?

Still More Amazon Antics

After over a week, I finally was able to get Amazon to take down some copyright violations in its "search inside the book" feature (see discussion beginning on 28 October). Now the fun begins.

Many of my clients do not write strictly at book length; they instead write short fiction, poetry, articles, etc. These are often later collected (that is, put into book form along with other material by the same author) or anthologized (put into book form along with other material by other authors). That week-long struggle was for one book including works by one client. That client alone has over 30 other books listed on Amazon that include his short works, most of which appear to be included in the "search inside the book" feature. Thus, I'll get to use my own sample takedown letter at lot over the next week.

What this really points out more than anything else is that S&M dorks don't care about legalities. Only someone who had no familiarity with Tasini (PDF, 130kb) could have conceived of this program, or at least conceived of it without running immediately to the legal department for advice. (That goes for you, too, Google and B&N; don't think my clients and I are not watching.) Instead, because getting a solid legal review might have derailed this neato idea before it started, whoever came up with it probably started lots of planning in an effort, whether conscious or not, to build so much momentum that it could not be easily derailed by some crummy lawyer "who doesn't understand sales in the first place." The hesitations in discussions with various people have been rather revealing in that regard. Not revealing in the sort of way that is admissible in court, or that a jury might pay attention to; but revealing in ways that those of us experienced in extracting information from unenthusiastic/uncooperative interviewees might note.

Strawberry, Not Vanilla

Over at The Plainsman, there's a short and quick analysis (because the HTML appears broken, search for "political compass") of various responses to the Political Compass quiz. I've been accused—unjustly, I might add—of being a "vanilla liberal." I'm not; and the reason(s) that I am not point out three serious flaws in the Political Compass.

Perhaps most important, the Political Compass either treats all issues as equally important or has a hidden weighting method that may not match the individual's. For example, on the first page, one finds these two questions:

• I'd always support my country, whether it was right or wrong.
• The growing fusion between information and entertainment is a worrying contribution to the public's shrinking attention span.

Needless to say, most people will not weight these items equally. I certainly don't; and how I weight them depends on the context. Just what exactly does "support my country" mean? A verbal expression? A willingness to "kill commies for mommy"? Further, there is an attempt to contrast an attitude with a potential action using the same unsatisfactory rating scale (SA/A/D/SD) so beloved of social scientists who can't seem to accept that some people will have neutral or situational answers to broad questions (the second serious flaw).

The most subtle error, though, is in failure to add a third axis. The two-dimensional "political compass" is actually even more misleading than is the one-dimensional "left or right" distinction, because it adds a dimension on "libertarian/authoritarian" issues that does not account at all for objections/preferences as to means of action. Returning to that first error, "supporting my country" might involve harsh language; might involve an expectation of national economic or military action; might involve personal involvement in military action; might involve personal involvement in asymmetric warfare (such as becoming a guerrilla in a resistance movement). The argument gets no better on other rights issues. Perhaps the best proof of this is that I have not replicated results in several other sessions with the compass "test;" this seems most correlated with how much I've had to deal with the consequences of misuse of discretion in the last few hours.

Most interestingly, the "compass" fails to account for those of us who hold strong personal opinions but believe not just in letting everyone "do their own thing"—the purported traditional "libertarian" position—but actively believe that increasing the diversity of ideas and positions actually expressed strengthens the complete spectrum of all ideas and positions, including one's own. Since this resembles at the surface level "social Darwinism," a theory that is definitely out of fashion, modern academics generally won't consider it. Thus, I'm a strawberry liberal, not vanilla—because I do and will. But that is an argument for another time, perhaps. In any event, the "compass" is a more precise instrument than the "left/right" distinction; but, as any chemist or other laboratory scientist could tell you, that does not mean it is any more accurate.

Sometimes the ignorance of people with self-interested positions gets really astounding. Consider, for example, this statement, in response to Illinois state legislation that would allow decertification of police officers for committing perjury in a capital trial (or presumably investigation) without a criminal conviction of the officer for perjury:

"There's no other profession, licensed or certified in Illinois, that's held to a lesser standard of proof in criminal accusations," a distinction police officers should not hold, said Mark Donahue, president of the Chicago lodge of the Fraternal Order of Police.

Can you say "ignorant bastard" three times fast? I can name at least three professions in Illinois that could be held to such a standard:

   
1. Lawyers. A pattern of misleading tribunals as to controlling law or the underlying facts of a case can result in sanctions, suspension, or even disbarment.    
2. Doctors. A pattern of knowingly false certifications of insurance "statements of need" can result in censure, suspension, or loss of medical license.    
3. Military officers (some of whom are stationed in Illinois, or are Illinois residents). Don't even get me started on this one.

   What a dork. Since what he has made is a false statement, perhaps we need to inquire into whether it was a knowingly false statement made in an attempt to influence the legislative process…

Lovely. More at The New York Times about bestsellers for no discernable reason. I just so appreciate it when these idiots write stories that reinforce the perception of authors as self-indulgent idiots.

   Postscript: Yes, I would characterize the author of that article as such, based on her other work for the New York Times. Phhhht.

Of Screws and Hammers
It appears that Diebold—the biggest maker of equipment, both electronic and otherwise, for handling bank deposits, and not incidentally a major player in the shift to electronic voting—has decided to use the hammer provided by the DMCA in an attempt to squelch criticism of its electronic voting systems. As reported this morning in the New York Times,

   Diebold Election Systems, which makes voting machines, is waging legal war against grass-roots advocates, including dozens of college students, who are posting on the Internet copies of the company’s internal communications about its electronic voting machines.
   The students say that, by trying to spread the word about problems with the company’s software, they are performing a valuable form of electronic civil disobedience, one that has broad implications for American society. They also contend that they are protected by fair use exceptions in copyright law.
   Diebold, however, says it is a case of copyright infringement, and has sent cease-and-desist orders to the students and, in many cases, their colleges, demanding that the 15,000 e-mail messages and memorandums be removed from each Web site. “We reserve the right to protect that which we feel is proprietary,” a spokesman for Diebold, David Bear, said.

John Schwartz, "File Sharing Pits Copyright Against Free Speech" (03 Nov 03) (emphasis added).

   I'm afraid that Mr. Bear obviously flunked copyright in law school, if he is a lawyer; or that whatever member of the legal department at Diebold briefed him on the relevant law before he made this statement did. Copyright does not, and cannot, protect "that which we feel is proprietary." It can protect only expression of protectable elements. Diebold's internal memos are important not for their expression, but for their content; they are thus better understood as trade secrets. Basically, using the DMCA to try to force takedown of trade secrets that are no longer secret is a serious misapplication of law, akin to pounding screws in with a hammer.

   A comparison to music filesharing—as explicitly invited by the misleading title of the article—makes this clearer. Let's consider Paul Simon's "The Sound of Silence" for a moment. If I were to take a recording of that piece done by Paul Simon—live, off an album, whatever—and post it as an MP3 for anyone to retrieve, that would constitute a copyright violation under the reasoning of Napster (and more cases than I care to cite otherwise, not to mention under the text of the Copyright Act itself and even the Intellectual Property Clause). If, however, I record a rousing rendition of the Central Illinois Kazoo and Musical Saw Orchestra's interpretation of the song, even maintaining absolutely fidelity to the lyrics and musical phrasing (within the technological limits of the instruments) and post it—properly labelled—on the Internet, I have not actually infringed Mr. Simon's copyright. I am liable under another section of the act for paying the mechanical reproduction fee, but that's another issue entirely—and one unique to recorded music. Mr. Simon could not properly use the DMCA to force me to take down the CIKMSO's version, because the DMCA does not apply.

   Diebold wants a different sound of silence: silent criticism based upon fairly damning internal documents that have been released into the wild. Leaving aside the "comment on issue of public importance" aspect of fair use (which is a compelling defense as I see it), the documents in question consist of nonoriginal/noncreative expression that would get minimal protection in any event. I would be really surprised if they have been registered with the Copyright Office, because that requires that they be revealed; and that is the exact opposite of what Diebold appears to want. "Proprietary" information may under some circumstances fall inside the Copyright Act; this is at best a marginal case.

   We want information. I am not a number! I am a free voter! [insert maniacal laughter here]

I'm not much of a corporation-law scholar. I do not pretend to know the fine distinctions between Delaware corporate law as declared by its Court of Chancery and, say, Illinois corporate law (and I only know much of the latter because it was on the bar exam, and I try to keep somewhat current even without a CLE requirement). However, one thing that I did note when taking various corporation law courses was—not to put too fine a point on it—rampant myopia. Professor Bainbridge noted Henry Manne's objection to this problem (although somewhat less insultingly).

   This leads me to a wild proposition. The English language is extraordinarily difficult for a nonnative speaker to learn for a variety of reasons; probably the least-remarked-upon is the tendency to use a single word to mean contradictory things, even in the same context. Consider, for example, the term "equity." In legal usage, "equity" ordinarily refers to nonmonetary remedial schemes that might be used to enforce someone's rights. The classic example is an injunction; so is an order of specific performance (that is, requiring someone to do exactly what a contract calls for, such as sell a house on a specific date at a specific price to a specific buyer instead of to a later, better offer). "Equity" and "equitable" are also used somewhat loosely as terms for "what is fair and just." However, in corporate and securities law, equity refers specifically to an accountant's calculation of monetary capital—something that, in traditional legal usage, might be classified as "law" or "damages," and not "equity" or "chancery." And once one throws the bankruptcy usage of "equity" back in, with its inherently contradictory meanings for "shareholder's equity," one basis for Professors Manne and Bainbridge's questioning of corporate-law scholarship becomes quite clear. Perhaps it is not the basis they were thinking of; but the need to look at fundamental issues, instead of merely arguing about how many boards of directors can dance on the staple in their respective directors' E&O insurance policies, seems to be their point.

   None of this is intended to disparage the generally pretty smart judges who sit on Delaware's Court of Chancery. It is not even to disparage the intelligence or capability of corporate law scholars. It is only to suggest that perhaps, just perhaps, they need to have their depth of vision checked.