12 October 2008

Mistaken Federalism (Part IV of ???)

[continued from 11 October]
My point 3 is where — with all due respect — the Tennessee Court of Appeals's opinion begins to break down into the sorts of meaningless, or in any event insupportable, distinctions that tend to give law a bad name. It is fairly clear, and self-evident to anyone with half a brain, that not every term found in Andre Norton's will has an internal definition. If it did — even if it defined "black" as "the presence of all colors" — this opinion would be entirely unnecessary; one could merely apply the definitions found in the will to all of the terms and be done with it. That's not to say that there would be no dispute, as any reasonably creative lawyer (if that's not an oxymoron) can find plenty of nondefinitional problems with this situation; it's only to say that it wouldn't be this one.

Instead, the real question is what will constitute a satisfactory source for definitions. Here, I am afraid, the Court of Appeals goes badly, badly wrong. This is partly forced upon it by stare decesis — respect for authority of the past. Yes, I know that it's bad Latin, but no worse than my sarcastic postmodern version: stagnans decesis. In this instance, the Tennessee Court of Appeals — an intermediate appellate court — did not believe that it had the authority to do away with the silly distinction between "patent" and "latent" ambiguities in wills. That, in turn, masked the remainder of the problem; the Court bloody well knew that, however it characterized the undoubted ambiguities, it would have to reach outside of the document itself to resolve them.

And here is where stare decesis, and similar legal doctrines, turn around to bit everyone in the ass. At a fundamental level, how do we define an outside source of data? Legal doctrine makes a huge distinction between "authority" and "evidence"; however, that's all based upon a formalistic distinction from purely syllogistic reasoning. A better logic model, such as Toulmin's general model of argument, makes clear that when we're trying to discern the meaning of an ambiguous claim, we're dealing not with a distinction between "evidence" and "authority," but between "warrant" (assumption and method of reasoning) and "data" (everything else). In this conception, both legal/technical definitions of "copyright", "royalties", and "posthumous publications" — the foundation of the ambiguity that is immediately at issue — and use of those terms by both the testator (maker of the will) and in the relevant industry are mere "data" used to support the claim.

That is surely correct... and foreshadows my last point. Much of the "testimony" recounted by the Court of Appeals (and, for that matter, the trial court) is from a law professor who is essentially restating the contents of Nimmer on Copyright. Leaving aside for the moment whether Nimmer really is as authoritative as claimed — it isn't, and particularly not in the area of succession of copyright interests, as anyone who actually read the damned thing and its preface would understand — this demonstrates exactly why the distinction between "evidence" and "authority" is so meaningless in this context. One can characterize that "testimony" as either a summary of authority or expert opinion evidence; the way it is presented to the court does not, or should not, matter — only its actual value as data, in the Toulmin model, for evaluating the claim.3 This is one of the many instances in which legal procedure and labelling is outcome-determinative.

In any event, the Tennessee Court of Appeals eventually had to answer two questions:

  • What is a "posthumous publication"?
  • Are "copyrights" and "royalties" the same thing?

The Court did, ultimately, reach the correct result on these questions. It held that a "posthumous publication" is a work that was not published at all during the lifetime of the author (which, unfortunately, leaves the question of whether an unfinished collaborative work would be "posthumous" after the death of the first author, but before the death of the collaborating author, and makes things even more dicey when considering the messed-up corporate structure in place). It also held that "copyrights" and "royalties" are not the same thing. The final issue, though, is whether the Tennessee Court of Appeals even had the right and power to answer these questions... which I'll get into over the next few days. The short answer is that it did not.

  1. Some "speech and communication" types — such as the ones who created the reference to Toulmin's model embedded above — tend to place expert opinion as part of the warrant. That may be easier to teach, but it distorts Toulmin's own writings, in which he treats what we would otherwise call "expert opinion" on facts as data; only when "expert opinion" goes to the very method of evaluating the data — that is, the warrant — is it part of the warrant in Toulmin's own conception. In this context, expert opinion on what the definition of any of the ambiguous terms is would be data, which is what the testimony in the trial court (and the bulk of the Court of Appeals's opinion) concerned; expert opinion on the grammatical function of the terms, and how those definitions influence evaluation of the entire statement, falls inside the warrant.