Still more publishing and entertainment industry weirdness. And it's not even a "business day" today.

If anyone needs any proof that John Updike is viewed by too many people as the lion of American letters—most of whom seem not to have read about half of his works, nor for that matter much of his "competition"—consider this fluff piece from today's Guardian. Presuming that he was accurately and completely quoted, it's the names he did not mention that demonstrate just how far off Updike is. Whether one likes his work or not, one cannot discuss the rise of "ethnic" UK novelists in the last quarter-century without at least acknowledging Salman Rushdie's influence. Similarly, one cannot discuss the influence of UK novelists in general in the last quarter-century without acknowledging Martin Amis, David Lodge, and Kazuo Ishiguro. So, is the problem that Updike screwed up in substance, or that he didn't make himself sufficiently clear for a reporter to report accurately? Given the reporter's reputation, I tend toward the former.

If anybody needs any proof that the IP folks at Fox/Newscorp are a couple of cans short of a sixpack, consider the controversy over Miss Cast Away. First we had Dastar, which showed that the administrative recordkeeping at Fox hasn't been good for a long time—and that the legal decisionmaking is no better, because that case was a slam dunk. Then we had Al Franken/Bill O'Reilly—another egregious misinterpretation of trademark rights and law. Now this—in which there are both recent examples of using the common term "Cast Away" in a "dilutive" manner (ignoring temporal sequence for this purpose) and yet another attempt to appropriate a preexisting colloquial term as an inviolable mark for a specific product. One would expect Bob Denver (Gilligan) to object, too. Wait a minute… he has a part in the film… so maybe if Tom Hanks had done a thirty-second cameo this wouldn't have happened?

This whole argument demonstrates why the "free marketing" justification for music and video piracy simultaneously is invalid and demonstrates the idiocy of the entertainment industry. In this instance, it's pretty clear that Fox has decided that a parody of its several-years-old film would not help DVD and rebroadcasting sales. That should be enough, from a strictly piracy perspective, when one considers that there isn't a tenable "creativity" element to the pirates' position. However, it also reflects considerable ignorance of the marketplace, at least outside of Los Angeles County and New York County. If I'm reading the census map correctly, those two locations comprise about five percent of the potential market—and that's generously including the entire SMSAs. Bluntly, the kinds of people who are not actually in the entertainment industry who would refuse to purchase (or rent) Cast Away on the basis of Miss Cast Away are those who would not purchase (or rent) Cast Away because it's a "chick flick." There's almost no overlap in the potentially influenced audience—not to mention that if you mention "cast away" in Peoria, or St. Louis, or Cincinnati, people will think you're referring to Gilligan's Island. Yes, the one with the boat.

On the other hand, since this involves Fox/Newscorp, I suppose I shouldn't be surprised at the childish petulance it displays.

It's been rather a strange weekend in the publishing business. Starting from t'other side of the pond…

• Malise Ruthven's book on the interplay between "fundamentalism" and "civilization" may actually begin to constructively deconstruct this destructive relationship. Although it is probably too much to equate religious fundamentalism with obstinate textualism—not intelligent and informed formalism, but the "static language" crowd—it may also shed some light on the psychology behind some of the battles over legal interpretation.
• Dept. of Self-Fulfilling Prophecies:

  It is the story of his life in the hippy culture of the US West Coast in the 1960s and 70s, and of his relationship with Virginia Good, a volatile child of that era. It is direct, funny and touching. Getting published should have been straightforward, surely. But the problem is how to market this book. Yes, he is a gifted writer, but that is a hard quality to sell. There is also the matter of precedent. In the time I've been writing about the book trade, I've come across quite a few memoirists such as Jones, dismayed that publishers have failed to appreciate their work; none of them, before him, has had any talent. It's difficult to prove yourself the exception.

  Nicholas Clee, "The Bookseller," Guardian (29 May 2004).

• And, conversely, the Dept. of Equal and Opposite Reactions:

  Probably, it was Margaret Thatcher who saved my bacon. The Thatcher boom changed everything. Ironically, it was the most right-wing Conservative government in memory that liberated a torrent of creativity. I found myself, by accident, in the right place at the right time. Another irony: it was a philistine decade that saw the restoration of the book. The figures tell the story. In 1980 there were 48,158 new titles published in the UK. By 2000 this had risen to a staggering 100,000. Today the figure stands at a record-breaking 119,000: in the world of books, we are all Thatcher's children.

  Robert McCrum, "The Best Book Club," Guardian (30 May 2004). Now that's one "ancestor" I can do without…

Much of a Muchness

A few random thoughts (I know that's not much different from normal!):

• Congratulations to Crystal Palace on their return to the Premier League. In real football. None of this stop-every-ten-seconds-of-play nonsense, or sissy protective gear!
• I must disagree with a lot of the muttering going around about Martha Stewart's "inappropriate" conviction for making false official statements. Professor Ribstein's refreshingly honest and clear assessment, I am afraid, misses the point, although much less so than the article to which he linked. The usual objection that one hears is that she shouldn't have been punished for making a false statement on something for which she was not criminally charged. Unfortunately, this ignores the question of prosecutorial discretion: the prosecution chose not to charge her directly with the conduct that she was convicted of lying about. Instead, that conduct was handled under the much-lower civil standard of proof by the SEC. As much as anything else, this probably reflects the prosecution's evaluation of the persuasiveness at trial of the evidence it eventually developed. The point of false official statement prohibitions—the one that I lived/ate/breathed is Article 107, UCMJ—is to enable valid investigations, including precisely this use of prosecutorial discretion. Although I don't completely agree with Mr. Turow's analysis, I think his conclusion is nonetheless sound—and particularly so for that particular defendant, a former stockbroker and then-member of the NYSE Board of Directors.
• Professor Froomkin reasonably wonders why we are changing the top commander in Iraq after a year. On the one hand, there's military tradition. In the Army (and to a lesser extent the Marines and Navy, and a lesser extent still the Air Force), flag officer command tours are ordinarily limited to two years, and seldom exceed eighteen months. Part of this is just the operation of the modern personnel system: Flag officers are retirement eligible, so there is a constant demand for them as more-senior officers retire. There is also a sound practical reason: high-level commanders tend to become ineffective in a given unit when that unit is in combat conditions for more than 300 days or so. Put another way, both the unit and the commander need fresh perspectives, or there will be more fresh blood. This particular phenomenon can be spotted in the West since the end of the First Thirty Years' War in 1648. So, although it does raise some eyebrows, there are rational "general principles" justifications for the change.

Professor Ribstein muses on what makes a good law review article. He proposes the following characteristics:

1. A "clear and at least fairly original central idea."
2. "The idea has to make sense."
3. "The article should seriously consider counter-arguments."
4. "The article should demonstrate mastery of its subject."
5. "The article should actually have been tested in the marketplace of ideas prior to publication" (emphasis in original).

This is an interesting and helpful list. I would add a couple of items and deemphasize (but not eliminate) one of them.

5. [substitute] The article must reflect serious feedback from other scholars. I am not a big fan of "workshop it first" for truly original material; it encourages a rush toward the middle. (Perhaps I see this more than do most scholars because I work with so many non-lawyer authors.) Instead, a selective release to other scholars in the field seems more useful to me. For some kinds of articles, that might include SSRN; for many, however—particularly for interdisciplinary works, which seem to have unduly low "download to abstract view" ratios on SSRN—it will not. I have also found that SSRN is much more partisanly polarized than one would expect of a good cross-section of legal scholars. Thus, I think SSRN a tool, but not a substitute for careful, selected one-on-one colloquys with other scholars. I also think that this may be counterproductive when dealing with "new developments," such as an analysis of the Patriot Act in the first few months after its passage at warp speed.
6. [new] The article must be written in clear, concise English that does not rely upon jargon. Elegance is probably too much to expect in legal scholarly writing, primarily because elegant writing usually means eschewing excessive references (see next item). Good communication, however, is not too much to expect, if all too uncommon. Too many articles, particularly both those using a law-and-economics analysis and those covering intellectual property and/or evidence, rely upon jargon to so great an extent that only those who naturally agree with the premises and conclusions speak the same language. This severely inhibits the ability of such an article to add to scholarly (let alone practical) knowledge.
7. [new] The article must not substitute citation for analysis. This is not an argument against footnotes; it is an argument against the paranoid need to prove that somebody has said something before on a given subject, however trivial. In fact, I wish that "standard" legal writing would get rid of string cites to anything except controlling authority; but that's not going to happen any time soon! One of the reasons that the academic core looks down on legal scholarship is that only arguments that one can demonstrate—exhaustively—have previously been made by somebody else seem to get much notice, while truly original analysis that does not have lots of citation to other authority gets short shrift. Consider the following passage:

   One factor which has been considered by the Ninth Circuit in determining what level of official should bind the government is the burden which would be required of the citizen seeking the official interpretation.⁵⁸ In United States v. Clegg,⁵⁹ the defendant, an American citizen teaching school in Pakistan, relying upon the encouragement and solicitation of a lieutenant colonel of the United States Army and the United States Army's director of military intelligence in Pakistan, transported arms to the Afghan rebels.⁶⁰ The lieutenant colonel was second in command in Pakistan at the time.⁶¹ The approved transportation of arms was in reality a violation of federal law.⁶² However, the court held that the defendant's reasonable good faith reliance on the statements of these United States officials would be a valid defense to the federal charge of exporting firearms.⁶³ The Clegg court emphasized two facts in support of its holding: first, the defendant was operating far from the territory of the United States in a place not obviously covered by American law, and second, the officials were of very high rank.⁶⁴

   [name, title, and journal withheld to protect the guilty] That's seven footnotes to a four-page passage (actually two-and-a-half pages after allowing for the introduction and worthless headnotes) in one case. A single footnote would have sufficed. Instead, though, the padding of footnotes makes it appear at first glance that this article reflects considerable research… and hides the fact that at least one of the officials—the lieutenant colonel who was not actually in command—is as a matter of law not of "high rank." Further, those footnotes don't do what they should. For example, note 62 should state what federal law was "in reality" being violated, presuming that one rejects a two-or-three-line footnote covering the whole paragraph as insufficiently precise. And all of that is before considering the flabby prose; this paragraph should be one-third shorter.

8. [new] The article must advance the state of the law, not just a peripheral argument or personal feud. To put it another way, the subject of the article must matter to persons other than a few scholars arguing about an abstruse technicality. Technical articles can be extremely useful, especially when they draw a wide range of scholarship together to enable a coherent discussion of a specialized field. Technical articles in which scholars send each other open nastygrams based as much on personal dislike as on the merits of the underlying argument are not.
9. [new] The article must not express or imply personal disdain for litigants involved in a (potentially) live controversy. This was a serious problem with many securities-law submissions that I saw during my tenure as a law-review editor: About a third of them essentially stated that no shareholder suit or objection could ever be justified unless it came from a majority shareholder whose will had been thwarted by the board or the minority, and another third assumed such. As a theoretical position, this is "wrong," but not per se unacceptable. The problem was with the rhetoric, which was almost always slanted to make all shareholders appear to be greenmailing opportunists seeking a quick buck to compensate for their poor judgment or bad luck. Unfortunately, this was not just limited to articles by young associates at New York City corporate-defense firms trying to get their feet in the door. Also unfortunately, this is not just limited to articles that get rejected.
10. [new] The article must not pretend that disagreement with it is impossible or that it is definitive. Lawyers have egos; scholars have egos; put the two together and… But that is not an excuse for Kingsfield-like arrogance that admits of no opposition. That is not scholarship; that is polemic; and polemic has its place, but not in scholarly journals. The law doesn't "say" anything. The law implies or indicates something to people with a common background and understanding. Trying to cloak oneself in a purportedly mandated objective view is intellectually dishonest. I have found this problem distressingly common in intellectual property scholarship, particularly at the margins and overlaps of areas within intellectual property, and in civil procedure scholarship.

Don't worry—I'm still here. (I'll ignore the chorus of groans in the background.) I'll just be terse/sparse for a few more days with some family and end-of-school-year stuff. In any event, the real excitement won't start until next week, when the Supreme Court starts releasing the end-of-term torrent and I go to the movies. Hmm. Maybe I can write off at least my own ticket as research…

You Win Some, You Lose Some

The winner: public safety and NFL players themselves, if somewhat paternalistically. Maurice Clarett lost his antitrust challenge to the NFL's refusal to allow him to enter the draft.

Clarett argues that the NFL clubs are horizontal competitors for the labor of professional football players and thus may not agree that a player will be hired only after three full football seasons have elapsed following that player's high school graduation. That characterization, however, neglects that the labor market for NFL players is organized around a collective bargaining relationship that is provided for and promoted by federal labor law, and that the NFL clubs, as a multi-employer bargaining unit, can act jointly in setting the terms and conditions of players' employment and the rules of the sport without risking antitrust liability. For those reasons, the NFL argues that federal labor law favoring and governing the collective bargaining process precludes the application of the antitrust laws to its eligibility rules. We agree.

Clarett v. National Football League, No. 04-0943 (2d Cir. May 24, 2004), slip op. at 11 (PDF). The bargaining agreement functions to prohibit persons under 21, with a few exceptions (and those probably only a matter of months), from signing NFL contracts. There are good physiological reasons for waiting beyond 18 in such a high-contact sport—particularly since it is only a sport. Now, if they'll just admit that college football is really minor-league professional football and stop the pretense at "amateurism"…

Some losers: The officer corps. The Geneva Convention. Civilization. Phil Carter comments as follows on the revelation that a company commander and a high-ranking NCO at Abu Gh'raib are set to testify that the prisoner abuse was consistent with orders from higher headquarters:

[T]hese leaders' testimony will corroborate the "we were just following orders" defense of the soldiers, by showing the level of command involvement at Abu Ghraib. If there was enough pressure from the top to make the CO and 1SG go along, then surely you can't expect some privates and sergeants to resist orders like these, right? (At least, that's the theory the defense will offer.) My prediction is that this testimony will be key to the defense, and that it may ultimately exculpate the defendants or result in a reduced sentence.

"Did top officers know about Abu Ghraib?" (23 May 04). Without excusing anyone for issuing such orders—assuming arguendo that they were in fact issued and known to the accused soldiers, which although not yet established by evidence looks increasingly likely—the "Nurmeburg Defense" should not do more than mitigate the sentence, even for private soldiers. Nobody can reasonably argue that this was a battlefield situation requiring a snap judgment. As Lt Calley—another individual brought into daylight by Seymour Hersh—found to his detriment, the law requires one to disobey a patently unlawful order. The only question relevant to the court is (or should be) just how clear those orders were. If the orders were unlawful and the soldiers went beyond the scope of the orders, then the orders should provide exactly no benefit at all.

What I find most frightening about this whole controversy is that it was far from difficult to anticipate. In the early 1990s, I was a "guest Assistant Professor of Aerospace Science" for the seniors at the University of Illinois. I used a "problem method" for studying ethics and military law problems in class. One problem that I developed—a problem that resulted in a lot of class discussion spilling outside the hour and onto the exam—was an Air Force-context My Lai incident in Iraq. What really frightens me is that one of the hypotheticals that I had ready—in 1993, mind you—was a prisoner-abuse situation. The spirited discussion never allowed me to get to that particular scenario. But there are (depending on how long they stayed in) forty or so USAF officers who have at least had to think through this situation before.

We have met the enemy. And he is us.

Dept. of Unintended Irony

At the local library, I recently came across several ironic entries in the publishing hall of fame. Or shame. Or infamy. But, in any event, I suspect that the irony is unintentional.

• The title of this one says it all: The Complete Idiot's Guide to Past Life Regression.
• A book that shall remain nameless on the process of becoming a professional magazine-article writer. So far, so good; but the author's name is not well-known, even in his purported area of specialization. That warning sign, though, is far less than the imprint. You guessed it: this book was published by a vanity press.
• The execreble Ollie North's book on current affairs is entitled War Stories. He's execreble not because of his politics—or at least not because of his politics alone—but because he damned well should have been court-martialled for violations of Article 107 (False Official Statement) and Article 133 (Conduct Unbecoming an Officer), among others, for his role in lying to Congress during Iran-Contra. Whether one approves of the underlying policies or not, commissioned officers don't lie to Congress. They may evade the question; they may refuse to answer the question; they don't lie. And wrapping everything up in "war stories" today…

Marketing Over Substance. Again.

It appears that Amazon has not learned a damned thing from objections to Search Inside the Book last fall. Its "new" (well, it's a couple of months old, but it's at a new address) SITB publisher sign-up form has more problems than I can shake a stick at. But not more problems than I could name in a complaint complying with Fed. R. Civ. P. 8—particularly since Amazon is on legal notice of the scope of the problems inherent in SITB.

The "disclaimer"—and, in reality, that is all this is—at the top of the form is particularly obnoxious.

To get started in the Search Inside the Book program, you must be the exclusive rights holder (including copyright and marketing/promotion rights) of the titles you wish to submit to our Search Inside the Book program.

Aside from being insufficient on its face, note that it still makes the Tasini assumption: that the entire book is the only meaningful rights/copyright unit. This invalid assumption was specifically pointed out to Amazon, in writing, several times last fall. This is not even an arguable position, particularly in Washington (which falls inside the Ninth Circuit, and therefore squarely inside of Napster).

Second, and perhaps more interestingly, note that there is no provision for a signature on the form. Under the Copyright Act, transferring any right resting on the Act may be done only with a signed writing. Well, OK, it is an electronic form, so perhaps an electronic signature might be good enough. Might be. But this form doesn't even do that—not under New York, California, or Illinois law; not under UCITA; and not under Washington State law. I promise that I won't mention the words "legal" and either "malpractice" or "ethics" immediately next to each other: I'll put conjunctions between them.

The real problem here is that the program still reflects the "neato marketing strategy" focus inherent in the whole program. SITB is one of those "we'll do this because we can, and to hell with the rights of anyone else connected to it" marketing strategies to popular in the entertainment industry. One might draw comparisons between SITB and the "justifications" offered for Napster and KaZaa (and all of the other systems that might—wink wink nudge nudge know what I mean—enable copyright piracy), with the exception that Amazon's system at least bears some arguable relationship to an actual sales effort. Arguable only, though; that is only the general context.

Third, and perhaps most interestingly, the actual "participation agreement" requires agreeing that Amazon may "reproduce the entirety of each Book". In other words, this implicitly denies participation in the program to any multi-rights-holder book; but this is not noted on the enrollment form, nor are various terms necessary to understand what this clause really means defined anywhere in the "participation agreement." Compare this language to the language at the top of the enrollment form (quoted above) and you'll see exactly what I'm talking about.

That's enough. Let's just say that this program could not be put to death under the Supreme Court's guidelines for execution of the intellectually incapable. And, sadly, that it reflects more thought and originality than most publishing/entertainment industry marketing efforts.

Professor Ribstein, in response to my recent Frankenstein moment, notes that

So the African-American owners of this SBA-certified minority-owned contractor shouldn't lose their civil rights because they chose to do business in the corporate form. They might be required to sue as a corporation, as in this case, because that's a convenient way to handle litigation, but that doesn't determine their individual rights.

The first sentence finds no disagreement here. As Professor Ribstein notes, the business form that will appear on the contract if a business arrangement is agreed to is not relevant to the civil rights of the individuals who might assert discrimination claims. So far, so good. I cannot agree with the second sentence, though; corporations, at least economically, are not supposed to be "a convenient way to handle litigation." That makes the corporations into persons for purposes of discrimination claims. The corporate context is merely that as to individual claims: the factual circumstances that describe the alleged discrimination. If the group of plaintiffs in question is large, then a class action is an equally "convenient" method of "handling litigation" that does not result in granting rights to an unnatural person that begin to awaken the monster.

This may sound very much like a resort to hypertechnical rules of procedure. In a sense, it is; but it is a hypertechnical attempt to limit the effect of other hypertechnical rules. Consider, for example, the limited parnership, which has "less" personhood than does a corporation. (This is beginning to get truly surreal…) At the extreme, consider the unincorporated association of independent business entities that act as a group. Would, perhaps, the Corleone "crime family" have a proper discrimination claim (not necessarily one it could win, mind you, but merely one over which there would be procedural jurisdiction) on the basis of national origin and ethnicity? Again, I think that the class action provides a vastly superior means of dealing with the situation, particularly since the reality is that many of the natural-person victims are best treated as class members, unless each of them had significant and individual participation in the subject transaction. But, in that instance, they also each have an appropriate individual cause of action—which would make the corporate actor a particularly inconvenient focus for litigation management.

So, in the end, I remain troubled by the anthropomorphism of treating a corporation as if it has human aspects not related to its economic purpose. It is one thing entirely to allow an economic entity to obtain redress—or be the source of redress—for economic harms. It is another thing to bootstrap that economic existence into noneconomic contexts—and, as I noted earlier, one that has been explored much more thoroughly in speculative fiction than in legal theory.

Abridged Edition

In the US, many of us—even many of us who should know better—often fondly think of the UK as another bastion of democracy and free speech. In publishing industry terms, the free speech Over There is an abridged edition. That the media marketplace is creating the same danger over here, in the name of profit protection, is nearly as serious.

Mr. Unger said he was not angry at his erstwhile British publisher, but rather unnerved by his crash course in British libel law. "It makes you love the First Amendment all the more," he said. "It's rather shocking what we take for granted as journalists in the United States, and what you cannot say in England."

If nothing else, this illustrates the point that the burden of proof is strongly outcome-directing. In publishing-oriented cases (copyright, trademark related to publishing products, publishing contracts, and defamation by media) in the last decade of so, for those cases that have actually been filed it appears that the party with the burden of proof loses over 70% of the time. At least, for those jurisdictions that I have been able to study; and, although that doesn't include some significant jurisdictions, such as the Tennessee state courts, the difference between the other state jurisdictions is not statistically significant. The sampling technique is not rigorous enough to quantify the effect for purposes of making predictions; it is, however, enough to draw a general conclusion: that the burden of proof gives a better than two-to-one advantage to the party in the defensive posture.

In today's Guardian, Philip James has some fascinating and disturbing (not to mention entirely expected for those of us who were inside the Beltway during the reign of George II) observations on George III's courtiers' imperious and condescending attitude:

Russert got the chance to ask his last question of Powell, on how he felt now about all the bogus intelligence he was given to present as fact to the UN in the month before the war. But a much larger point had already been made: with the possible exception of Colin Powell, this administration believes itself to be beyond criticism. The Soviet-style manner in which Republican operative Miller, who used to work for the majority leader, Tom "the Hammer" DeLay, tried to muzzle an interviewer once the questioning no longer pleased her betrayed an arrogance that goes to the core of this White House….

Four years on, the seeds of this administration's hubris are springing up all over. A month after the world pulled back the veil on the seamy details of the Abu Ghraib prisoner abuse scandal, the Bush spin machine would like people to believe that the outrageous actions of the prison guards were isolated incidents by a few bad apples. But documents that this White House hoped would never see the light of day clearly show that it created the atmosphere where such abuses could take place. The legal opinion of White House counsel Alberto Gonzales — that the US should ignore the Geneva Convention in its global "war on terror" — is evidence that something close to an Übermensch complex has travelled down from the top. Despite protestations that this memo was meant to apply only to Taliban and al–Qaida suspects at Guantánamo — itself a questionable position — it is clear that US commanders in the Iraqi theatre used it to justify applying torture there as an interrogation technique.

"The Ugly Face of Power" (fake paragraphing removed for clarity).

These observations are interesting and valid, as far as they go. I do not think they delve deeply enough into the mindset of totalitarians—and make no mistake, that crack about "Soviet-style manner" is far more accurate than the public actually sees—who dominate the Republican leadership and activists (and form a too-large, if in my experience slightly lower, proportion of the Democratic leadership and activists). The problem is not with policy, or even with ideology; it is with the pursuit, consolidation, and exercise of raw power. I realize that sounds rather strange coming from someone with my background, particularly my pre-law background; but this is precisely why I "lost confidence in the senior uniformed and civilian leadership of the military" and tendered my resignation. I signed on to protect the Constitution against all enemies, foreign and domestic—not just against the foreign ones.

We have substituted an even greater degree of intellectually and ethical dishonesty for the naked financial dishonesty and "dirty tricks" visible during the Watergate scandal. This is perhaps the best argument one can make against the "two-party system"; I am still having trouble coming up with an alternative that does not in the end have the same flaws, though, so maybe this kind of nonmonetary corruption is part of the price we pay for our form of government. One thing is for sure: This nonsense makes me a lot more cynical about those who bitch, whine, and moan about the "arrogant, imperial use of naked power by judicial activists." At least judicial activists have to give one a written opinion to demonstrate their arrogance… presuming, that is, that "judicial activism" means anything other than "judges who don't get the right result in cases in which I have a personal interest."

The Slammer

Sometimes white-collar criminals get what they deserve. Such as, for example, Zachary Hill, a notorious phisherman. Without having seen the sentencing report or indictment, I am only inferring this: But it appears that Judge Gilmore may have given him within a couple of months of the maximum sentence under the evil United States Sentencing Guidelines. The most likely guideline range would be 42-47 months, and she gave Hill 46 months.

Of course, this is just one phisherman; and, like catching gillnetters, a couple of successes aren't going to be much of a deterrent to such a low-cost, low-risk activity.

It's Aliiiiiiiiive!

The Ninth Circuit gave us a true Frankenstein moment on Monday. In Thinket Ink (PDF), a panel held that

if a corporation either suffers discrimination harm cognizable under § 1981, or has acquired an imputed racial identity, it is sufficiently within the statutory zone of interest to have prudential standing to bring an action under § 1981.

Id., slip op. at 6343 (emphasis added).

Why is this a Frankenstein moment? Because by implication it means that the corporation, an unnatural person, has taken on yet more aspects from natural (real) persons: race, religion, ethnicity, and gender. This leads to some very, very interesting (and difficult) questions of constitutional and statutory interpretation; and of the relationship among law, policy, and reality; and of speculative fiction.

To begin with, I'm going to object that stare decisis—obedience to precedent—is not always a good thing, particularly when the precedent doesn't say what it has been assumed to say. Corporations in this country are treated as "persons" for Fourteenth Amendment purposes on the basis of remarks made by the Reporter of Decisions in the syllabus of a couple of related nineteenth-century Supreme Court cases. Santa Clara County Rwy. is not, in any event, a model of clear prose or good logic; the key, though, is that almost without question since then corporations have been treated as "persons" that have due process and equal protection rights. In logical terms, then, if the corporation can be said to have a characteristic that is protected by civil rights statutes based upon the Fourteenth Amendment—such as § 1981—it is not unreasonable to extend those civil rights statutes to corporations in both directions. That is, the corporations have both the obligation to respect those civil rights in natural persons, and have the right to have those civil rights respected as to themselves.

I'm sure that the Perfesser, in particular, will have something much more profound to say about this than do I. I am troubled, though, by the obvious disjuncture between the theory that a corporation acts/has function/has existence only through the actions of its officers—one of the shared tenets of virtually all competing theories of corporate law—and the reification of the corporation as an alter ego of its officers in the sense of sharing its officers' "protected" or "suspect" classifications. It seems to me that one cannot have it both ways: Pierce the veil for purposes of granting rights, and deny it for purposes of enforcing them. At least, one cannot have it both ways absent statutory or constitutional authorization for the distinction.

The difficulty with this, of course, is that such authorization seems wanting. One can, I suppose, "broadly read" the Constitutional language to include unnatural persons; that's the whole point of Santa Clara's dictum. Whether that meaning was a plausible interpretation at the time of the Fourteenth Amendment is open to some dispute; however, it is not open to dispute for the Constitutional Convention. I may have missed something, but I've found nothing in the records of the convention indicating that corporate "personhood" was even contemplated; and there are plenty of linguistic clues in the Constitution as adopted indicating otherwise. Similarly, § 1981 could broadly be read to allow a corporation to assume the classifications of its owners; but it would be much better if the statute explicitly did so.

All of which comes back to the question of "prudential standing." I think the conclusion—that, if corporations do indeed have the characteristics of a suspect/protected class, they should be allowed to assert antidiscrimination causes of action related to those characteristics—is pretty sound policy and logic. What I question is the premise: that (to use the specifics of this case) an African-American-owned close-hold corporation can also be itself an "African-American unnatural person." It seems to me that this requires an osmosis of personal characteristics that is not consistent with the concept of limited liability and the distinction between corporate and personal assets. Perhaps the "right" approach is to on the one hand, allow a corporation to choose such recognition, but conversely weaken its corporate veil as a price for asserting that recognition.

What this really points out, perhaps more than anything else—and of particular relevance in the publishing and entertainment industries—is that the formalism distinguishing shareholders from officers is perhaps thinner and less defensible than "standard" corporate theory might indicate. For example, Judge Thomas rightly notes that corporations have long been held capable of forming criminal intent. Thinket Ink, slip op. at 6350 n.2. This is all well and good; but it implies, too, that there is an inherent conspiracy among corporate officers, corporate shareholders (if only by willful blindness) and the corporation "itself" in such circumstances. It is extraordinarily rare for a corporation to be held criminally liable without any action (even in another proceeding) being taken against the natural persons who directed/authorized the criminal activity. IMNSHO, it is too common whenever it does happen; but that is beside the point.

In a theoretical sense, it seems to me that Thinket Ink has some interesting implications for the debate between the "director primacy" and "shareholder primacy" theories of corporate governance, but also leaves a number of questions unanswered. Consider, for example, a conglomerate controlled by African-Americans, but with a mostly non-African-American workforce (I'm thinking of Beatrice); and consider, too, the converse. Consider a corporation in which ownership and directorship are of different § 1981 classes. How should such a corporation be treated? Or is this a fact-specific inquiry? And, if so, what is the standard for evaluating those facts? Are we stuck with considering only whether a given corporation qualifies for the "minority contractor" rules of the relevant governmental context (and they do vary from state to state), or is there a "reality inquiry" to be completed, too?

Damn. This all sounds like good material for a business organizations final exam. And just wait until we bring in hybrid business organizations, like LLCs and LLPs, and partnerships! Then there's the whole "dominant personality" theory; for example, is Nightfall, Inc. (the late Isaac Asimov's holding company for his literary assets and estate) a "Jewish" company? And, if so, what does that imply for treatment of its royalty statements? Of course, this probably sounds like material from a Philip K. Dick or William Gibson novel; and it should. I don't even want to think about what this implies about artificial intelligences, and whether a mass of integrated circuits with electrons running around inside it might be Hispanic.

A Funny Thing Happened on the Way to the [Federal] Forum

Ernie the Attorney posted some interesting thoughts from a friend of his on choosing where to file suit. I agree with his friend's conclusion: a plaintiff is often, and perhaps even most of the time, better off in federal rather than state court. Ernie reports that his friend points to (1) the illusory nature of the "big verdict," (2) the probable need to defend that "big verdict" on appeal, and (3) the "quicker" result in federal courts. Ernie's friend was pointing to Jones Act (death/injury of seamen) cases; but I think he's right in more cases and for broader reasons.

Admittedly, most of my actual litigation experience is in federal courts. I am more comfortable there with the rules themselves. It is not just a question of speed, although that is certainly an issue. The discovery and evidence rules in federal court are far more flexible and better-understood than those of just about any state court system, particularly when one is "out of town counsel." To begin with, the defendant in most matters in which I am involved is not in the plaintiff's home forum. That means going to the defendant's forum to get jurisdiction, or getting jurisdiction elsewhere the hard way and then having trouble enforcing discovery requests — especially once a third party is involved. Consider, for example, a suit alleging that Publisher X made certain derivative rights sales, but did not inform the author of or pay the author his/her share for those sales. The purchaser of those rights is a relevant party; what if the purchaser is in a different place?

Perhaps the most important general advantage of the Federal Rules of Civil Procedure, though, is that they go a great deal farther toward levelling the playing field between small firm/solo practitioners and big firms and insurance companies. A local example might be helpful here. In Illinois, each side may move once to change the judge, so long as it's early enough in the matter. Typically, an insurance/defense firm will make such a motion the day before motions to dismiss or answers are due, thereby delaying the matter by at least sixty days. That does not necessarily change the due date for motions; but it does change the way those motions will be considered, almost always to the plaintiff's detriment. In the rare instance in which Goliath is suing David, Goliath will do so with the same timing just to disrupt the defendant's ability to answer/file motions. Further, this creates some rather disturbing "judge-shopping" situations, particularly outside of the Chicago area.

Virtually every state has some nature of similarly arcane, "home-team-favoring" procedural rules. Perhaps the most egregious of these are the "local counsel" requirements. Although the text of the rules may be similar in state and federal courts, the federal courts tend to be much more open to pro hac vice (for one matter only) admissions, especially at the appellate stage. I have voiced my opposition before to states erecting what amounts to a duty upon the interstate movement of legal services with their moronic "home practice" provisions; and I'm being polite for the sake of civil conversation. In less-polite terms, I might use exceptionally foul language and point to particular instances I have observed in which maintenance of a local monopoly based only on historical accident, and not on either competence of counsel or protection of the parties' right to select counsel, formed the foundation for such barriers. I might even name names. I might even question whether those attorneys who engage in such protectionism are violating the Rules or Code of Professional Conduct, and possibly the Sixth Amendment. But, as a solo practitioner, my voice means nothing to the bar regulatory authorities or voluntary bar associations, so I won't bother. Too much.

In any event, there is a final, and to me compelling, reason for choosing federal court over state court: the quality of the decisionmaking. There are some very fine state-court judges and law clerks in this country; there are some very poor federal-court judges and law clerks in this country. On the average, though, the federal-court judges and their clerks are more sophisticated and better educated than their state-court counterparts. This is almost always to the advantage of David, and not Goliath, because the judges and clerks are that much more likely to question large-firm/insurance defense "conclusions" that appear based more on the (literal) weight of the evidence than upon good reasoning. Further, the reversal rate is somewhat lower; and, even when David loses, that provides some closure for poor David.

Of course, some of this is also influenced by the fact that most of my work has, or at least implicates, federal law, sometimes with exclusive federal jurisdiction (see 28 U.S.C. § 1338). Since federal courts are not bound by state-court interpretations of federal law, but the state courts are bound by federal interpretations of federal law, this is just another layer of uncertainty that I would prefer to evade.

Follow the Money

…into someone else's pocket. That's what recording artists get to do. USAToday's story is almost inexcusably glib, but at least it demonstrates some of the ridiculous accounting practices in the recording industry. For example:

• How many professional athletes get "charged back" for a pro-rate share of the team's marketing expenses? Or, if we're concerned about that team aspect, individuals (like golfers and tennis players)?
• How many professional athletes, artists, etc. get charged by the distributor for practice facilities, or stadium and gallery construction, or above-market rental on completely sunk-cost locker rooms and open-air studios?
• How many recording-industry executives get a portion of their salaries (and expense accounts) docked for their "costumes," their transportation and equipment expenses, or their recreational substances? Or, worse yet, for so-called genius Simon's hairdo?
• How many businesspeople voluntarily reduce their income 15% from their best market, just because their costs used to be higher in that market?

Don't smirk too much, authors. Authors' royalties are just as bad, if not worse—because the charges to you don't get unbundled. Perhaps I'll go over this at some time in the near future… as I'm expecting a confidentiality order to be lifted by the end of the month. I won't name the publisher, because it wouldn't make any difference. Neither will I name the authors.

The Big Picture

Too many pundits—and people who should know better; too damned many pundits know little at all, regardless of their political bigotry (and, with only a handful of exceptions, that's what it takes to be a "pundit" these days: less willingness to take prisoners, or treat them fairly, than the Khmer Rouge)—are concentrating on the "flipper attack" on Kerry, and to a lesser extent Bush. I, for one, would rather have someone in office whose mind can be changed by facts than a doctrinaire anything. I realize that sounds rather strange for someone who rejects both the Republican and Democratic Parties as too conservative; but that's beside the point. Many of the most significant actions and policies established by the presidential party in this century have resulted from a change of mind/heart on a given issue. Lyndon Johnson's move from his 1958 comments to his support of the Civil Rights Act is an obvious example, but there are many others.

One thing that we should all have learned from the WMD controversy is that sound policy does not get made when "advisors" withhold "inconvenient" information from decisionmakers. This is why the Karl Roves of this world—who have that power, but do not have to face Senate confirmation—are so dangerous. Contemporary electoral coverage is myopically restricted to the candidates themselves, with very little examination of the people with whom they surround themselves—and upon whom the burden of 95% of government will fall. In his autobiography My American Journey, Colin Powell tells the story of the "dog-shooting research" that was torpedoed instanteously by an appointed official. Not only is this the kind of matter that would take attention away from the Chief Executive, but the specific response demonstrates the kind of power based upon appearances that these subordinate officials have. The Secretary in question rejected the program because of its context: a nation of pet-owners would not stand for shooting dogs for research upon battlefield wounds, even if the dogs would otherwise be euthanized. The value of the research was not at all the issue.

Unfortunately, there is a major impediment in this country to such evaluations: It is technically a violation of election law to name a "shadow cabinet" as the Opposition has in many parliamentary countries, most obviously in England and Germany. This is a function of our "advice and consent of the Senate" process. For that reason, one can really get an accurate assessment only of an incumbent President seeking reelection. It is certainly possible that the group Kerry would assemble could be less competent and honest than the group assembled by George III; but I think he'd have to try pretty hard. Perhaps this argues for establishing limited terms for certain kinds of offices, such as United States Attorneys, that are in one sense policymaking and in another administrative. I, for one, would love to see USAs given a seven-year term with a possible single reappointment, staggered across the country so that no two adjacent positions would ordinarily be due for reappointment at the same time; and similarly with the US Marshall in each district. That's just one example.

The mid-level party operatives with whom I dealt most of the time when I was in Washington are now becoming the senior people and advisors to the visible officeholders. Perhaps my belief in the Officer's Code made me ill-equipped to evaluate their worth in a political context; perhaps it does still; but it didn't harm my ability to judge their integrity—or, too often, the absence of it. Acton was too optimistic in his assessment. It is not power itself that corrupts; it is the process of obtaining and consolidating it that does.

Class Actions (Again)

Professor Ribstein makes the provocative assertion that the "original" class-action lawyer should be compensated if his/her position as class counsel is later gazumped by another lawyer designated to act as class counsel, at least if the "original" lawyer provided ideas or factual foundation necessary to getting a successful result. This is an interesting proposal, and it has some attraction. There are a couple of potential objections that I think need to be met; as I have not yet had a chance to read the article, it's entirely possible that Professor Ribstein has already answered them.

The first potential problem is that this places an even greater premium on "first to file" than the current system. I have seen too many ill-thought-out class complaints in my time, particularly in non-mass-tort contexts, that were slapped together to get to the courthouse first. Perhaps this can be controlled by having the court set the proportion of compensation to the "original" counsel based on "how close" that initial complaint is to the eventual winning theory of the case. <SARCASM> We really, really need another opportunity for satellite litigation over fees! </SARCASM>

The corollary is where things begin to get really messy. Why should this concept be limited to single class actions, aside from administrative convenience? For example, at this time Ellison v. Robertson remains a live matter. (The statute of limitations has expired for a new action on the operative facts, so this really is a purely hypothetical example.) Shouldn't I get compensation if BigClassActionLawFirm files a "piggyback" class action relying upon the four years of work I've put into this case? Then there's the can of worms opened by "competing" class actions. In my former life as a class action lawyer on consumer finance issues we had to deal with intricate issues of interlocking, overlapping, and contradictory class actions filed both across the country and within the same district. (In Gibson, the Court of Appeals even expressed concern that the actions had not been consolidated by the trial court.)

What this perhaps points out more than anything else is that the means used to pay lawyers in the US seriously distorts litigation. But that is for another time. I don't like to be the critic who bitches that something is broken without offering a workable alternative that does not have similar, or even more significant, flaws.

Who's Afraid of DRM?

Well, I am, for one. Although I do not support the specific legislation now being considered to allow individual consumers to make personal copies of digital media as a matter of right, I support the concept. (My objections are technical and based upon problems with multiple copyright owners, which are—as usual—completely outside the field of vision of both sides in the argument.)

The real problem that the controversy discloses is that DRM offers a purported—but illusory—opportunity for the vendors to charge an unwarranted premium for their products. In that sense, it is very similar to the outlawed tying arrangements that drove copier prices from the 1960s through the early 1980s. Historically, "piracy" of goods has worked only when the premium between the absolute value of the goods and the vendor's price for the goods was large enough in relation to perceived value added by the vendor to make the inconvenience and risks of piracy worthwhile to the end user. Apparel provides an excellent example. Compare, for example, a men's mesh-woven shirt from Lands' End with one from a discount chain and another from [a major designer]. The Lands' End shirt is not at a huge premium to one of comparable weight from the discount chain—$25 to $15—but is substantially cheaper than the designer shirt ($40). The Lands' End shirt is of higher quality than either the discount chain's or the designer's: higher-grade thread, smoother seams, more-durable buttons, less shrinkage and color loss in washing. If one goes to a slightly off-note bazaar, though, one finds counterfeit designer shirts, but not counterfeit Lands' End shirts. (I'm sure there are exceptions, but bear with me.) The designer premium is high enough that end users are willing to price-shop for what they believe is the same thing.

The key issue, then, is price points. Let's pretend for the moment that none of the accounting nonsense and supposed "marketing cost" issues prevalent in recorded music and movies exist; that we are instead setting the initial market price based on just our actual costs, both in production and in rights. How much might a CD cost? How much might a single-DVD movie cost? I have my own ideas of both: about 35% of the "list price" now current. Others may argue about the exact price, but there is little place to argue that "list price" is a reasonable reflection of actual costs. The difference is in those "costs" and "profit points" that end users will treat as a "premium". If the end users do not perceive the difference as adding adequate value to overcome the inconvenience, annoyances, and possible liability of piracy and pirate copies, they won't support large-scale piracy. At this time, end users perceive virtually no added value; the widespread (and entirely justified) cynicism about entertainment-industry accounting is only the tip of the iceberg.

The solution to the DRM quandry is to lower prices to the point at which piracy is no longer "profitable enough" to support a market of end users. DRM is inherently breakable, particularly since with very few exceptions it is subject to a known-plaintext attack. The [insert favorite negative description of intelligence here, plural] who approve this kind of effort are actually just using a monopoly/oligopoly position in an attempt to maintain that monopoly/oligopoly. The real argument is over how much of those attempts is legitimately within the authorized monopoly provided by copyright, and how much is not. Until that argument is resolved, we simply will not have a long-term workable solution.

The Supremes

Not just the guys in Washington; judges in general. The Perfesser and Professor Solum have had an interesting, long-running semi-argument/discussion that basically boils down to "the judiciary is out of control because it has grabbed too much power." It is a much more subtle argument than that; but in the end, both want to somehow "transfer" interpretive power to something other than our current judiciary.

I do not agree, with either all of the premises or the proposed solution. To start with, the problem is not that the judiciary per se has become excessively powerful; it is that distortive nongovernmental actors—principally the insurance industry that pays well over 60% of the legal fees paid out to civil litigation counsel, but there are other guilty parties, too—have coopted the courts' agendas. As a general rule, insurance companies are precedent-averse, so they make incorrect decisions on what (and how vigorously) to litigate; at least, the decisions are incorrect from a scholarly/abstract point of view. This is the "invisible tort crisis": almost entirely on the defendant's side of the v.

Then there's the "Churchill problem." Our judicial system is not perfect. But criticizing it in detail while presenting only broad, euphoric outlines of an alternative is not valid logic; it is akin to, but not intellectually dishonest like, the "if evolutionary theory is imperfect, there must have been a Christian creation" arguments used by Inscrutable Design advocates. (One of whom is a law professor and bloody well should know better; but the questionable ethics of his particular approach shall be considered at another time.) The difficulty with the alternatives that have been proposed in this conversation—the "parliamentary solution" and the "formalist solution"—is that everywhere they've been tried, the abuses have been equal to or worse than those in our present judicial system. On the one hand, we have the Birmingham Seven, which reflects not just a single case but an institutional failure; the Official Secrets Act, and the "controversy" over Spycatcher; the list goes on. Then, too, there's the UK's move toward a highest court more similar in structure and function to ours than to the "parliamentary alternative," which itself should act as a very bright caution signal.

The major problem with formalism, particularly in constitutional interpretation, is that it denies the constancy of change. Technological change frequently overwhelms ossified language; consider the Intellectual Property Clause and the absence of authorization for an Air Force or intelligence service. Social change can, too; consider the development of the Exclusionary Rule over the years, both as driven by technology (wiretapping) and independent of it. I need not even rely upon the inchoate right to be left alone from law reviews; Weeks does not rely upon that right. The rise of unnatural persons (corporations, etc.) as actual litigants provides another example. Finally, and perhaps most importantly, linguistic drift can change the understanding of words themselves. Unnatural persons are a good example of this; Santa Clara County and changes in what people understood a business organization to be is a chicken-and-egg problem. All we need to know, however, is that change did occur, whether by fiat or by accretion, quickly or slowly. The most grievous failure of formalism as a binding method of interpretation, though, is the "unconsidered case." For example, the formal text of the Constitution does not compel (although it does support) the hierarchy Constitution, then treaty, then federal law if within federal powers, then state law. The "unconsidered case" here is the interaction between federal and/or state law and treaties; Martin v. Hunter's Lessee presents an obvious fact pattern that nonetheless is not considered in the Constitution in the formal sense.

Formalism is a valid method of interpretation. It can often provide answers and perspectives sufficient to resolve or prevent disputes. It is not, however, universally applicable, and sometimes creates an objectively indefensible result. One cannot use a single-optic light microscope, however powerful, to solve all problems and reveal all about every possible subject for examination, even within the limited realm of microbiology. Sometimes the problem is one that requires a finer instrument, such as an electron microscope or x-ray crystallography. Sometimes the problem is one that requires a completely different examination, such as DNA matching. The key is to know when to use each method; and to know when one is dealing with a problem outside of the realm of microbiology.

By nature, and after more study of interpretive theory than I should probably admit to in public ("Stop me before I spout literary theory again!"), I have concluded that there is no universal method of interpretation that always gives a valid result when dealing with language—even the speaker's own language, let alone language from 200 years ago. That reasonable individuals can disagree on the "correct" or "best" method of interpretation is a reflexive demonstration of this. Of course, the so-called "intent" school has corresponding problems, whether it is "original intent" or some other species. The intentional fallacy is even more dangerous when dealing with imperative statements (like law) than descriptive statements (like poetry). Just as formalism provides a valuable perspective, so too intent can provide a valuable perspective. One can raise parallel objections to just about any school of interpretation, whether in literature or in legal interpretation.

Reasonable Doubt About Reasoning

The Perfesser raises concerns about the moral consequences of collateral effects of systems of reasoning. At its simplest level, this is the "tool/use" distinction. Despite its potential for smashing fingers, a hammer is not evil. Nor is a saw, despite its potential for cutting off limbs. However, I think this oversimplifies the Perfesser's concern, because he is concerned not with a potential collateral effect, but a necessary one.

Let's consider something else that is closer to the nature of the tool at issue. Something simple, like the development of nuclear physics during the first quarter of the twentieth century. (Actually, it is quite simple; but that's just the chemist in me speaking.) The theoretical basis for nuclear physics has a necessary collateral effect that had overwhelming consequences in the last half-century, and may yet make them worse: nuclear weapons. A system of reasoning that adequately explains the nucleus also provides all of the tools necessary to theoretically specify and develop nuclear weapons. The difficulties of actually making nuclear weapons are engineering issues, not scientific ones; that is, they are questions of application, not of methods of reasoning. Just as with the specter of "supporting Roe v. Wade" raised by the Perfesser, reasonable people can differ on whether nuclear weapons have had a positive effect by constraining open warfare in Europe for the longest stretch in centuries or a negative effect with their terror and actual use. The point, though, is that the method of reasoning does not force the actual development of nuclear weapons; it only makes that collateral effect possible. Perhaps unavoidable, given the context of the human desire to enhance might; but one could choose not to go that route. One can make a similar argument from the germ theory of disease to genetically engineered biological weapons.

Of course, some extremely specialized tools really are inherently of a single moral class; the guillotine comes to mind. Then there are unintended consequences, such as the cotton gin (which was intended to end slavery, but actually expanded it). That is not to say that the kind of scenario the Perfesser imagines could not have an unsavory moral implication—just that the particular one specified does not. Creating an "interpretive tool" would have a moral consequence if, and only if, the feared immoral result was not just a collateral effect, but a foreseeable and perhaps even intentional effect of creating that tool. That the tool the Perfesser describes can be used equally well in demonstrating an internally consistent rationale (or, as the case may be, internally consistent error) for a variety of decisions reinforces this conclusion.

I'm Not Surprised

… by this item. I am not really even picking on the publisher in question, because much larger publishers have been whining about the same problems for years. The median time between a sale and the author receiving income from that sale is over nine months—and frequently that's merely credit against an already-paid advance; it's even longer if the publisher has to cut a check.

There are a few obvious, systemic reasons for this. The power imbalance between a publisher and all but a handful (like four or five) of individual authors; the difference between a collection letter from an author for something that can be jimmied through creative accounting and a collection letter from the landlord for the rent; the general disdain for authors prevalent in the higher reaches of publishers; and, perhaps most interestingly, the Bankruptcy Code, which puts authors and other licensors of intellectual property pretty close to the bottom of the heap when extracting money from a bankrupt debtor. Perhaps the Bankruptcy Code should be revised to give a higher priority, or even a superpriority, to licensors of intellectual property; perhaps not; perhaps it just requires a two-by-four upside the head of management in the publishing industry. Or, perhaps, it's an insoluble problem.

In any event, I'm not surprised. Were I the plaintiff's lawyer, I would also demand that an outside accountant examine not just the books of account, but the source documents and contracts, when determining the amount of royalties due. But that's me. And I'm not the plaintiff's lawyer.

The Not-So-Glorious Ninth

The Perfesser and Professor Solum have been having an interesting discussion on the relationship among judicial review, the Ninth Amendment, the judiciary, and the rule of law. There is certainly something to be said for all of the measured views expressed; I disagree with some of them (like that's a surprise!); but I think the argument misses the main barrier.

Judges, legislators, and executives are people, too.

We are very fond of pointing to the "rule of law" as a superior alternative to the "rule of men" in this country, and indeed in most (but not all) established democracies. Unfortunately, the Whorfian implications of these slogans have overcome the real issues to which those slogans refer. More accurately, we have a choice between personal discretion constrained primarily by impersonal rules (closest to the "rule of law") and personal discretion constrained primarily—and, at the extreme, only—by the discretion of other members of the ruling class (closest to the "rule of man"). The key is not whether "man"—with his/her fallibility, prejudices, ignorance, and self-interests—is "ruling", because there is inherently a human decisionmaker. It is what constrains those decisions. Put another way, we haven't put HAL-9000 in charge, because there isn't a HAL-9000: "rules of law" are not self-executing, self-interpreting, and perfect.

Without looking at the substance, one can infer a great deal about what is intended to bound discretion to act from the structure involved. The two main characteristics that our Constitution imposes structurally on our government are parallelism (the "checks and balances," among other factors) and hierarchical independence. The latter requires some more explanation, and perhaps comparison to the alternatives. In eighteenth-century (and previous) governments as actually implemented, each level of government had the absolute right and ability to overrule and micromanage every aspect of government at "subordinate levels"—and frequently took advantage of that right and ability. The Chancellor of the Exchequer could, and all too often did, overrule tax assessments based upon partisan loyalty; similarly for every other example, and continuing to today. The life-tenure system with limited judicial power—and, despite the Supreme Court's power to declare the law, it is helpless to enforce it or pay for it—removes one branch of the tree from the pressures of the next election. Both the Perfesser and Professor Solum are correct that the branch has, in practice, become too beholden to the last election; but that is merely intellectual dishonesty by the actors, not an institutional failure per se.

The parliamentary alternative, which allows the legislative branch to overrule anything done by any other branch, is not really more "democratic" than the bicameral system, or for that matter the three-legged system we have now (let alone the federalism underlying it). All that does is define who gets to be the referee. Imagine, for a moment, that the upcoming FA Cup Final between Manchester United and Millwall is to be refereed by an individual selected by vote of the fans of each club. Given the difference in fanbase, Man U's choice is foreordained. In turn, that referee is to at least some extent beholden to those interests—and the tie (or close call) goes to the voter base. What this does, in the end, is entrench majorities in power, particularly in the face of the disenfranchised. Let's add the fanbase of, say, Liverpool FC to the FA Cup Final example. If allowing the Liverpool fans to have a vote takes a prior majority vote of the existing electorate, a sufficiently entrenched majority has no interest in doing so. [note 1] Having the FA appoint the referee isn't really that much better in practice, because the FA leadership has a strong big-club bias. Institutionally, though, that is the correct decision.

Turning to the Ninth Amendment question, then, one must ask whether the perceived problems with the judiciary, "judicial activism" (which in theory means exceeding the institutional bounds of discretion, but in practice means exceeding the bounds of the observer's preferences), and judicial confirmation reflect an institutional failure or a human failure. [note 2] Let's take the hypothetical instance in which a judge knowingly and willfully ignores a Ninth Amendment imperative, and decides the opposite way. Or, to satisfy the meticulous, five Supreme Court justices agree explicitly on such a rationale. Are the executive branch and the legislative branch powerless in the face of such a decision? Well, there is the extraordinarily difficult amendment process, perhaps likened to the use of goal-line cameras after the fact to determine whether the ball crossed the line. [note 3] This is a "self-correcting" aspect of the institution that acts as a check on the most extreme examples of "incorrect" judgment. The Sixteenth Amendment is an excellent example of this process.

Consider, then, a closer question, such as offside. The referee's assistant has not much over three seconds at the outside to make the recommendation to the referee that a particular play is offside. The referee has independent authority to accept such a recommendation, reject such a recommendation, or decide without any recommendation at all. What this really boils down to is the question of our trust in the referee, as fans and as players. To say the least, this is often an outcome-determined judgment: Not many teams (or their fans) who win will excoriate the referee personally. They might disagree with particular decisions, or even concede that some important decisions in their favor were incorrect. The personal attacks almost always come from losing teams (and their fans), because on the whole the FA does a pretty good job of ensuring that the best referees handle the most important matches. [note 4] The referee, however, is human; and therefore fallible; and therefore subject to criticism by observers, whether truly neutral or neutral in name only.

The real problem at the root of the disagreement between the Perfesser and Professor Solum is not the Ninth Amendment. It is the strength of stare decisis and the power of precedent. Sometimes, stare decisis becomes excessive, particularly when a result from a no-longer-extant context provides the decisional rule in a noncomparable matter; Lochner, Plessy, and Korematsu/Hirabayashi are perhaps the best examples in Supreme Court jurisprudence. [note 5] Sometimes, not enough attention gets paid to previous results. That the constancy of change implies that the "seasoned precedent" rule is not a good one is beside the point, because the rate of change is different in different matters and contexts. In any event, the key question is this one:

Do the outlier ("difficult") cases so vastly outweigh the majority of cases that they demonstrate an institutional failure?

I think not. Leaving aside the question of "obscurity" for the moment, let's look at the reversal rate of the Ninth Circuit. Many commentators point to a higher-than-the-other-circuits reversal rate as "proof" that somehow the Ninth Circuit is out of touch. What is the correct context, though? Is it the cases that self-select as reviewable because at least one party has the resources to apply for certiorari? I think not. The correct measure is the reversal rate of total decisions, not just those that are "important enough" for review. Leaving aside the "excessive decimal" issue, this reversal rate is not statistically different from six other circuits. Surprisingly, the Federal and Fourth Circuits have the highest reversal rate since 1996.

Keep in mind, too, that typically ten or fewer cases per Term of the Supreme Court can even be considered possible examples of "judicial overreaching". For every Lawrence, there are six or seven Dastars. And, if you didn't understand that comparison, that is precisely the point. The hard cases are always going to provide more reasonable rationales for disagreement; but the courts, unlike the legislature, do not ordinarily have the option of refusing to decide. The parliamentary alternative both violates the concept of "final judgment", because any litigant can go to the legislative branch and ask for a retroactive overruling, and merely shifts the question of which governmental body is/can be coopted by nondemocratic interests to a different one.

In the end, then, the problem that we have is that we can only strive for a more-perfect union, not a perfect one. We're human. We're going to make mistakes. Hopefully, we'll collectively have the wisdom to recognize those errors and find an appropriate method of dealing with them. Expecting perfection from judges—or referees—is not only unrealistic; it is antithetical to the concept of democratic government, which by its very nature recognizes, and even celebrates, dissent. I do not, however, agree with Professor Solum's advocacy of "formalism" as an alternative; it rests on an untenable distinction between "law" and "politics." To only mildly misquote Clauswitz—the implication is there in the last third of On War—law is merely politics continued by other means. This is especially true at the constitutional level, where all of the "real disputes" inherently have a political context; but that is for another time.

Notes

1. This is a deliberately silly example. Using a "more realistic" example would both bring in the substantive justice question, given the reputation of Millwall's fans for less-than-civilized behavior, and obscure the result.
2. Yes, I know, the answer is "both." Bear with me for a moment, though, because the answer will remain the same, for reasons that should be obvious.
3. The irony that the vast majority of the time the camera and the referee's judgment will agree should not be underestimated. However, this is a different question: the comparison of human judgment to an "impersonal" judgment established by humans that bears a reputation for objectivity. In other words, we've reflexively ended up in the human failures v. institutional failures question again, having moved only the goalposts—not the argument.
4. This implies that random assignment of decisionmakers, as is normally done in lower courts, may not be the best idea, and that higher courts should be more "competence directed" in choosing judges for particular panels. The reality is that they are; but that is for another time.
5. While I also think these cases were wrongly decided, I am looking for the moment only at their misuse later to prevent the law from remaining contextually relevant. I am sure that there are some decisions out there with which I agree in substance that have the same problem; but this is my blawg, so I'm not going there.

Litigation as Regulation

I will freely admit that my perspective on "litigation as regulation" is from the left side of the v., almost always on behalf of David against multiple Goliaths—and small firm/solo practitioner against megafirms. Although my litigation record looks pretty vicious, I turn away about 60% of the matters that come to me, and manage to resolve at least half of those I do take either short of litigation or by terminating pending litigation.

The real problem is that litigation is an extremely expensive and long-lead-time method of regulation. Very few trial court decisions function effectively as regulation—at least not by themselves. A result significant enough to provide a motive to behave as if regulated will almost always be appealed at least once. That means time, money, and a crushing emotional burden on the parties, not to mention the opportunity cost of having their attention diverted from better activities.

In a sense, though, litigation-as-regulation is a reaction to the governmental equivalent of a "market failure." Just as what regulation is supposed to do is deal with instances in which private parties in general cannot behave "equitably" in the aggregate—usually from asymmetrical information, grossly unequal bargaining positions, or both—the same forces that cause the market to fail can also coopt regulatory agencies and efforts. Exhibit A: Drilling for oil in Artic preserves. Whether this is a wise policy or not is beside the point; only a moron could legitimately claim that the process has been transparent and fair.

Litigation, at least in the US, must come from a live dispute. It follows, therefore, that it is retrospective in nature, even when announcing a prospective rule (e.g., Miranda). Regulation, however, need not be retrospective; it can instead anticipate needs based upon potentials. Some would argue that markets are also prospective, based on the "discount to present value" theorem. This, however, is a mirage in practice, because markets can discount only that information known to all market participants. The reality is that market "pricing" is selectively retrospective, because the information necessary for all market participants to make rational decisions is not available to all of those participants at the same time. So, then, one might say that the reality of litigation and markets use inductive logic—reasoning from specific past instances to rules of general applicability—while the reality of regulation uses deductive logic—reasoning from general principles to specific prospective instances.

Copyright infringement illuminates these disjunctures. On the one hand, we have the Constitutional premise that "more Art is Good." The regulatory mechanism that has been chosen is a limited monopoly for creators—an interference in the marketplace. Litigation accusing others of violating those regulations, though, seldom leads to clear guidelines that are useful to the actual market participants. It is one thing entirely to say "parody may be fair use, and must be judged under the § 107 factors" (Campbell v. Acuff-Rose Music, Inc.); it is entirely another to look at a particular artistic effort that might be a parody (whether claimed so ab initio or in response to accusations of infringement is irrelevant to this inquiry) and determine whether for purposes of § 107 it is a parody. We have jumped between deductive and inductive reasoning at a dizzying pace—and we haven't even gotten to warranty and indemnity clauses yet…

Last for the moment, UK law has flip-flopped yet again on the balance between press freedom and celebrities' rights of privacy and of publicity. The IPKat has rather elegantly cut to the core issue from the European perspective. Adding in First Amendment considerations, particularly in light of the Carol Burnett case and all of its (extremely expensive to litigate) implications, is probably enough for a law review article or three.

Rather than worry about whether the glass is half-full or half empty, I'd rather worry about the size of the glass. Or, perhaps, whether I'm hydrophobic, possibly because I'm a former "rabid plaintiffs' lawyer." (Of course, sharks can't get rabies, but it's still an interesting thought.)

The real question is what one has as a baseline for efficiency. If the "efficient" result is a dispute-resolution system that both (a) properly internalizes all externalities and (b) costs less—in total, in transaction costs, and in translation costs—than any other reasonable alternative, it's pretty clear that the "objector" system is normal to the curve, for a very simple reason. The reality is that successful class actions are a "last resort" after all less-costly methods have been exhausted; so this is merely fine-tuning an "unacceptably" expensive method of regulation. Then, too, there's the "reporting problem." Outrage at class actions is ordinarily outrage at outlier cases not representative of class actions as a whole—and usually not representative of "regulatory" actions at all, but of post hoc attempts to obtain compensation for harms from events of dubious repeatability. Consider, instead, alternatives like this one. Without disclosing any confidential details, the combined attorney's fees on both sides were roughly three orders of magniture lower than those claimed in the MasterCard/Visa litigation. Gibson, however, has been quietly effective in actually changing some behavior. A well-informed cynic would say that used car dealers just hide their "finance managers'" shenanigans more effectively and in different places now; but the same can be said for any antitrust case. So, on this basis, which result was more "efficient"—and was there a doctrinal distinction between the two?

I argue instead that the actual baseline is the ever-elusive "costless voluntary compliance," not competition among statistically invalid subsets of instances attempting to reach any kind of compliance at all. To put it another way, measure the "invalid" transactional cost result—and that is exactly what class counsel's fees are—against the systemic objective, not against the immediate financial interests of the plaintiff class and defendant(s). The real test, then, is not the result of the particular case, but the systemic balance achieved some time later considering all of the actors. Again, part of the difficulty here is the "large number problem" I alluded to last week. When one looks at a $220 million attorney's fee request, one needs to think for a moment about the context. What is the proper context? Remember that this is a one-time, and not continuing, fee. Given that the profits of the MasterCard and Visa networks between the date the lawsuit was filed and the filing of the fee petition exceeded $600 billion, from a systemic perspective it's almost unmeasurable.

It's one thing to complain about large costs in terms of how those costs relate to Joe Lunchbox's annual salary. It's another entirely to look at them in the context of the subsystem to which those costs relate. Sometimes that glass will be half-full; sometimes half-empty; but the size of the glass seems to be a much more important consideration. Notice that I've carefully avoided questioning the purity of the water, since then we'd be talking about mass torts, which would obscure the point rather successfully. Which, of course, is the real premise of too many advocates of "tort reform": whether or not the cost is properly externalized, since it's in their immediate best interest to do so, the entire system should do so. What? Me cynical about "enlightened self-interest"? Never!

I really didn't know that the Post would agree with my blawg entry yesterday on dissent. It appears, however, that some senior military leaders do. Even if they haven't read it. When I was finally allowed to resign my commission—it took seven tries—the reason I stated was that I had lost confidence in the senior military and civilian leadership of the Department of Defense. I am afraid that I am vindicated in that view, even though it's a different administration, by the fact that the Post considers this front-page news.

They Shoot Authors, Don't They?

Sorry about the gap; I'm blawgging as fast as I can. I spend Thursday on an attorney-discipline matter, and Friday on recovery therefrom. I really, really don't do well the day after spending five hours driving. In any event, I have a few random items to add to the blawgosphere at the moment.

To begin, a short and incomplete (both by choice and by obligation) discussion of the "prisoner mistreatment" issues, both at Gitmo and elsewhere: There are officers involved who have forgotten their oath of commissioning. It doesn't say "I will be loyal to the political preferences of the President, regardless of their legality or the consequences." It says "I will protect and defend the Constitution of the United States against all enemies, foreign and domestic; and obey the orders of the President and the officers appointed over me." (The exact wording and punctuation have changed over the years, but the substance has been the same since World War I.) Note that protecting the Constitution comes first, and obeying orders is an afterthought. Well, not precisely an "afterthought"—but considering that such a natural military imperative is mentioned only after stating the objective of service should give a hint.

The real problem is the military personnel system. Particularly in deployed and field units, objecting to orders as unlawful—even when they clearly are—will absolutely, positively kill one's career, and quite probably result in immediate adverse action. We have done a poor job teaching officers how to dissent without disrupting the chain of command, both from the standpoint of those who feel a need to dissent and from the standpoint of those giving orders who don't allow an adequate opportunity and forum for expressing that dissent. The "right way" to do it is behind closed doors, with officers only. That can be awfully hard to do in the field, but far from impossible, The problem is that the "experience-based" military culture has come to believe that good ideas do not come from below, unless they are coming from a "fast-burning" subordinate on the way to flag rank. The military academies bear a lot of the blame for this; but the personnel bureaucracy bears even more. I've seen too many stupid and/or incompetent senior officers promoted almost solely based upon groupthink.

The bottom line is simple: Military personnel are people too. Obedience to orders cannot be blind; that way lies My Lai, the Tonkin Gulf Resolution, and many even darker chapters in the history of military careerism. The personnel system, however, persists in refusing to acknowledge this. Those who rock the boat are forever damned—and, unlike private industry, there isn't another employer to whom one can go for a "fresh start."

More-interesting material will have to wait for later in the day.

What I said was:

Until the Blue Book is no longer the dominant/required method of citation in the law, with its outdated and anal-retentive system for pinpoint citations, "draft" papers on SSRN are going to remain unciteable.

What I meant was:

"Draft" papers on SSRN will remain unciteable in routine legal writing not targetting academics until the Blue Book, with its outdated and anal-retentive system for pinpoint citations, is no longer the dominant/required method of citation in the practice of law.

Professor Ribstein caught the unclear communication, and gave it a reasonable (but not my intended) gloss.

Following this demonstration of the value of editorial input, we return you to our irregularly scheduled rants.

The Law Review Revue

Professor Ribstein muses this morning on the value of law reviews. My pre-law-school background was in two disparate fields in which everything considered of value is peer reviewed.

I will freely admit that I don't like pure peer-review systems. First of all, they are seldom blind. (That law reviews should also do blind reviews is beside the point.) Second, as Professor Ribstein notes, they are slooooooooooooooooooow, which is particularly worrisome for junior faculty members staring at a tenure deadline. But these are process issues that can be solved. What cannot be easily solved is the extreme unwillingness to extend knowledge reflected in peer reviewing, especially outside of hard-data natural science journals (such as JACS). The bias in peer-reviewed journals is toward filling small gaps in existing theory. This is the very nature of the process, because professors doing the peer reviewing, as a group, don't like revolutions that might impair their own standing. I have had too much personal experience with and observation of the peer review process in the humanities to believe that the kind of intellectual honesty required to deal with revolutionary assertions and give them a fair evaluation exists in more than one in four or so of the kinds of professors who end up doing peer reviews.

There. I've said it. The humanities have become coopted by personal interest (and political agendas). So much for finishing that PhD—it won't do any good now…

In any event, Professor Ribstein also refers to the "marketplace of ideas" offered by student-edited law reviews and SSRN. To my idiosyncratic way of thinking, this is the correct view. However, SSRN is a complement to, and not a substitute for, law reviews. Until the Blue Book is no longer the dominant/required method of citation in the law, with its outdated and anal-retentive system for pinpoint citations, "draft" papers on SSRN are going to remain unciteable. Of more import, SSRN limits itself by its nature to academics. This only reinforces the cultural divide between practicing attorneys—including judges—and academic law, to the benefit of neither.

Too, the student editorial boards represent the most-appropriate target for law reviews: the inquisitive but inexperienced individual with a legal education. Communication is better at this level. A random check of SSRN papers that I've downloaded—ok, it's not a random sample, but bear with me—confirms this. Several "big name" professors have posted papers on SSRN that seem to be filled with interesting thoughts and analysis, but are so poorly written, or fail to explain steps in the analysis—often because the writer "already knows" that stuff and omits it in the name of brevity—that they are almost worthless. This results in a true failure to communicate—and ideas are not worth much if they cannot be understood by others. There are similar problems with some law review articles, true; I recall one on which I worked as a 2L student editor that was so incoherent and self-contradictory that it simply should not have been accepted for publication. However, having to convince a board of student editors that an article should be published at least adds a check to the system.

The irony that law, almost alone among the academic disciplines, rewards original thought less than it does the ability to prove that somebody else already said something has not escaped me. It sure seems to have escaped most legal academics, though, as demonstrated by the articles with more footnote text than running text. On occasion, a "review of the state of the law" article will require such treatment; but the "400 footnote barrier" is not, on balance, a good thing. Sorry, guys, but this is not "research" as scientists understand the term—which sure as hell doesn't help academic lawyers deal with the scientists in university bureaucracies.

So, in the end, I think there is a place for all four varieties of writing to advance the state of the law: the peer-reviewed journal; the student-edited journal; SSRN; and, on occasion, the appellate brief. That the last of these must also conform to a client's best interest limits its audience and its application. Nonetheless, it can be gratifying to have a court quote (or even paraphrase) extensive sections of one's brief on a mixed question of law and policy; and anybody who thinks such opinions escape scholarly notice doesn't know that much about law professors, even if they don't know the source.