An Exam Question

The US military (and Army in particular) have no "clear, overarching policy" to deal with sexual assaults. On the other hand, there is such a policy for dealing with individuals who more than one engage in consensual homosexual activity (under the services' definitions, one need not even go so far as trying to pull a Clinton distinction of "sex"!). Discuss.

Less Than a Third of the Story—and Not Fit to Print

For a really poorly researched article on e-book piracy, try today's NYT. The article doesn't even mention Certain Ongoing Litigation, or author involvement. Of course, this shouldn't surprise one too much, given the NYT's posture in Tasini: the reactions and rights of copyright holders for printed material don't seem to get a lot of respect.

The Perfesser invokes John Yoo's memo asserting roughly that "terrorists have no Geneva Convention rights" in his objection to the "law professor letter" on Abu Ghraib. With due respect to the Perfesser, the law professor have by far the better of the argument, but perhaps not for the reasons one might expect.

It appears that the military legal establishment, which includes experts with years of study of not just the text of the various conventions (don't forget the Hague Convention!) on treatment of prisoners and noncombatants but the military context, was completely excluded from the drafting and decision process. This is not the first time we've seen this in this administration; or, for that matter, in any previous administration since the beginning of the Cold War. If there is one thing that we should all have learned over the nearly four centuries since Gustavus Adolphus established the modern court-martial, it is that military law is meaningless when not in context. Regardless of any abstract attraction of Yoo's position, it is curiously contextless. It reflects only the abstract policy concerns of this administration. (It is also bad rhetoric in that it pays insufficient attention to alternative theories and courses of action, which is not appropriate in a document provided for the purpose of advising political decisionmakers.) It does not make a satisfactory effort to encompass the context of current interpretations of international law, such as the Balkan situation of the 1990s; of the history of US/Persian Gulf/Islamic/Arabic relations; or, most critically, of the history of US armed forces in asymmetric warfare (which is spotty at best).

Functionally, this is nothing more than the old technique of dehumanizing the opponent to justify extreme measures against him or her. Leaving aside the disreputable history of the technique, it is just plain bad strategy when attempting to employ military forces. There are certainly flaws in the "law professor letter;" but at least the policies it implies are not inherently counterproductive. If there is a "suicide pact" in this disgusting mess, it is the Yoo memorandum (or at least the policies it supports). Suicide is something one does to oneself. Failing to use all defenses may be exceptionally dangerous; but it is not suicide.

Update: Phil Carter's comments, although perhaps not so disdaining of the DoJ's position, indicate that I'm not the only officer who later went to law school who questions both the constitutionality and the wisdom of this administration's approach to interrogating alleged terrorists.

It looks like Michael Moore has found a way to release his latest film. Regardless of the merits of the film—I have not seen it, and do not mean to imply any assessment of its merits—Disney was wrong, wrong, wrong to breach its distribution agreement, particularly for the reasons that have been discussed in public: possible jeopardization of tax breaks on unrelated projects in Florida. This recalls NewsCorp's pulling of Christopher Patten's book on Hong Kong and the PRC takeover in 1999, again for fear of jeopardizing other unrelated transactions with the PRC. If anything, this points out that antitrust scrutiny of organizations that have substantial involvement in First Amendment-related activities should be more searching than those that do not.

<SARCASM> Yeah, that's going to happen Real Soon Now. </SARCASM>

The whole "partial birth abortion" controversy sheds considerable light on so-called "judicial activism." In a decision issued today, Judge Phyllis Hamilton noted that "activism" isn't limited just to judges:

Nevertheless, while recognizing the importance of the issue, this court need not articulate the precise degree of deference to be accorded the congressional findings in this case. That is because, even if this court were to assume that the findings are entitled to the most stringent standard of deference advocated by the government and Congress: that of substantial deference, the court concludes for the reasons set forth below, that Congress has not drawn reasonable inferences based on substantial evidence, and its findings are therefore not entitled to substantial deference.

Planned Parenthood v. Ashcroft, No. 03-4872 (N.D. Cal. Jun. 1, 2004), slip op. at 84 (PDF, 527kb). This far from the most damning passage in Judge Hamilton's opinion.

As noted, some of the "findings" made by Congress include legal interpretations of Stenberg and other Supreme Court jurisprudence. There is no dispute that this court reviews issues of constitutional law de novo. Accordingly, Congress' [sic] legal conclusions and its characterization of the Supreme Court's holding in Stenberg, and any additional legal analysis, is not entitled to deference by this court. Nor are any of Congress' [sic] legal conclusions, which may be disguised as factual findings, entitled to deference by this court. However, to the extent that such interpretations provided Congress with a framework for its factual findings, the Court discusses those findings below and notes that many of Congress' [sic] legal interpretations are inaccurate and mischaracterize Supreme Court precedent.

Id., slip op. at 68. It seems, then, that "activism" cuts both ways, if any way at all. One cannot argue that a court's actions in carving out a new right are "activist" when Congress's actions in defying the "judicial power" of the Supreme Court on a constitutional issue are not. At least, not with simultaneously intellectual honesty and a straight face. In other words, "activism" is action not in accordance with one's ideological goals.

Teresa Nielsen-Hayden—a senior editor at Tor—was much too nice to a vanity press today, whether on general grounds or for that particular operation. I wouldn't even give them the benefit of the doubt as being possibly well-meaning but incredibly naïve. But then, I'm a suspicious SOB who actually reads contracts and marketing bullshit for fun and profit. Or, at least, attorney's fees.

This leads to a note on printing costs. At the back end, I have a slightly-out-of-date estimator on the main site. (I'm in the process of updating it now; but that involves getting a total of 750 or so quotes from ten different printers and brokers.) This is intended only to give slightly-high ballpark figures to help people see just what the profit margin is for vanity presses.

But that is the back end only. The front end is much more complex: Just how does one know how many pages a manuscript will occupy? In my copious spare time, perhaps I'll convert my stable, well-tested castoff spreadsheet to JavaScript and put it on the main site. For those scratching their heads, the casting off is the process of making that estimate, including allowances for different page sizes, typefaces, leading, paragraph length, footnotes, illustrations, chapter breaks, callouts, forewords, afterwords, author bios, etc. It can be fairly simple for fiction and other simple, pure-running-text books; for fun, try doing a physiology textbook…

Although it's a bit late—several weeks, in fact—the Chicago Tribune has an interesting article this morning on adhesive arbitration clauses. (Disclosure: I have already argued this one—with the same defendant. And I lost (Easterbrook, J.) on appeal after winning in the district court (Conlon, J.).) This gets back to the old chestnut from first-year contract law: When is a term unconscionable because it relies upon one side's vastly superior knowledge and bargaining position, particularly when it is a term of legal art not otherwise related to the substance of the transaction?

Authors, this does matter to you, even if you're not worried just about whether your purchase of A Certain Brand of Cow-Spotted Personal Computer™ may turn out to be a bad one. More and more publishing contracts are imposing arbitration without willingness to negotiate. Although a publishing contract is supposed to be "negotiated," the publishers who impose an arbitration clause do so with no willingness to negotiate it, except perhaps by allowing the parties to agree on an alternate location.

Leaving aside for the moment whether these clauses are fair—as a rule, they are not; the Tribune article demonstrates four unfair aspects of that particular arbitration clause, although it never comes out and says so—an arbitration clause in a publishing contract includes several provisions of which the author must beware.

• Forum: The clause should specify the arbitration authority and rules. The most even-handed of the major forums available in the publishing context is the American Arbitration Association. Designation of the International Chamber of Commerce, for example, is not acceptable in this context; the ICC does a good job with multimillion-dollar international shipping disputes, but not IMHO with intellectual property or under-$100k disputes.
• Venue: Usually, the clause will designate one particular location—the publisher's hometown—for the arbitration. Particularly for smaller publishers, this clause should allow the parties to agree upon an alternate location. This is important if the publisher moves, goes out of business, is sold to another company, and sometimes just because all of the necessary records and witnesses might be somewhere else. Too, it is important outside of New York, Los Angeles, and Chicago, because the pool of arbitrators qualified to deal with publishing-law disputes outside those areas is vanishingly small—and, contrary to the claims of arbitration advocates, at least some familiarity with typical industry practices really is necessary for an arbitrator to be even-handed.
• Cost: Arbitration is not free. One of the dirty little secrets of arbitration is that it is ordinarily vastly more expensive than a small-claims-court action; in the case described in the Tribune article, for example, the fees the two sides would have had to pay the arbitrator exceeded the value of the computer at issue. At minimum, these fees and costs should be borne equally, with the winner recovering from the loser; this is still unfair, but better than silence, because some arbitration fora require that the party demanding arbitration of a particular dispute Better still, the party that requires arbitration should pay up front for the privilege, especially if there is a cost-and-fee-shifting provision.
• Binding: If one is going to the inconvenience of arbitration—make no mistake, these clauses are not imposed for the author's convenience—one at least should expect the result to hold up. If the magic word "binding" is not in the clause, take it to a lawyer who understands these things. Sometimes other language can substitute for that word; sometimes, however, it's an illusion. Yes, Virginia, there are publishers (and others) who impose egregious one-way arbitration clauses.

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…