The law is self-policing. Riiiiiiight. The really sad thing is that one of the most recent efforts by outsiders to "police" the judiciary is worse than the conduct it was attacking.

Last week, I remarked in passing on problems in the US Court of Appeals for the Sixth Circuit. Today, the court issued an opinion on the controversy in question. In some really amazing spin doctoring, Judicial Watch—a purported public-interest group that purports to be a "watchdog" for the judiciary—continued its hysterical shrieking in a way that, unfortunately, gives away its complete lack of objectivity. The following phrase just leaped out at me:

In the death penalty case (In re Byrd Jr., [sic] 269 F.3d 578 (6th Cir. 2002)), Chief Judge Martin was found to have violated the rules when he issued a ruling without consulting his fellow judges and when he withheld an important pleading from them. The effect of the rules violations was to further delay the execution of a convicted murderer.

(Emphasis added.) Without defending Judge Martin's conduct, I think this little passage demonstrates Judicial Watch's prejudices. Based not just on this instance, but on other involvement by Judicial Watch, I somehow doubt that a judge whose conduct unduly hastened an execution would get the same treatment. I say that living in a state that has set more convicted murderers free as substantively innocent than it has executed since 1991.

Ironically, this kind of nonsense actually undermines efforts to force greater judicial accountability. If the loudest sniping at the judiciary comes from one clearly defined political segment and targets its "natural enemy" only, it will drown out other accusations and undermine their credibility. People will assume that the attack on the judge(s) is politically motivated, not based on objective serious misconduct.

Of course, this also fits into the copyright-term debate. But let's not go there this afternoon.

Continuing from the wee hours of this morning:

Myth 5: Since Publisher X isn't asking for a lot of money up front, I am doing self-publishing. Deep Throat was right: follow the money. The key isn't whether the author must write a large check detailed for printing costs to the publisher/printer before delivery of any of the goods; the key is whether the author is in a capital inflow or capital inflow position at the moment the books come off the press, and who owns those books. A decision matrix would look like this:

Ownership of books as they come off the press:	Author owns	Publisher owns
Guaranteed capital flow on publishing date is away from author	Self publishing	Vanity publishing
… is toward the author	Gift	Commercial publishing

The key issue here is not the author's hopes and dreams for bestsellerdom, but the cold hard figures that go into account books on the date of publication. Leaving aside for the moment the author's contribution of intellectual property—which, in the end, is the whole point of the exercise of publishing, but not really relevant at the moment—if the author has to pay for marketing; for cover design; for a specified number of copies; or for whatever, the net capital flow is away from the author. Similarly, if the author must provide any value other than the intellectual property represented by the manuscript, such as a list of 300 persons who might be willing to buy the book, the net capital flow is away from the author.

Given the rarity of true gifts in the business world, that lower-left box is not something to pay attention to right now. But that top line is, regardless of the ignorant propaganda coming from what I believe is one specific source that was swallowed whole by PC Magazine ("Self-publishing has gained respectability in the past few years (we don't say vanity publishing any more)…" (emphasis added)), the Washington Post (sorry, the article is about to move into the paid archives), the Chicago Tribune (ditto), and the Boston Globe. Those four publications bear a considerable portion of shame for being conned when they should have known better, or at least done some fact-checking. No, not just shame; moral responsibility for people who will be victimized on the basis of the inaccurate information now clothed in their credibility.

Now The Observer has gotten into the whole "become successful through self-publishing" urban legend business. Time for some debunking.

Myth 1: Since prominent authors including Mark Twain and Virginia Woolf engaged in self-publishing, self-publishing is a valid and reasonable means to develop a publishing career. This kind of logic is just as valid as noting that Isaiah Thomas came to organized basketball through Chicago street ball, then asserting that anyone who wants to become a professional basketball player needs to move to Chicago and start playing street ball. A large number of authors assertedly used self-publishing at some point or another. Careful examination of that list, however, shows that almost invariably their circumstances are not comparable to those of an author seeking to break into publishing today. For example, one of the reasons that Virgina Woolf "self-published" was that her work bordered on the then-current definition of obscenity in England, which acted as a significant barrier to publication. If American Psycho can find a publisher today—and by no means do I compare Ellis's drivel to Woolf's prose—that particular barrier must have fallen. Similarly, most of the so-called "self-publishing success stories" come from one of three circumstances that the starry-eyed unpublished author probably does not fit.

   First, many of the commonly cited success stories precede the development of the modern publishing system in following World War II, or at least the mid-1920s. Woolf's self-publishing did; so did Twain's; so did seven others on the "common list" of thirty or so.

   Second, most of the other commonly cited success stories are in specialty areas of publishing that are neither relevant to the "average" unpublished manuscript nor comparable to less-specialized publishing mechanics. This includes course- and seminar-adjunct materials, such as In Search of Excellence; "inspirational" works, especially but not exclusively Christian-based and found primarily in Christian bookstores; and "fad" books, including the notorious guide to Beanie Babies and cookbooks.

   Third, the commonly cited success stories are almost all the work of authors with extensive writing experience and publishing credentials that predate successful self-publication, or are compilations of materials drawn from such sources. Chicken Soup for the ____ Soul is an excellent example of the latter, while Twain and Peters are excellent examples of the former.

   The correct inquiry is this one: If the book that an unpublished author wants to self-publish is one that, but for lack of a publishing contract, one might find in a general bookstore, is self-publishing that book statistically more likely to create a publishing career for the author than is writing another book? Although there is no hard data available, the anecdotal data indicates that it is not, and in fact is less so.

Myth 2: Proper marketing alone is enough to create a self-publishing success. If this was correct, it would apply equally to commercial publishing. The hard data in my possession indicates a correlation coefficient of less than 0.20 between marketing expenditures and sales decile in the twelve months following publication. Since most successful self-published books are specialty works, comparable data is difficult to obtain. The dearth of successful self-published authors who later reject offers of commercial publishing contracts is instructive.

Myth 3: Print-on-demand (POD) is a new publishing model that breaks the barriers established by the commercial publishing industry. <SARCASM> Yeah, and the Saturday Night Special broke the barriers established by the handgun manufacturing industry. </SARCASM> POD is a printing technology, not a business model. No matter how the books are printed, one must still get them into the hands of potential buyers. That means one of two things: getting them into stores, meaning that one must use the existing distribution system (fully returnable books with long discounts), or direct sales, meaning who knows what. POD can be a useful printing choice for books that the author knows will not have a large audience, such as family histories. With rare exceptions, however, making money had better not be the primary objective.

   POD can certainly adjust price points, and can make it more possible for authors with little upfront cash to begin self-publishing. One can hardly complain excessively about the quality of POD books compared to the poor quality of too many commercially published books; however, POD books can be spotted easily by anyone familiar with printing technology or even just an observant reader. At least for the moment, POD has a questionable reputation. That reputation does not matter for low-print-run specialty books; but, since doing that print run is not for economic reasons, the attack on commercial publishing implied by the most strident advocates of POD is essentially meaningless.

Myth 4: My book is too dangerous for commercial publishing, so self-publishing is the only alternative. Except for books advocating illegal activity (as Paladin Press found out to its chagrin), this really does not hold up much anymore. Further, this statement is usually made by people who either have never submitted their books to commercial publishers or who have only ever written one book, and cannot stand criticism of their only child. Although a distressingly high proportion of the books published are garbage or worse, that proportion pales next to the slush pile. I have been a slush reader in several areas of publishing; better than 90% of the unsolicited submissions to a commercial publisher can be rejected as inappropriate or worse without reading past the first page, and at least 75% of the remainder rightly will not make it past the first three chapters. Too often, "unpublishable crap" gets translated into "too dangerous" in the mind of the inexperienced author. There very well may be a handful of counterexamples out there; statistically, they prove nothing.

On the theory that those who do not know history are truly doomed to repeat it, and that those who delude themselves about history won't be even that successful, I took a spin around a few of the major sources of book reviews lately. Was I ever sorry I did. I had hoped to see some of what books on history (and related serious nonfictional themse) are broadly available to a broad audience, but instead was treated to the usual nonsense that, with very few exceptions, allows virtually no dissent from previously established narrative forms and viewpoints.

   This is not really the fault of the book reviewers, or the book review publications. The Washington Post's Sunday Book World supplement—which in many sense has overtaken the Sunday New York Times Book Review in quality and breadth of coverage, if not in reputation—made a valiant effort this week to cover books on history. Well-considered reviews of Eric Hobsbawm's memoir of a leftist historian's experience, Donald Kelley's dense graduate-level disposition on the history of historiography, and the astoundingly ignorant Ann Coulter's treatment of American "liberals" as wearers of scarlet letters still fail to do two things that every book review should do.

   The first of these failures is most apparent in the last of the reviews. Given that Sturgeon was an optimist—more than 90% of everything is crap—a book review needs to tell the reader why he or she should care, particularly when the review is a negative one or of an unfamiliar area. It is easily understandable why Coulter's book, and perhaps to an even greater extent Bruce's book, are objectively "bad"; if nothing else, they are intellectually dishonest. The review makes this much clear, even if it never uses that term. The shortcoming of the review is in its failure to place its subjects in any context other than a fluffy comparison to a book from the "opposite" political wing, in a manner in which one cannot readily determine whether the reviewer even approves of that other book. This is not something that can be left to "showing," as the whole point of reviewing books should be to give readers guidance on how to spend their limited time and money, presumably from someone whose knowledge of the subject matter is greater than that of the average bear.

   The second failure is perhaps more subtle, and in the long run somewhat more dangerous. It is not really the reviewers' fault, though; it is the fault of the editors of the book review. Both Hobsbawm's and Kelley's books were reviewed by people clearly predisposed to like the books on the basis of more than passing familiarity with their works, their authors, or both. In serious nonfiction, it is becoming increasingly difficult to get more than three or four degress of separation away from any moderately prominent author when assigning reviews. The difficulty is that the editor did not insist upon disclosure of the relationship, or at least did not print it. In these particular instances, I do not believe that it harmed the reviews. Other times, such as the notorious incident in which another publication allowed a prominent romance novelist to review (or, rather, trash) romance novels penned by one of her competitors under several different names without disclosing that the two were presently involved in a lawsuit alleging plagiarism, it does.

   Together, these point out a major problem with book reviewing today. Unless one really can tell a book by its cover, even the most uncritical (and therefore least helpful) reviewer is going to come across a significant proportion of books that he or she cannot recommend positively. This issue of Book World is unusual in that it contains a significantly negative review. The "good news only here" source of book reviews is not worth much. If there is one thing that publishing does not need any more of, it is sycophancy.

I just took a very, very discouraging trip around various news sources today. Why I am discouraged, I do not know; I expected this.

   Is it just my imagination, or did Monty Python's Life of Brian accurately depict the situation of the pathetic left in this country? The right (Romans) is pretty unified, and although it certainly has its internal battles, those battles tend to be pretty much of personal aggrandizement. The left, however, forgets that its common enemy is the Romans, not the Judean People's Front. Or was that People's Front of Judea? In any event, the internecine squabbels on this side of the aisle both prevent disputation of ideas, instead of organizations, and force opinions toward the center. If this also sounds a great deal like the Spanish Civil War, and the complete inability of the socialists and left to unify against the fascists, I am afraid that is all too accurate.

   The reason that windbags like, say, Rush Limbaugh can get away with the illogic and sloppy research that is their trademark is that there is nobody of comparable views attacking them; the only attacks come from this side, which in turn generates counterattacks by all of Rush's (or whoever's) fellow travellers. Sadly, much the same can be said for the arts in general; artists and distributors are so busy attacking each other that nobody attacks artistic illiteracy or cooptation by commodities on the one hand and pretentious pseudoart on the other. Robert Altman was right.

A Single Parent's Lament

Teenagers. Can't live with 'em. Can't sell 'em cheap, 'cuz there ain't no takers.

Real authors are probably going to laugh at this—at least a little bit. A new edition of the excessively venerated Chicago Manual of Style is going to be out shortly, and a preliminary look indicates that it is even less satisfactory for lawyers than its predecessor. What this says about the relationship between "lawyers" and "writers" is not very complimentary, but probably all too accurate.

The real problem with CMS is that it originates at the University of Chicago. The University of Chicago, in a display of unbounded arrogance all too similar to Apple's decision to make the format of 3½" floppy disks in early versions of the Macintosh both physically and virtually incompatible with existing format standards, absolutely refuses to have anything to do with the Blue Book. Instead, the University of Chicago published its own Maroon Book—which, so far as I have been able to determine, has been adopted by nobody else. Although I do not defend the Blue Book as necessarily right in all (or even many) particulars, it is nonetheless the standard. I could do just as well with getting rid of the stupid volume-title-page-incomprehensible abbreviations format that the Blue Book uses for citations, and the typographical conventions that make a law review article appear almost as a book would in the rest of publishing. However, I cannot accept the particular alternatives offered by the Maroon Book and that were adopted in the 14th Edition of the CMS, such as not requiring an unambiguous designation of what court issued a decision or a citation of the codified (and thus official) form of a legislative act. The Blue Book's system is clunky and illogical; the Maroon Book/CMS system leaves out critical information.

At least CMS will begin paying some attention to electronic citation, as The Chronicle of Higher Education remarks. On the other hand, the blanket condemnation of footnotes is ridiculous, IMNSHO. I've done quite a bit of editing of academic texts. In those fields in which citation is important—such as, for example, legal writing, either academically or in practice—citation-only footnoting is much less intrusive than a string citation to four or five cases or other sources (particularly if it includes parallel citations) in the middle of a sentence, or even in the middle of a paragraph. It is all too easy to lose the train of thought in the middle of that string citation. Compare these two versions of the same paragraph:

In order to determine whether the Iowa guest statute should apply to this case, we must first examine its purposes as articulated by the Iowa courts…. These purposes are: "to cut down litigation arising from the commendable unselfish practice of sharing with others transportation in one's vehicle and protect the Good Samaritan from claims based on negligence by those invited to ride as a courtesy," Rainsbarger v. Shepherd, 254 Iowa 486, 492, 118 N.W.2d 41, 41, 1 A.L.R.3d 1074 (1962); to prevent ingratitude by guests, Knutson v. Lurie, 217 Iowa 192, 195, 251 N.W. 147, 149 (1933); to prevent suits by hitchhikers, id.; [and] "to prevent collusion suits by friends and relatives resulting in excessively high insurance rates," Hardwick v. Bublitz, 253 Iowa 49, 54, 111 N.W.2d 309, 312 (1961).

---

In order to determine whether the Iowa guest statute should apply to this case, we must first examine its purposes as articulated by the Iowa courts…. These purposes are: "to cut down litigation arising from the commendable unselfish practice of sharing with others transportation in one's vehicle and protect the Good Samaritan from claims based on negligence by those invited to ride as a courtesy,"¹ to prevent ingratitude by guests and to prevent suits by hitchhikers,² [and] "to prevent collusion suits by friends and relatives resulting in excessively high insurance rates."³

1. Rainsbarger v. Shepherd, 254 Iowa 486, 492, 118 N.W.2d 41, 41, 1 A.L.R.3d 1074 (1962).
2. Knutson v. Lurie, 217 Iowa 192, 195, 251 N.W. 147, 149 (1933).
3. Hardwick v. Bublitz, 253 Iowa 49, 54, 111 N.W.2d 309, 312 (1961)

Pfau v. Trent Aluminum Co., 55 N.J. 511, 263 A.2d 129 (1970). Leaving aside the inept writing, the second example is far clearer, both as to what it means and as to the sources relied upon for that meaning. The CMS invocation against footnotes, however, forces the first version (which is the version taken from the actual decision).

As authors, you should now begin to understand why lawyers seem so anal retentive about their (almost always bad) writing. Just wait until we try to tell you exactly how many spaces belong after a period!

I am not entirely certain what the various parties in the active controversies over appointment of certain candidates for the various United States Courts of Appeals expect to gain. Although I am pretty far left, I do not believe that the judiciary needs to be moved in any particular direction. Those who do misunderstand the nature of the common law.

   In the strictest sense, judges do make law. Translating poorly written or ambiguous statutes and constitutional clauses into the real world is, in any intellectually honest world, "making law." Frankly, the state of the law benefits from sharp confrontation between appellate judges. Say what you will about the reversal rate of the Ninth Circuit: Supreme Court opinions in cases that came from the Ninth Circuit are generally better written and clearer in their holdings than those coming from less diverse circuits such as the Fourth and Fifth. Leaving aside whether I think, in my arrogance (nothing not-so-humble about it), the Supreme Court gets things "right" when it reverses more "liberal" opinions coming out of the Ninth Circuit, the clarity of its opinions—even when it is affirming the Ninth—benefits from the controversy and give-and-take on that Court of Appeals.

   What distinguishes the Ninth Circuit from other relatively diverse circuits, such as the Sixth, is that personal animosity among the judges in that least-collegial (if only due to sheer numbers) of circuits is rather muted, and seldom reaches the public eye. Judges Reinhardt and Kosinski could hardly be farther apart politically, and each feels free to criticize the other's opinions; but there has been no apparent nonsense such as that in the Sixth Circuit, which at the moment is badly broken due to internal warfare among the judges stemming from the handling of the Gratz and Grutter cases (the two University of Michigan affirmative action cases).

   With that in mind, what to do about the actual nominations? As a litigator, and particularly one who spends a lot of time dealing directly or indirectly with appellate issues, I would much rather have a smart, intellectually honest judge whose politics do not match mine very well than I would a judge whose mind is politically closed—even if her politics and mine match. The kind of work I do requires a much longer view than that of many litigators. I don't often handle simple commercial matters, or simple application-of-bad-law-to-bad-facts matters related to ERISA. Thus, I am concerned not just with winning in the trial court, but in getting either a defensible opinion if I won or an attackable opinion if I did not. I then want a clear opinion from the appellate court, and preferably a well-reasoned one. Ironically, it is a lot easier to overturn a well-reasoned opinion through the legislative process than it is a poorly reasoned one—at least in my experience, which while not vast is considerable.

   Thus, even though I do not agree with Mr. Estrada's particular positions, I have no problem with allowing him to be confirmed as a federal judge. However, because Mr. Pryor's past raises grave doubt as to his ability to clearly express opinions, to be intellectually honest on the bench, and to work with colleagues with whom he disagrees, I would not at this time vote to confirm him, or even to move his nomination to the Senate floor. That the latter has happened is an excellent demonstration that I am not a Senator.

One of my cases is discussed today on the front page of the Wall Street Journal (subscription required).

Jumping back, one last time, to the copyright-term discussion—

I'm afraid that some others who have commented in different places have completely missed the point of the whole discussion. One of the critical mistakes that many people who wish to debate copyright make is the conflation of idea protection with expression protection. Copyright is about protecting expression, contrary to the underlying assumptions made by, for example, Mr. Vermillion. Throughout his response, which makes some interesting abstract arguments, he continues to assert that copyright protection and idea protection are somehow coterminous. (I will ignore his comments on economics, as they proceed from an incorrect reading of what was actually at issue.)

This actually points out a major area of abuse of copyrights that, from what I have seen, seriously distorts the entire debate. In theory, anyway, the debate should have been settled by Feist: original expression, not facts or ideas, is protected by copyright as a constitutional matter. This is why it is wrong, for example, to claim copyright in a human genome sequence; there is no original expression in it, only undirected operation of natural forces. The whole issue of "database protection" is all too frequently thrown into the same debate as "copyright protection." They are neither congruent nor directly related. The facts in a database are not protectable under copyright law. However, the specific expression of those facts in a book that draws upon that database (whether authorized to do so by some "license agreement" or not) is so protectable, so long as that expression is more than a mere mechanical recitation of the facts.

Admittedly, misuse of copyright law in protection of factual compilations is a significant problem for academics (among others), and no doubt colors perceptions. West v. Mead, which allowed West Publications to restrict access to case law on the theory that its pagination created a copyright interest, is an excellent example. When such nonsense is attempted in more inherently expressive forms, such as fiction, successful assertion of a copyright cause of action is quite rare. Consider, for example, the controversy over The Wind Done Gone (which, because it was tried in the Eleventh Circuit—a circuit that does little copyright work—raised a significant risk of an inconsistent result). Whether one thinks the decision was right or wrong, the courts made clear that they believed the attempt to prevent publication of a purported parody of Gone With the Wind—which certainly deserves parody—was wrongful and well outside the scope of the Copyright Act. That the Second and Ninth Circuits cannot agree on what aspects of a "character" are protectable under the Copyright Act points to a problem in administration, not necessarily with the scope of the Act.

In any event, fiction is different from factual compilations and theoretical interpretations of facts. Although it is not always true for particularly finely argued theories, and may be quite difficult to do, recasting a theory as a different expression does not ordinarily change the substance of the theory. However, recasting a character description, or a character's speeches, or any other fictional element does change the substance of the work of fiction. <SARCASM> Perhaps information wants to be free. Even if it does, novelists do not express information, and want to be paid. </SARCASM>

One of the major problems in litigation today concerns the United States Court of Appeals for the Ninth Circuit. Many people (lawyers, academics, politicians—ok, they're not strictly people, citizens) think that the Circuit is too large and has too many judges. Its size also has an unfortunate effect on copyright law, too. The Ninth Circuit covers Alaska, Hawaii, Washington, Oregon, Idaho, Montana, Nevada, California, Arizona, and all US territories and protectorates in the Pacific (like Guam). That is a lot of territory. That is a lot of people. Therefore, that is a lot of lawsuits.

   There have been a lot of proposals to split the Ninth Circuit, often driven by ideology more than by common sense. There is a sense that the Ninth Circuit is too "liberal" for many conservatives, and particularly for fundamentalist Christians. (That these groups will not accept the possibility that, say, the Fourth Circuit is too "conservative" for people like me bears some careful consideration, but for another time.) For example, some have proposed splitting Nevada and the five northern states off, leaving California, Arizona, and Hawaii as the Ninth Circuit and the remainder in the new Twelfth Circuit. However, California by itself is so big that this would not provide much relief. Splitting California so that part falls in one circuit and part in another is the only purely geographical method that could equalize workloads, but that would make California the only state sitting in multiple appellate circuits.

   Actually, that last concern is not strictly true, and points a way toward the beginnings of a solution. Every state is part of two federal Circuit Courts of Appeals: the territorial circuit and the Federal Circuit. The crucial distinction is that the Federal Circuit is not an "option"; instead, all appeals concerning certain subject matters go to the Federal Circuit, and it hears no other kinds of cases. Many of these appeals arise in DC, such as appeals arising from certain federal personnel actions. More to the point here, all appeals that require interpretation of the Patent Act or a patent go to the Federal Circuit, whether they were tried in Chicago, Los Angeles, Boston, or wherever.

   Since patents and copyrights have the same Constitutional source, this leads to a possibility that I have not seen considered elsewhere: Send copyright matters to the Federal Circuit, too. Copyright suits are exclusively under federal jurisdiction (28 U.S.C. § 1338), as are patent suits (ditto). Harmonization of copyright law would be a very good thing. At present, there are basically three tiers of appellate circuits in copyright law, based on the frequency of reported copyright decisions in those circuits. The top tier is the Second and Ninth Circuits. This is not surprising; the Second Circuit includes the center of the print publishing industry (New York), and the Ninth Circuit includes the center of film and television (Los Angeles). The second tier is the Sixth and Seventh Circuits. Again, this is not surprising; the music publishing center in Nashville (Sixth Circuit) and financial and information publishing activity in Chicago (Seventh Circuit) explains this well. The third tier is everyone else. (By "tier" I mean only frequency, not "rightness" or "quality" of decisions.)

   Unfortunately, there are some rather distressing inconsistencies among the circuits that are unlikely to be resolved by the Supreme Court. Most particularly, the Second and Ninth Circuits have greatly disparate law concerning copyright protection of fictional characters and settings. If a single circuit was responsible for all federal lawsuits arising under Article I, § 8, cl. 8 (the Copyright and Patent Clause), that would at least make the law consistent. The success of the Federal Circuit in resolving many disturbing contradictions in patent law bodes well for such a result. One could even throw trademark suits in, too, but that may be too much, as trademark is also a state-law theory that can be heard in state courts.

   Although this by itself would not solve the workload problems in the Ninth Circuit, it would take some of the thorniest problems away and begin to make a dent in the process that just might allow a geographical split to work. Of course, other types of lawsuits could also be assigned to the Federal Circuit; they should, however, probably be limited to lawsuits arising from the narrower of Congress's enumerated powers in Article I, § 8. In any event, this may provide some food for thought.

As an attorney, one unwritten professional responsibility that I have is to attempt to educate both attorneys who do not practice in my area of law and nonattorneys about the general structure and requirements relevant to that area of law. Contrary to the nonsensical propositions put forth by the various bar associations, lawyers are specialists—and far more so than physicians, despite the absence of a specialty-board certification (aside from patent practice before the PTO). For example, when is the last time that you heard an individual physician proclaim that he/she is ENT certified, true, but only works on problems from the left side of the throat?

This specialization can lead to both advantages and disadvantages. The obvious ones are the advantage of deeper and more detailed knowledge of an area under discussion and inexperience in other areas of law. In turn, this leads to improper analogization—a logical flaw that is shared pretty equally among practicing lawyers, academics concerned with legal issues (who may or may not be lawyers), and nonlawyers with vested interests in issues. More on this anon.

The other unwritten professional responsibility that I referred to previously concerns the propriety of argumentation. Basically, attorneys in most states are required to advocate for their clients; in some states, they are required to do so "zealously." The difficulty arises in general discussions on law that are not directly related to representing any particular client. All too often, lawyers—particularly those of us who start with a more theoretical bent, and I am not excluding myself—try to turn this grey area into a black-and-white test. It is not, and cannot be.

The exchange between myself and Professor Solum illustrates some of these difficulties—rather poorly, as the argument has been neither vituperous nor highly technical, which I consider fortunate—and how they are barriers to both communication and to advancing the state of the law. In a way, I had a hidden agenda in engaging in this exchange: I wanted to expose two basic logical flaws that infect all legal analysis, whether by practicing attorneys or otherwise.

A. The common law is, by its very nature, inductive. That is, it draws from one, or at most a few, specific instances to create a proposition of purported general nature. This can be a perfect valid method of logic. Unfortunately, it also leads to sequences of reasoning like this one:

A1. African American schoolchildren in Topeka, Kansas were segregated
A2. The segregated schooling was inferior
A3. No counterexamples of truly equal or superior segregated schooling were presented
A4. Therefore, segregated schooling violates equal protection
A5. Therefore, consideration of race in allocating educational resources violates equal protection
A6. Therefore, affirmative action plans, because they consider race in allocating educational resources, violate equal protection

The logic problem here arises between steps A4 and A5, and again between steps A5 and A6. The hidden proposition is this one:

A4.1. All means of creating segregated schooling that we have now agreed is improper necessarily involve an improper consideration of race

This proposition may well be true; however, it is true as a value judgment, not as a logical consequence. Cf., e.g., W. Brian Arthur, "Inductive Reasoning and Bounded Rationality".

B. Because all law (except the illusive "natural law") has at least a considerable inductive component to it, it is particularly vulnerable to the fallacy of the false dilemma, which arises from assuming that a bipolar policy statement contains the exclusive definition of all possible alternatives. One common—but neither compelled nor universal—statement of the false dilemma in this particular context is something like this:

B1. Some, or even many, copyright holders/controllers use copyright to inhibit free expression and the production of new works in the arts
B2. These Abusers constantly press for the extension of both temporal and other limitations on their ability to control direct and derivative use of their works
B3. Therefore, the scope of temporal and other control of copyright holders/controllers must be radically reduced

The difficulty is the jump between steps B2 and B3. Again, it may be true as a value judgment—I deny it, but those are my values—but it is not compelled by logic. That jump fails to account for alternative means of negating the circumstances stated in step B1 by looking at the behavior of only the abusive parties. As an alternative, I proposed greatly limiting membership in the class of those who abuse copyrights, by (for example) reforming the definition of "work for hire" in a way that allows the actual creator(s) to terminate the transfer at a later date, without altering the other aspects of copyright. Whether or not this is the best possible solution, it demonstrates that there is an alternative to chopping copyright terms back to "five or ten years" (or whatever) for everyone. Since there is an unconsidered alternative to the exclusive-or reasoning presented, that reasoning is not compelled by logic. (That this conclusion itself depends upon an exclusive-or lemma—something is either logically compelled or it is not—has not escaped my notice.)

In summary, not all legal reasoning—and particularly not all legal reasoning on "intellectual property"—has compelling logical antecedants. For some propositions, there very well may be compelling policy antecedants. However, by definition policy antecedants do not have universal application, while logical antecedants do. Recognizing that difference is an important first step toward helping authors understand other aspects of intellectual property, particularly those related to "fair use" (or "fair dealing"), "plagiarism," "attribution," and many other fact-specific issues.