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.