20 January 2004

An interesting story in the National Law Journal on the Consumers' Union-Suzuki matter. The most interesting remark is:

Suzuki got a break when a 9th Circuit majority found a difference between a loss at trial and a loss afterward. Bose [v. Consumers Union of the U.S. Inc., 466 U.S. 485 (1984)] applies only to post-trial verdicts, the court said, so it was not required to afford C.U. any more latitude than any other defendant in any other type of case. Suzuki had claimed the magazine reported with actual malice. The 9th Circuit said that is a triable issue of fact and remanded the case for trial. In a later dissent, Judge Alex Kozinski railed against the court's failure to follow Bose. "If C.U. can be forced to go to trial after this thorough and candid disclosure of its methods," he wrote, "it will be impossible to issue a meaningful consumer review that a band of determined lawyers can't pick apart in front of a jury."

Andrew Harris, "A Run at the Streak" (19 Jan 04) (fake paragraphing removed for clarity).

Should CU lose, and the loss be upheld on appeal—I consider this highly unlikely, but anything can happen in a jury trial—this raises some interesting issues for book reviewers. Consider Author X, who is upset at a bad review Book A by Reviewer Y. In the course of the review, Y compared A to a number of high-literary classics, stated that there was no comparison, and proceeded to excoriate X for an "infantile vision of the art of storytelling" (no, I will not reveal anything further on the source of that quotation, and it's not on the Internet so don't bother searching). He continues to trash A through the remainder of the review as not worthy of any reader's time and money. A sells poorly, because Y is an influential reviewer, particularly with libraries (a prime market for A). X and Y have never been friendly. Therefore, after A is remaindered nine months after issue with 80% of the advance unearned, X, being a twenty-first century American, does what most twenty-first century Americans are reduced to doing: he sues. X models his theory on the facts in Suzuki, claiming that comparing his commercial fiction to high-literary classics is equivalent to the extreme maneuvers and rigged testing that Suzuki alleged CU had done to trash the Suzuki Samurai.

The right answer under the Ninth Circuit's opinion in Suzuki is that, presuming that X can come up with "more than a shred" of evidence—perhaps including "expert" opinions by S&M dorks on the "proper" comparisons for A—X v. Y must proceed to trial on the issue of actual malice and product disparagement. That's certainly not going to slow me down, because my acidic reviews (e.g., these relatively mild examples) (N.B. asbestos-lined monitor recommended) are mine. But when they're WFH from a deep-pocket but not particularly sophisticated publisher, such as PW or Booklist, one must question whether there would be pressure to tone down (or perhaps even not print) negative reviews.

The irony is that under my theory of reviewing books, comparison to high-literary classics is the only acceptable standard. To paraphrase Ursula K. Le Guin, one does not compare a violinist's skills to those of the high-school kid next door, but to Itzak Perlman—even if doing bluegrass fiddling (at which Perlman, in a notorious PBS performance in the late 1970s, proved that his classical training made him a better bluegrass fiddler than the well-known performers who impromptu invited him onstage to "jam" with them). One does not find areas for improvement or areas of true expertise by comparison to less than the best, whether of the artist or of the work of art.