But I was most interested to read two [...]]]> Washington & Lee’s revision of its third year into a practice-based curriculum has attracted a considerable amount of attention in the law prof blogs, including a fascinating post from Deven Desai below suggesting that even W&L’s program may not go far enough. Over on one of Brian Leiter’s blogs, Leiter’s post drew several interesting comments, including several from Washington & Lee faculty members and students commenting on the theory and thought process that went into the decision. My wife and I both taught at W&L as visitors last year, and while we weren’t part of this debate, I was very impressed by the school and in particular with how W&L handles its first-year curriculum to address similar concerns.

But I was most interested to read two comments critical of W&L’s effort on Leiter’s blog, the first from an anonymous correspondent of Leiter’s quoted in his post: “If 100% practice is the way to run the third year, isn’t the obvious answer to make a J.D. program a two year affair?” Sam Bagenstos followed up in the comments in a similar vein:

This seems like a low-road strategy to me. Even if we stipulate that the major goal of our pedagogy is to train lawyers … the question is what kind of lawyers are we training our students to be. The best schools have or should have as their goal training people to be outstanding lawyers (and ethical, responsible professionals?) over the course of a career. The new Washington & Lee approach, I hate to say, is more closely directed to training students to be the best first-year associates they can be. I’m quite sure that a student who goes through that program will, to coin a phrase, be “ready on day one” for the kinds of tasks that new lawyers do on day one. But I’m far less certain that a student who goes through that program will be a better lawyer over the course of a career. I doubt that law schools have much of a comparative advantage over practitioners in the kind of on-the-job, practical training that is the focus of the new W&L third year.

I believe both of these comments are profoundly mistaken. I believe it is crucial in legal education to go beyond simply asking students to read cases and instead require students to apply those lessons in practical settings. The understanding of an appellate decision that comes from simply reading and discussing a case is a hollow form of understanding. It is understanding without context, and pedagogical studies have shown that context is critical to forming long-term memories. The student cannot begin to incorporate cases or doctrines into their broader context until the practical significance of the holdings or rules is made clear.

And that only happens when the student actually tries to use the case or rule in an argument, or advise a client what it means, or draft a contractual provision that handles the legal principle at issue, or use it in a negotiation with opposing counsel. A few minutes of dialog in a large lecture class simply cannot achieve that level of understanding. An exam is the first place where many students are asked to apply a rule in a practical-type situation (the client’s tale of woe as issue-spotter), but it is perverse to teach a class through–and only through–the exam.

Nor is it the case, as these commenters suggest, that such lessons are easily duplicated in the initial years of practice. No practicing lawyer has the time to supervise subordinates closely enough, or impart their wisdom in a direct fashion while working through an issue. Lessons in practice come haphazardly and through trial and error. It is key that the students start learning those lessons as soon as possible, and ideally in a structured environment, with detailed and knowledgeable feedback, and in a setting where mistakes are not catastrophic. If that can happen anywhere, it’s law school, not practice.

That is why I’ve always required my students to do some sort of practical exercise for my classes, even the seminars. This semester I’m requiring my Civ Pro students to litigate a hypothetical case. I was inspired to do this by an article I read in the Journal of Legal Education, Lloyd C. Anderson & Charles E. Kirkwood, Teaching Civil Procedure With the Aid of Local Tort Litigation, 37 J. Legal Educ. 215 (1987). I divided the class into groups of three–each its own “law firm,” the idea being to get students used to the idea of collaboration and sharing workloads–and then assigned half the class to represent the plaintiffs and half the defendants, for 15 cases in all (all litigating the same facts). I’ve made minimal concessions to the fact that this is an exercise. So, plaintiffs had to do everything from filling out a civil cover sheet to filing proof of service; defendants had a choice of answering or moving to dismiss (most answered). Oral arguments take place on designated motion days at the beginning of class. The cases will proceed through discovery to either settlement, summary judgement, or to being scheduled for trial (and left unresolved). No discovery tool is off limits, although in retrospect I should have artificially mimicked the financial incentive to minimize discovery in some way.

So far, I think it’s going really well, with a considerable amount of overlap between the cases and the readings we’re doing in class, albeit with some suboptimal adjustments to the reading schedule. The real test, of course, will be whether the students get something out of it, which unfortunately is not necessarily the same question as whether they think they’ve gotten something out of it. (Nevertheless, if any of my students want to offer anonymous but polite feedback in the comments, feel free.)

None of this means that W&L’s path is necessarily the correct one to take, even though I think W&L’s plan is exciting and daring and I applaud them for it. Brian Leiter notes the inconsistency between the kind of professors that one might need to teach such classes, and the kind that lead to prestige in the legal academy, a problem I’ve commented on before. And possibly even more significant than that is the problem of scheduling electives so that students are able to concentrate in the areas that interest them; even if W&L has a schedule mapped out for the first year of the program, how well will that hold up when the excitement of the new program wears off? One possibility, which I don’t know if it was considered, is to reduce the required curriculum of the first year to offset the impact of required courses in the third year.

But a school does not have to overhaul the curriculum in order to achieve the benefits of practical exercises. Indeed, I think such exercises can be incorporated into individual classes, as I have done. Even something as simple as a weekly hypo begins to get the students to think beyond the particular cases in the textbook. I think that’s a critical, not superfluous, part of legal education.

So I’m therefore a little puzzled by the way the D.C. v. Heller briefs downplay what the Framers would have regarded as the paradigmatic case of the confiscation of arms by the government: the Battles of Lexington and Concord, the events that started the Revolutionary War. It’s a bit as if briefs on a 1950s statute protecting ports from surprise [...]]]> Mike O’Shea has thoughts on tomorrow’s argument in D.C. v. Heller below; here are my own. Despite my recent posts on original understanding, I recognize that it’s often the most important interpretive method actually used by courts in constitutional cases; and even non-originalists like me might fall back on the original understanding for a clause like the Second Amendment where there’s nothing else to go on.

So I’m therefore a little puzzled by the way the D.C. v. Heller briefs downplay what the Framers would have regarded as the paradigmatic case of the confiscation of arms by the government: the Battles of Lexington and Concord, the events that started the Revolutionary War. It’s a bit as if briefs on a 1950s statute protecting ports from surprise attacks made only a passing mention of Pearl Harbor.

Briefly, by 1775 the conflict between Britain and Massachusetts was coming to a head. Parliament passed increasingly restrictive acts, and transferred British troops from Nova Scotia to Boston to enforce them, but they had little impact outside of the confines of Boston itself. In 1775, the Massachusetts legislature was meeting in Concord, and had built up a store of arms there to arm colonial militia. General Gage in Boston, under orders from London to do something, sent an expedition to Concord to round up the leaders of the legislature — people such as Samuel Adams and John Hancock — and confiscate or destroy the hidden caches of arms. Starting at Lexington, local militias assembled to block the troops’ progress, shots were fired, and the war began. In Concord, the British regulars searching the town did in fact destroy cannon and supplies and threw shot into the river.

Surely this story of national government troops being sent to confiscate arms held by people now recognized as heroes would have been prominent in the minds of those proposing that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” (Indeed, the whole tale of 1770s Massachusetts probably inspired the Third and Fourth Amendments as well.)

The Heller brief focuses the most on this story, detailing the history of pre-war Massachusetts, and noting that the Revolution began with the raid on Lexington and Concord. But what I’ve described as the “paradigmatic case” of arms confiscation is a little muted. Lexington and Concord in the Heller brief stand, not as the evil that is itself to be prevented by the Second Amendment, but as the occasion for various Framers to indicate their displeasure at the gun confiscation that resulted afterwards in Boston under General Gage:

Americans reacted strongly to the disarmament of Boston. Thomas Jefferson and John Dickinson drafted a “Declaration of the Causes and Necessity of Taking Up Arms,” issued by the Second Continental Congress on July 6, 1775. Gage’s disarmament scheme figured prominently among the “Causes” for armed revolt [listed in the Declaration].

It seems an odd way to characterize the importance of “the shot heard round the world.”

I think the reason for this treatment in the Heller brief is clear: Lexington and Concord are a bit awkward for Heller’s argument. For one thing, they don’t fit well with the “individual rights” theory of Heller’s brief, since Lexington and Concord are stories about colonial militias, albeit informally organized ones. But perhaps more importantly, if the lesson learned from Lexington and Concord is that individual citizens can keep arms to resist federal troops, that’s too anachronistic even for originalists. After all, what was going on in Concord was not just gun ownership, but the collection of a large cache of arms by (from the British point of view) a large conspiracy against the national government. The colonists even had cannon, the most powerful weapons of the day. Saying the Second Amendment protects that is going a bit too far for comfort:

Respondent does not suggest that members of private paramilitary organizations have a right to commit violent acts under the auspices of acting as a citizen militia. The Framers, who organized the militia under the new constitution, doubtless agreed that citizens should not compete with legitimate government authority.

I’m not so doubtless. If Lexington and Concord were the paradigm case, then what at least some Framers had in mind was exactly that citizens should have the power to compete with legitimate (federal) government authority, just as they had in 1775. Indeed, that seems to be the point behind Madison’s reassurance in Federalist No. 46 that the militia would be able to easily oppose federal troops should the national government become despotic.

I’m a little surprised, however, by the almost total absence of Lexington and Concord from the D.C. briefs, particularly the amici historians’ brief. Perhaps they concluded that if Lexington and Concord were admitted to be the paradigmatic case, then D.C. loses, but I’m not sure that follows. In any event, the D.C. brief fails to mention the battles at all. Historians Jack Rakove, Saul Cornell, et al. spend much of their brief talking about the debate over control of the militias in 1788-89; the Second Amendment, they say, was part of that discussion:

It is equally unsurprising that the militia remained an object of constitutional concern in 1776. The American revolutionaries were conscious heirs of a radical Whig tradition that regarded standing armies as a bane to liberty, and which celebrated the idea of a citizens militia as the optimal form of military organization for a

republic. See generally “No Standing Armies!” The Antiarmy Ideology in Seventeenth-century England (1974). This was a staple theme of eighteenth-century political writing, and its lessons were reinforced when Britain sent its standing army to Boston, first to enforce

the Townshend duties (1768-1770) and then to compel obedience to the Coercive Acts of 1774.

Oh, and by the way, that reminds us:

The latter led to the outbreak of civil war in April 1775, when the militia organized by the Massachusetts Provincial Congress resisted the British march on Concord.

It’s possible that I’m overestimating the importance of Lexington and Concord — that I’m reading into it a significance seen in 1837 (the time of Emerson’s poem) but not in 1789. Or, it’s possible that the cause of the battles was foggy even in 1789 — people remembered that a battle occurred, but not why. That would explain why the historians passed over it. (Or perhaps it’s because actual historical events aren’t studied much any more by historians.) But if the arms confiscation history of the battles was in fact salient in the minds of the Framers, then it has to be addressed. And I think Rakove, Cornell, et al. could have made it into a strong point that the Second Amendment is all about militia protection, not urban crime prevention. But they didn’t, so Heller has really the only word on the subject.

Definitional originalism is usually argued for by analogizing the [...]]]> One of the attractive features of originalism, I think, derives from the belief that sentences simply mean what they originally meant, either to the speaker or to the audience. This is a definitional argument: the definition of “to mean” is “what was originally meant,” and thus, by definition, if the Constitution does not mean what it originally meant it does not mean anything at all (in the same way that the set of all square circles is an empty set). I think this argument is mistaken. I think there are other sorts of sentences out there that have legitimate meanings that are not those necessarily assigned by either speakers or audiences (actual or potential) at the time.

Definitional originalism is usually argued for by analogizing the Constitution’s sentences to ordinary English sentences spoken in a quotidian context. For example, suppose you’re given a map with instructions written on it by a pirate telling you how to find his treasure. (OK, that may not be quotidian, but you could easily change the hypo to make it so: say it’s a grocery list.) If you want to find the treasure, you need to know what the words would have meant to the pirate’s likely audience. Fail to do that, and you fail to find the treasure.

Of course, if you really want to find the treasure, you need to know what the pirate actually intended, not just how audiences at the time would likely have interpreted the words. This is the point made by Stanley Fish recently in the Cardozo Law Review: the marks and sounds that ordinarily connote meaning are not “communications” at all unless and until they are communicating an intelligent being’s intended message. This, of course, is the old, disreputable “original intent originalism.” Fish argues, however, that whatever the practical difficulties it may pose, interpretation simply is the search for original intent. For example, if one knows that an alarm bell in a building is being rung by a monkey, it doesn’t mean “fire;” it means nothing at all. To paraphrase Hilary Putnam, Fish’s theory is that meanings just are in the head. And for the treasure map, it appears Fish is correct, at least if you want the treasure.

The problem with definitional arguments is that there is no good way to argue for them. If one’s interlocutors don’t buy the premise, then there is little to do but repeat it, perhaps while jumping up and down and waving one’s arms around. And it is particularly difficult if the proposed definition doesn’t cover the universe of possibilities.

So it is with Fish’s argument. If Fish were correct–that the only possible interpretation of a sentence is the one intended by the speaker–then once one receives definitive proof of what was intended, that should end all arguments as to what the sentence meant. But of course that’s ridiculous. People have long, drawn-out, and perfectly reasonable arguments all the time of the form: “That may have been what you intended, but that’s not what you said!” In other words, the sentence you spoke has a meaning other than what you intended, and I’m justified in interpreting it that way regardless of what you may have meant. This debate is over whether speaker’s meaning coincides with sentence meaning–the meaning a reasonable contemporary listener would place on it–and if not, which takes precedence. As near as I can tell from his article, Fish’s argument would make all such disputes meaningless babble. That’s a problem for Fish.

Most originalists now subscribe to the theory that what Constitutional sentences mean–what they should be interpreted to mean–is what they mean in this latter sense: the meaning that reasonable contemporary listeners would have assigned to the sentences. That is, most originalists now place Constitutional sentences in the same category as ordinary conversational sentences or correspondence, rather than the categories that would work best for Fish: codes, treasure maps, instructions. If the Constitution were a conversation or a speech (but not a treasure map), then focusing on original public meaning would be a perfectly plausible way to go about interpreting it.

However, original public meaning originalists (such as the New Originalists) face a Fish-like difficulty. Namely, there are still more categories of sentences, and the Constitution falls outside the domain where original public meaning holds sway. The Constitution is not a conversation or a speech or a treasure map. It is not even just a statute, as Jack Balkin implies in arguing that original meaning controls constitutional interpretation because it controls statutory interpretation. Rather, the Constitution is a declaration, by “We the People,” of the most fundamental principles of the government of our society. It is something more akin to a ritualistic affirmation, a cultural declaration of faith, along the lines of a religious ceremony or a pledge such as the Pledge of Allegiance.

And that puts the Constitution in a different class of communications than mere conversations, messages, instructions, and treasure maps. An affirmation, used as a ceremonial induction into a particular group or community, is continually being re-spoken as new members join. The meaning of the affirmation at any given time is thus the meaning ascribed to it by the relevant community at that time, not at the time it was first written. Take, for example, the responses required of Catholics at Confirmation:

Bishop: Do you reject Satan and all his works and all his empty promises?

Candidates: I do.

Bishop: Do you believe in God the Father almighty, creator of heaven and earth?

Candidates: I do.

Bishop: Do you believe in Jesus Christ, his only Son, or Lord, who was born of the Virgin Mary, was crucified, died, and was buried, rose from the dead, and is now seated at the right hand of the Father?

Candidates: I do.

Bishop: Do you believe in the Holy Spirit, the Lord, the giver of life, who came upon the apostles at Pentecost and today is given to you sacramentally in confirmation?

Candidates: I do.

Bishop: Do you believe in the holy catholic church, the communion of saints, the forgiveness of sins, the resurrection of the body, and life everlasting?

Candidates: I do.

This text is derived from the Nicene Creed, first set down in 325. Suppose at that time the people writing, reading, or speaking the Nicene Creed in 325 all had a different view from Catholics today of what the Holy Spirit was. It would make no sense to say that that understanding governs the Confirmation oath today, and that this is true due to the fact that the creed was written down. Surely what governs the meaning of the Confirmation oath today is what Catholics (as a group) today would understand it to mean, even though Catholics today are not the original drafters of the text.

The Constitution is a foundational set of rules and principles that defines the United States, just as the Confirmation oath is a foundational set of beliefs that defines the Catholic community. Of course, most people do not read the Constitution out loud and swear to uphold it — some government officials do, but not most ordinary citizens. But I don’t believe that changes the character of the document. Whether or not each individual citizen swears to uphold the Constitution, reads it aloud, or even reads it silently, by and large Americans understand its special importance in American political and legal culture and its significance in defining the United States as a nation. As Balkin himself has written, albeit in the course of making a different argument, “[e]ach generation must figure out what the Constitution’s promises mean for themselves.” They must figure it out for themselves because each generation adopts it anew, as each generation of Catholics affirms the content of the Nicene Creed anew.

In the course of adopting it anew, there is some opportunity for slippage in the meaning that is being passed from the prior generation. Over time, that meaning can come to nullify a clause entirely or change its meaning to the opposite of how the text was originally read. But, contrary to the standard objection of originalists (and the occasional practice of non-originalist judges), that change can’t happen overnight, without mass participation. One cannot validly affirm one’s own private Confirmation oath. There must be a community change, not a solipsistic event.

It might be thought that, whatever its merits as a description of community ideology, basing the interpretation of the document on the theory that it is agreed to anew every generation would compel the adoption of a similar basis for legitimacy. That is, reading the Constitution as continually reaffirmed requires basing its legitimacy as a binding document on that reaffirmation. And, as Randy Barnett argues, the Constitution’s modern legitimacy cannot be based on meaningful consent of the governed. Modern citizens are not given a choice whether to agree to the Constitution or not, except the Hobson’s choice of voluntary exile. Barnett argues that the only other option is to base the Constitution’s legitimacy on the written text that was originally ratified plus a very constrained ability to construe vague phrases in a way that does not contradict or nullify the text.

But I don’t think I’m committed to making that connection. I don’t think the mere fact that affirmations are sometimes voluntarily entered into means that their legitimacy necessarily derives from consent. Many, perhaps most, religious adherents would not view membership in their church as something that is truly optional. Leaving the church might be as much of a Hobson’s choice as moving to Canada. And yet one cannot be a Catholic and not take the Confirmation oath. Nevertheless, Confirmation is an important ceremony, so important it gets its own sacrament. It is a moment in which members pledge their fealty to a set of beliefs that defines the community. It gains its legitimacy, not from unfettered choice, but from the fact that the entire rest of the community one is formally joining has done the same thing.

Similarly, societal rules do not in general gain their legitimacy from consent. To take a trivial example, the rule that one must form a straight line to buy tickets at a ticket window has not been formally agreed to by anyone. No one asked me if I would prefer that Americans adopt the Beijing practice of forming a semi-circular scrum around the ticket window, which equitably rewards those who are in more of a hurry at the expense of those who have more time. (I’m curious how this will play out at the Olympic events this summer.) Nevertheless, I’m bound by that rule, simply from the fact that I’m an American in the United States. Each generation is similarly bound by the Constitution, as that document and its meaning is adopted by the community as a whole.

Balkin, Barnett, and Solum are all “New Originalists” — originalists who stress, not the original intent of the authors of a particular legal text, which [...]]]> Originalism is back in the blogs. Michael Dorf posted a brief column on Findlaw, Who Killed the “Living Constitution”?, followed by a comment from Larry Solum, a rejonder from Randy Barnett, a response from Dorf, and another reply from Barnett. (This follows the flurry of activity a couple of weeks ago on the meaning of “natural born citizen” — see Jim Lindgren, Solum, Jack Balkin, and Solum). This debate is over “New Originalism,” and how much New Originalism differs from Old Originalism or from “Living Constitutionalism” (presumed to be the only other choice — more on that in some other post).

Balkin, Barnett, and Solum are all “New Originalists” — originalists who stress, not the original intent of the authors of a particular legal text, which is unrecoverable in many instances, but rather its “original public meaning” — the meaning that a given sentence would have been assigned by its audience at the time it was drafted. Over the past few years, in a book by Barnett, in two articles by Balkin, in numerous blog posts, and in various other places the general contours of New Originalism have been delineated. Broadly, New Originalism looks to original public meaning to the extent that is helpful; if not, then the interpreter of a constitutional provision is free to look elsewhere for meaning, such as the structure of the text, court precedents, or what have you. That latter process, drawing from the work of Keith Whittington, is called “construction,” to differentiate it from “interpretation” of the Constitution, which (the story goes) requires looking only at original public meaning. New Originalism can therefore be thought of as a kind of Chevron two-step analysis for constitutional law: (1) Is there a clear original public meaning? (2) If not, is the proposed interpretation reasonable under other interpretive methods?

Dorf argues that, to the extent the analysis stops at Step One, New Originalism can produce some “odious” results, a remark Barnett takes him to task for. I would modify Dorf’s concern to add that the problem is not so much “odious” results, but bizarre results; results not only out of step with where the law is, but out of step with any plausible account of where it’s going–which is what would distinguish, in my mind, Sweatt v. Painter from a decision finding, for example, that the original public meaning of the letters of marque clause was to permit Congress to require the entire citizenry to wear chicken costumes on Sunday. Sure, that’s ridiculous; but suppose we dug up incontrovertible evidence that that’s what the public would have understood by it (what else could “letters of marque” mean?). Barnett is apparently willing to bite the bullet and say, well, if that’s what the original public meaning was, we’re stuck with it, until the Article V amendment process runs its course. Break out the chicken suits.

But although that debate is philosophically interesting, I don’t think it’s where the real action is, so resolution of that particular criticism of Dorf is not terribly important. Rather, my impression is that Barnett, Balkin, and Solum believe relatively few controversial questions will actually get resolved at Step One. (I should note that Balkin’s Step One, by explicitly incorporating “principles,” can be Step-Two-like. I don’t think that fundamentally changes my analysis.) Rather, most questions will be proceeding to Step Two.

And Dorf’s criticism there is, Step Two is not a heck of a lot different than Living Constitutionalism. Nearly all of the interesting constitutional interpretation issues jump immediately to Step Two–the nonoriginalist part of New Originalism. That is, all of the phrases of the Constitution that produce actual litigation–”equal protection of the laws,” “due process,” “commerce,” “necessary and proper,” “freedom of speech,” “cruel and unusual punishment,” etc.–all are vague, and therefore not susceptible to Step One resolution. Original public meaning can do nothing to resolve any of those disputes.

This, according to New Originalists, is actually a feature of their theory, not a bug. Original public meaning gives us the bedrock on which constitutional interpretation rests; it tells us that when the Constitution says “thirty-five years old,” it can’t be read to allow a president who is only thirty; it tells us that the obligation of the national government to protect states against “domestic violence” does not refer to spousal abuse. The problem is, no one argues those issues. There are no cases in which someone petitions the Supreme Court for a ruling on whether states should get three senators. New Originalism answers the questions no one asks.

That’s actually fine, if New Originalism were meant as a blow in the battles between philosophers of language. Philosophers of language have been struggling for decades to figure out how simple sentences such as “The cat is on the mat” or “Water is wet” come to have the meanings they do (assuming they have any meaning at all). But I think it’s fair to say that the promise of originalism has been far different than that. Rather than a theory of constitutional language, originalism has long been billed as a theory of interpretation–a theory that, when skillfully applied, will give us the answers to the really hard questions in constitutional law: is there a constitutional right to privacy? Why is Brown v. Board of Education rightly decided (or is it)? Is campaign spending free speech? Is it “necessary and proper” to the Commerce power for Congress to regulate home-grown wheat? What level of notice of a proceeding is required by due process?

The originalist part of New Originalism–Step One–does not provide answers to those questions. It only, as far as I can tell, makes us jump through an extra hoop before getting to where the action really is: non-originalist Step Two of the analysis, where courts and other interpreters can look at precedents, structure, history, context, public policy, and other sources of meaning.

If that’s how New Originalism would work in practice, it’s not even a second-best interpretive choice, as Barnett puts it. In most cases, it’s simply an unnecessary hoop before the main action — figuring out what the Constitution means today.

Starbucks Takes a 3-Hour Coffee Break

seems wayyyy too close for comfort to this:

Starbucks To Begin Sinister ‘Phase Two’ Of Operation

1. The villains continually have the upper hand. That may not initially seem like a plus. But think of the number of shows where the heroes sail through life, barely needing to worry, while the villains face setback after setback that repeatedly [...]]]> In honor of the BSG interviews that Dan, Dave, and Deven have posted below (which I hope to listen to soon), I thought I’d chime in with what I like about the show. I’m a big fan; BSG is one of only 3 “must-see” shows for me currently on television (the other 2 are Lost and the PBS NewsHour). My enthusiasm has waned a bit since “New Caprica,” but here’s what struck me as particularly interesting about at least the first couple of seasons:

1. The villains continually have the upper hand. That may not initially seem like a plus. But think of the number of shows where the heroes sail through life, barely needing to worry, while the villains face setback after setback that repeatedly results in defeat. E.g., Perry Mason, CSI, Star Trek (any generation), or the first Battlestar Galactica, where being trained by the Cylon defense force seemed to be a guarantee of utter incompetence in combat. Heroes that appear to face more realistic challenges that do not carry with them a guarantee of success are, at least, a refreshing change, and are more dramatically interesting for avoiding repetition and cliche.

Warning: Mild spoilers follow

The series has made abundantly clear that the remaining human fleet is absolutely no match for the average Cylon attack, and despite the temptation for “ability creep” (the heroes become more capable as the series progresses), that disparity has persisted into the fourth season. When the Cylons attack in earnest, the humans essentially have one strategy: run away! One thing that helps maintain the tension is that the stakes are extremely high; failure to escape, even once, means the total annihilation of the human race (well, at least the part they know of). It’s like “The Fugitive” on steroids. But even that would get boring if the same situation was repeated over and over again. The writers have been pretty adept at finding new ways to make escape continually tense. E.g., there’s some task that must be accomplished first that takes X minutes; a civilian ship may be left behind; the BSG gets separated from the fleet. Of course we know in the back of our minds that the entire fleet won’t be destroyed in any given episode, but lesser amounts of defeat are certainly possible and have happened.

The last series I can recall that had this sort of structure — the heroes are weak, the villains strong — is from a completely different genre, but is also one of my favorite shows of all time: Homicide. In Homicide, unlike just about any other detective show I’ve ever seen, the meddling bureaucrats in charge of the homicide squad are a constant source of irritation, and they almost always get their way. (Also: occasionally criminals get away, or crimes remain unsolved.) There’s only one thing that is more inspiring to action than seeing someone worthy prevail over an injustice, and that’s seeing someone worthy LOSE to injustice. Homicide skillfully exploited that emotion. BSG’s repeated escapes-by-the-skin-of-their-teeth are thrilling in a way they would not be if the Cylons were more easily defeated.

2. The civilian President and the rule of law. I’m sure this is a topic of discussion in the interviews, but I was particularly hooked by the story of the President being 27th in line for succession (she was Education Minister) and nevertheless stepping up to the plate. It’s like the corporal in the war movie who gets a battlefield commission to captain and nevertheless turns out to be a good leader. I also liked the conflicts that erupt between the President and the military, represented by Commander Adama (Edward James Olmos). It was a deft casting job to give the Adama role to an actor that can make even a military coup seem eminently reasonable. And Mary McDonnell does an excellent job with the role of President Laura Roslin; she’s possibly the best thing about the series. But there’s a significant caveat here: unlike the repeated escapes from the Cylons, the repeated ultimatums passed between the President and Commander Adama start to get old after about the 2nd or 3rd one. I disagree with Ilya Somin and others about the plausibility of these conflicts in general; I would hope that even in such a disaster, whoever remains would attempt to govern under the rule of law. But dramatically, some of the conflict scenes seemed overwrought. There’s only so many times you can have a major constitutional showdown that tops the last one.

3. Phillip K. Dick. I’m a tremendous fan of Dick’s short stories, having voraciously consumed a volume of them recently despite the fact I rarely read fiction any more. And Dickian themes occur repeatedly in BSG. The most obvious is the “Imposter”-type plot involving Sharon — how would you know if you were an android saboteur programmed to think you were an ordinary human? Frankly, that plot didn’t go on long enough for my tastes; it seemed Sharon (and the viewers) were just beginning to grapple seriously with the possibility when the show revealed its cards. The second-most obvious borrowing is from the short story, “Second Variety” (remade as “Screamers” with Peter Weller). Second Variety portrays the survivors of World War III on Earth; the Russian and American forces have manufactured killer robots to attack each other. At some point, however, the automated robot repair facilities start making exploding androids that appear to be human and attack both sides indiscriminately. Androids stamped “Type I” and “Type III” are discovered early on, but that leaves Type II, and the protagonist spends much of the rest of the story trying to figure out who Type II is. BSG, of course, features 12 Cylon humanoid models, only a few of which were known at first. While on the one hand I was pleased to catch the reference, I’m unclear why the Cylons only have a limited number of human models. In Dick’s story, it was because the robots, while adaptive, weren’t sentient. (Sort of — go read it.) That can’t explain BSG. The Cylon human models are, essentially, human; why can’t they design new models? (Indeed, the show has left it completely vague how, if at all, they’re NOT human.)

4. Space combat. It’s a minor point, but I like the way the fighter and capital ship combat scenes are done. There’s at least a nod to the realities of zero-G dogfighting; the fighters do not make wide, jet-fighter-like turns or rolls, but rather can do things like spin 180 degrees using attitude jets and apply thrusters to reverse course (think “Apollo 13,” only faster and with guns). Capital ship attacks involve, as a classic sci fi short story once imagined, ships jumping into view and launching massive numbers of missiles at each other. Scenes where the point of view is apparently outside of any ship are often silent or muffled. (Sure, “muffled” is still incorrect, but it works for me.) The illusion of vast distances in space is enhanced by a simple camera trick; a stable wide shot showing a very small fighter in the distance is quickly “zoomed in” so that the fighter is larger on the screen, but the “zoomed in” image is very shaky, as it would be if you were holding a telephoto lens. Again, this reminds me of the camera tricks in “Homicide,” such as the prevalent use of jump cuts, which left the viewer unclear on how much of a given conversation had been clipped out and made the conversations therefore seem a little bit more realistic (maybe the cut was over all the “umms” and “ahs”); or the quick spin of a camera at a dramatic shift in a conversation or interrogation, as if the viewer was standing in the room and just did a double-take to see a character’s reaction.

Obviously the show isn’t perfect; as I indicated, my own enthusiasm waned some over the last season, and there have always been aspects that strain credibility (superhuman but undetectable Cylons; Adama’s knowledge of the 12 models; overuse of extreme self-certainty among the characters to produce conflict; romances that pop up out of nowhere). But that’s a subject for a different post.

Anyway, a few days ago, I read a New York Times article on attempts by the EZ Pass system to crack down on toll evaders — drivers who purposefully go through the unmanned EZ Pass lanes and attempt to hide their license plates from the cameras by shielding them with various objects, including, in one odd case, a baby (I’m not sure I can picture how that was attempted). I was struck by this quote, about the money lost to toll evaders:

That is why Mr. Crosby and the other image review clerks are [...]]]> I had intended to post much more over the past couple of weeks, but Time did not permit. I asked it to be flexible, but Time tends to be a stickler about deadlines.

Anyway, a few days ago, I read a New York Times article on attempts by the EZ Pass system to crack down on toll evaders — drivers who purposefully go through the unmanned EZ Pass lanes and attempt to hide their license plates from the cameras by shielding them with various objects, including, in one odd case, a baby (I’m not sure I can picture how that was attempted). I was struck by this quote, about the money lost to toll evaders:

That is why Mr. Crosby and the other image review clerks are on the front lines of the never-ending battle to track down evaders who avoid paying tolls, wittingly or not. They each examine about 1,500 photos a day to identify the license plate numbers of the cars and trucks that go through E-ZPass toll booths without the electronic tags, or with ones that were broken or expired.

“If you let the bad guys get away with it, the good guys won’t pay,” said John Riccardi, a liaison for the Port Authority of New York and New Jersey at the service center.

This argument seems plausible on its face. Failing to enforce the EZ Pass lanes will diminish respect for the tolls, and lead to widespread toll evasion. But it is inconsistent with an argument heard frequently in copyright circles: that copyright enforcement, through lawsuits or DRM, fails to achieve any deterrent effect at all against the “bad guys,” and only forces “good guys” to jump through unnecessary hoops. Indeed, the argument sometimes goes, copyright enforcement decreases respect for copyrights, rather than increasing it. So does this argument apply to EZ Pass as well? Should EZ Pass be criticized, as the RIAA often is, for “suing its own customers”?

One option of course is to bite the bullet and maintain that, in fact, toll booth enforcement is no more legitimate than copyright enforcement and therefore both should be jettisoned. But I suspect most people making the copyright argument will want to distinguish highway tolls somehow. There are several possibilities.

1. Tolls actually pay for highways and highway maintenance, whereas copyright revenue is unconnected to producing more copyrighted works. Neither side of this argument seems to work as a rule. Certainly some copyright revenue goes to paying for prior work and helping to fund future work — think of a movie studio’s revenues. On the flip side, tolls do not necessarily go only to paying for road improvements. Yet the justifiability of toll enforcement does not seem to depend on how the money is being spent.

The argument in a more general form might simply be that tolls are legitimate, whereas copyrights are illegitimate, and that explains the difference. That states a difference, but I don’t see how it explains it.

2. Copyright enforcement through RIAA-style lawsuits and DRM is heavy-handed, whereas toll enforcement is not. I don’t see how being sued for running a toll booth is likely to be any more pleasant than being sued for downloading. And toll booths are more convenient than DRM? Really?

3. Tolls provide more notice of what’s permitted, whereas copyrights do not. This argument seems superficially plausible, but that plausibility is waning. Note that the only notice that’s relevant to this argument is notice that someone with legal authority wants to charge for access to the work. Toll booths provide clear notice that the state wants you to pay in order to access the road, but really obscure notice about why (it’s probably buried in a prior year state budget somewhere) or what your alternatives are (you could take an alternate route). Even if copyright law is hard to understand, the blunt notice that a copyright owner is charging for the work is in most cases fairly prevalent, especially now. Whereas there may initially have been some confusion about whether sites offering downloads in the 1990s were authorized to do so, if you’re getting movies still playing in theaters from alldvds4free.com, or downloading the Beatles from KaZaA, notice probably isnt’ the issue.

4. Tolls reduce congestion; copyright revenue does not. Of course, William Landes and Richard Posner have argued that in fact copyright licensing fees do reduce a type of congestion for creative works, at least where the “congestion” is caused by a proliferation of derivative works. But the main goal of peer-to-peer downloading suits and DRM is to prevent verbatim reproductions, rather than preventing derivative works. Due to intellectual property’s essentially nonrivalrous nature, there’s no congestion caused when unauthorized distributors transmit copies of works. It saps the market of some of its demand, but that’s not any different than saying that some people who were nominally obligated to pay did not. That’s the baseline assumption in both scenarios.

It’s the first part of the statement that I think is questionable, at least as a basis for the justification of toll enforcement. That is, while tolls undoubtedly reduce congestion on some roads at some times, that is not a universal feature of toll booths. There are some tolls that are located on roads that are hardly ever congested. The Greenway in Northern Virginia comes to mind, as does the Pascack Valley plaza on the Garden State, or the $2 toll that was long charged on the bridge in my hometown. If enforcement of those tolls is justified, then toll enforcement does not depend on congestion reduction.

5. People already respect tolls; consumers of copyrighted works do not respect copyright. The argument here is that while enforcement mechanisms can prevent an erosion of respect, they can’t build it up where it doesn’t exist. The problem with this argument is that I’m not sure it’s true as a factual matter. Sure, the technorati hate copyright. But they’re not exactly a representative sample of the population. There seems to be plenty of evidence that ordinary consumers take copyright seriously. See, e.g., the jurors in the Jammie Thomas trial. Meanwhile, while most people willingly pay tolls, it’s not because they’re filled with warm and fuzzy feelings about tolls or even about their need to chip in for road maintenance. At best, it’s a grudging respect. It seems copyright can at least claim that as well.

In short, I can’t think of a good way to distinguish the two. Should the EFF take on EZ Pass as its next litigation target?

Meanwhile, Rebecca Tushnet is live-blogging the Columbia Fair Use conference, which it sounds like was the place for copyright-types to be today. My own recent thoughts on fair use’s role in copyright law, as well as a few random thoughts on plane crashes, are here.

I have two comments of my own. First, I’ve only read the play, and never seen the movie, but I can’t say I’m a fan. The play struck me as boring, because it is so obviously morally lopsided in favor of the Fonda character. The conflict between the Fonda character and the Cobb character is about as interesting as watching the Patriots play a high school football team. It reminds me of something Thomas Nagel once said, that the egregious violation of human rights is philosophically uninteresting. The idea being that if your intuitions are not pulled in more than one direction, there’s nothing [...]]]> Over at the Volokh Conspiracy, several of the VC bloggers are making interesting comments on the jury deliberation classic, “Twelve Angry Men.”

I have two comments of my own. First, I’ve only read the play, and never seen the movie, but I can’t say I’m a fan. The play struck me as boring, because it is so obviously morally lopsided in favor of the Fonda character. The conflict between the Fonda character and the Cobb character is about as interesting as watching the Patriots play a high school football team. It reminds me of something Thomas Nagel once said, that the egregious violation of human rights is philosophically uninteresting. The idea being that if your intuitions are not pulled in more than one direction, there’s nothing to discuss. “Twelve Angry Men” gives the viewer nothing to think about, unlike, say, “Paths of Glory” (does military justice require individual culpability?) or “The Caine Mutiny” (were the defendants really innocent, in a moral sense?) or “Breaker Morant” (what’s justifiable conduct in a guerrila war?) or “The Verdict” (does the civil justice system work?).

My second comment is actually a question. Were all-male juries still the norm in 1957, when the film was released? That seems awfully late, given that the right of women to vote was adopted in 1920. When did it become abnormal?

This presents Dmitri with a bit of a dilemma: honoring his father’s request may mean destroying a novel that the world might love to read. Does he have any obligation not to destroy the novel? If not, then the decision should be an easy one. Presumably he has some sort of obligation to abide by his father’s wishes. If there’s no countervailing duty, then his decision is clear.

The question interests me because one prevalent, albeit self-serving, argument [...]]]> In the last couple of weeks NPR and Slate have reported on Vladimir Nabokov’s last, unpublished novel, which is written on index cards that are in the hands of his son, Dmitri. However, Vladimir’s dying request was not that the novel be published, but rather that it be destroyed.

This presents Dmitri with a bit of a dilemma: honoring his father’s request may mean destroying a novel that the world might love to read. Does he have any obligation not to destroy the novel? If not, then the decision should be an easy one. Presumably he has some sort of obligation to abide by his father’s wishes. If there’s no countervailing duty, then his decision is clear.

The question interests me because one prevalent, albeit self-serving, argument for making infringing music, e-book, or other downloads is that the publishers are making it too hard to get legitimate copies. In other words, the publishers have a duty to publish as widely as possible; having violated that duty, the countervailing duty not to infringe is partially offset. The nonpublishing owner has “unclean hands,” as it were, in any infringement case.

I’m skeptical that there is such a duty, but it is situations like Dmitri Nabokov’s that give me pause.

Surely there are moral considerations counter-balancing the obligation to abide by his father’s request. Part of that may come from the fact that Nabokov is an accomplished novelist. A very similar dilemma faced Franz Kafka’s friend Max Brod. Kafka had left instructions that his unfinished work — including The Trial, The Castle, and Amerika — be destroyed after he died. Brod ignored the instructions, and the publications of Kafka’s novels cemented his reputation. Given what we now know, it’s hard to criticize Brod’s decision.

That doesn’t necessarily indicate the existence of a duty to publish. It could be that there merely are, in certain circumstances, exceptions to the duty to fulfill a promise or request, such as when circumstances have changed. Such exceptions might indicate that it is morally permissible to publish, but not obligatory in any sense.

But I think the Kafka and Nabokov cases illustrate more than that. I don’t think it’s the case that someone finding such a work in their possession, and having no instructions at all about what to do, is entirely free (in a moral, not legal, sense) to do anything they want with it. I think, absent the instructions in question, someone who destroyed an undiscovered work of a master could justly be criticized for that actions. So it does seem that in certain circumstances, there is a duty to publish.

Yet it’s not clear what the contours of such a duty might be. Does an author who is still alive have a duty to write? Despite what law school deans might wish, it doesn’t seem that the duty goes that far, although such a duty would justify the anger sometimes felt at someone who is “wasting their talent.” Is a duty to publish part of a general duty to make creative expression as widely available as possible? For example, does a private art collector have a duty to make the art available for public display?

It seems the answer in all of these cases — the executors of novelists’ estates, the private art collector, and perhaps the record labels — depends on the quality and popularity of the work. If Nabokov’s last novel is Jackie Collins-type trash, then the case against fulfilling Vladimir’s last wishes seems much less compelling (indeed, Vladimir’s request would seem entirely sensible). Max Brod’s decision seems correct only because we know how it turned out. A private collector who was hording the only copy of some long-lost Van Gogh masterpiece might justifiably find protesters outside his or her house. If a record label had the next White Album locked in its vault, it might be in a similar situation.

All of these decisions are binary. The question is either to publish or not to publish. But that’s not quite enough help to the downloaders. For the downloaders to find a violation of a duty to publish, it has to be the case that the duty requires not simply publication of the work in question, but publication in the most convenient manner. After all, the music free downloaders seek has all been published — on CD. It can be obtained with a simple Amazon purchase — the listener need not even leave his or her house. Is there a duty not simply to publish, but publish widely and in the most convenient forums?

I think the answer to that has to be “no” in most circumstances. Whatever duty Max Brod or Dmitri Nabokov might have, it seems to me to be a weak duty, one that is fulfilled by simply making the work available, and does not require that, e.g., everyone gets a free copy of The Trial. A stronger duty might also require creation of inchoate works — after all, an inchoate work is simply a work that is only available in one person’s mind, and a strong duty to publish might overcome the liberty interest an author has to decide what to do with his or her time. But if there’s only a weak duty, I think it is clear record labels and similar publishers meet it for any work that has been published in some form. The “unclean hands” argument ultimately fails.

System accidents are fascinating events that have a sort of Rube Goldberg quality to them. They typically occur in highly complex organizations that have adopted systems and procedures to avoid simple accidents — [...]]]> As others have already noted, the Atlantic Monthly is now making its articles available online, including browseable issues going ten years back and select articles through most of the twentieth century. I immediately checked it out to see if one of my favorite Atlantic articles was up, and it is: William Langewiesche’s The Lessons of ValuJet 592. Langewiesche’s article is a captivating look at a classic “system accident,” the 1996 crash of a ValuJet (now AirTran) plane due to the improper loading of unspent oxygen generators in the hold. I highly recommend it.

System accidents are fascinating events that have a sort of Rube Goldberg quality to them. They typically occur in highly complex organizations that have adopted systems and procedures to avoid simple accidents — such as planes flying into each other in mid-air or cargo exploding in flight. The airline industry, nuclear power plants, large modern military forces, NASA, and contractors that build and maintain large structures such as buildings and bridges are all examples of such organizations. Such organizations are complex, with highly detailed procedures that cover every aspect of their endeavors, because they are dealing with tasks that carry with them the possibility of catastrophic damage. These procedures tend to weed out the simple and easily understood accident causes. In the process, however, the very complexity of the organization and the procedures required tax the ability of the human participants to follow them. What sometimes results is accidents that do not stem from a single, obvious cause, but rather from a number of small errors, any one of which would not cause an accident by itself, but which together combine to produce a disaster. In ValuJet 592′s case, for example, confusion among contract workers about “expired” and “expended” generators, between “generators” and “canisters,” about whether caps were required, about what color tags to place on them, and about why they were placed in the shipping department, all led to the accident — which nevertheless still could have been prevented if either the ValuJet receiving clerk or the co-pilot had questioned why they were being loaded aboard the plane. It’s only because every single one of those things went the wrong way that the accident occurred.

One frequent element of a system accident is the way in which humans and machines fail to work together well. Air accident reports often attribute such failures to “pilot error,” but that usually does not capture the whole story. Beginning in the 1970s, accident investigators and aircraft designers started to go beyond a simple notation of “pilot error” and ask if there was anything about the design of the aircraft or the procedures that made such error more likely. In other words, could things have been designed better to handle predictable and likely mistakes? This research is referred to as “human factors” engineering — that is, considering the likely human response to various situations as part of the engineering design. An early example was the response to an Eastern Airlines crash in the Everglades in 1972. While both pilots were trying to figure out if the landing gear indicator light bulb had burned out (itself a waste of pilot resources), one of them accidentally hit the steering wheel, which silently disengaged the autopilot. By the time they figured out the autopilot was off and the plane was in a descent, it was too late. Sure, that was “pilot error,” but it was an entirely predictable one — people accidentally nudge stuff all the time, particularly when they’re focused on some other task. The solution was to add an audible alarm when the autopilot is turned off — e.g., a recorded voice saying “autopilot disengaged.”

Such research applies beyond hazardous environments such as airplanes. Everyday products are often poorly designed to interact with actual humans. Take glass doors in office buildings, one of my favorite examples of where simple design choices can make a task difficult or easy. It’s often not clear from looking at such a door whether it’s supposed to be opened by pulling on it or pushing. This can be cleared up with a simple visual cue: a horizontal bar across the door, or a steel plate on the side of the door, indicates the “push” side. A short vertical bar indicates pull. Other designs, however, may not indicate which is which; indeed, many doors are very poorly designed with “pull” bars that in fact are supposed to be pushed. (Check out the Bad Designs website for lots more examples.)

How does all of this relate to copyright? Copyright law is badly designed to relate to humans. It’s particularly maladapted to apply to the humans that, more and more, need to know what the rules of copyright are: non-lawyer individual consumers.

Copyright law’s original purpose was to govern the publishing industry, and later other commercial enterprises such as music publishing, plays, record production, movie-making, and television broadcasting. In theory it’s always applied by its terms to everyone, but in fact it only applied to businesses that have the capacity to hire lawyers to make sense of vague statutes and conflicting case law, or to morally obvious situations like the pirate who sells knock-off copies for profit. As Alan Latman argued to the Supreme Court in 1972, in other cases, such as noncommercial copying by individuals, “Nobody would sue…, because it’s impractical for anyone to sue.” It’s only relatively recently that this hidden assumption behind copyright law has been exposed, as suddenly the activities of ordinary individuals have started to have a real impact on content owner bottom lines. Increasingly, it’s falling upon individuals, and not just businesses, to understand copyright law.

That would not be such an onerous task if there were clear rules for non-lawyers to follow. But copyright is bereft of clear rules. Take one of the most frequent questions individuals might have about copyright law: is X a fair use?

Of course nonlawyers are often unaware of the complexities of any law, not just copyright law. But the basic elements of most laws are within the grasp of ordinary citizens. Most people understand what libel is, and how to avoid it. They may not realize that opinion is protected (or if they do, that sometimes even opinion can give rise to liability), but they understand the basics that writing something false about someone in a way that harms their reputation can subject someone to a libel suit.

Compare that to copyright law. Fair use is a defense, but since even the basics of what’s protected (e.g., idea vs. expression) and what constitutes a violation (hello, “substantial similarity”) are fairly fuzzy, the question of what noncommercial uses are permissible devolves quickly into a discussion of fair use. And as all copyright lawyers know, fair use is a rabbit warren of questions. It begins with the standard recitation of the “four factors” codified in Section 107, all of which are extremely vague or difficult to apply. It’s a balancing test, so you don’t need all four factors to be present to have a fair use; indeed, it’s not clear any more how much some of the factors (the second and third) even matter. In fact, one of the most important elements of a fair use claim — “transformativeness” — isn’t even in the statute. Nor is there any indication in the listing of the factors which side tilts toward liability and which doesn’t. For that, you need to read some cases. And of course, don’t forget the uses mentioned in the preamble to the factors — “criticism, comment, news reporting, teaching…, scholarship, or research” — not that the preamble is determinative either way. When you’re done compiling the factors and the preamble, take a guess on how a court will rule. That judgement may depend on whether you or your opponent has done anything that strikes the judge as underhanded, even if it’s not traditionally part of the fair use analysis. An appellate court could come out differently.

You can see the temptation for people to boil this down for nonlawyers as “never copy anything without permission” or “all personal use is acceptable” or “copying up to 500 words is fine.” These are attempts to change the design of copyright law to meet the cognitive capabilities of ordinary people. As descriptions of the actual content of the law, however, they all fail.

If fair use and all of the other elements of copyright law are going to depend on being internalized by citizens in order to be effective, they have to be reasonably internalizeable. That means one of two things. Either copyright law will need to find some other means of de facto enforcement — technology comes to mind — or the law will need to be changed to make it simpler. Note, however, that copyright law is complex for a good reason; it’s not very easy to come up with rules that slice neatly along the boundary between things we want to be protected and things we want to be used. That’s why the law essentially leaves it up to the parties to decide what to sue over, and courts to decide cases on a fact-by-fact basis. That works well if disputes are relatively rare. But that situation has changed, and any simple rule that attempts to divide users’ rights and owners’ rights will inevitably, like Solomon, threaten violence to both sides’ interests. Nevertheless, the status quo is unstable. Something will eventually have to give.

Take this example from last night’s ABC World News Sunday, reporting on disabled sprinter Oscar Pistorius’s efforts to be allowed to compete in the 2008 Olympics. One key question is whether Pistorius’s artificial legs give him an “unfair” advantage over able-bodied runners — “unfair” defined plausibly as due to the use of technology during the race. Certainly Pistorius is using technology, but does that actually give him any advantage? When the New [...]]]> With the Daily Show’s writers on strike, you might think it difficult to get entertaining parodies of the poor state of network newscasts — where “in-depth reports” mean the story is 2 whole minutes long — but that’s not necessarily true. The weekend evening newscasts are becoming a pretty good parody of themselves.

Take this example from last night’s ABC World News Sunday, reporting on disabled sprinter Oscar Pistorius’s efforts to be allowed to compete in the 2008 Olympics. One key question is whether Pistorius’s artificial legs give him an “unfair” advantage over able-bodied runners — “unfair” defined plausibly as due to the use of technology during the race. Certainly Pistorius is using technology, but does that actually give him any advantage? When the New York Times looked at that issue 8 months ago, it actually did a step-by-step analysis of how Pistorius’s artificial lower legs compare to having muscles and feet, concluding that Pistorius has to work harder to achieve the same speed in the same amount of time:

Here’s how ABC News does it.

First, “some fear” that sprinters like Pistorius are catching up to able-bodied sprinters, and might “pass them.” (Check out this video at about the 1:15 mark.) How do we know that might happen? Because this PowerPoint graphic shows Pistorius moving ahead of another runner:

Second, allowing Pistorius to compete might mean that eventually we have to allow Steve Austin — the Bionic Man — to compete too. I kid you not:

Did ABC hire Kent Brockman while I wasn’t looking?

In the dream, I show up at a conference panel I’m supposed to moderate, only to realize I don’t recognize any of the speakers and I don’t have any information on me about who they are or what the panel is about. It’s five minutes before the panel is supposed to [...]]]> Over at Prawfsblawg, Liz Glazer has a post about the transition new professors experience from anxiety dreams about being a student (the math class you haven’t attended all semester) to anxiety dreams about teaching. Although I have been teaching for several years now in various capacities, I so far have not had an anxiety dream about teaching. (Knock on wood.) But I have had an anxiety dream about moderating a panel. It went like this:

In the dream, I show up at a conference panel I’m supposed to moderate, only to realize I don’t recognize any of the speakers and I don’t have any information on me about who they are or what the panel is about. It’s five minutes before the panel is supposed to start. I need to figure out a discreet way of finding out the names and bios of each panelist. Someone engages me in conversation before I can get to the podium. Not wanting to give away my panic, I talk nonchalantly. Three minutes. I extract myself from the conversation. Maybe if I just engage the panelists in conversation I’ll see their nametags. But they are busy talking to other people. Two minutes. I manage to get the attention of the first panelist. I ask the panelist to spell his/her name and confirm his/her bio. Time’s up. People are settling in their seats and looking at me. I’m standing at the podium. Boy, I hadn’t realized how well-attended this session would be. I flip through my papers once more, trying to find our panel description, but I’m having trouble focusing on the words. It seems awfully quiet.

Then I wake up.

First of all, the report is a little sketchy, but it looks to me [...]]]> Thanks Dan for the welcome, and I’m excited to be guest-blogging at Concurring Opinions again. I had intended my first post to be a continuation of the discussion Dan and I were having in the comments last week about heightened review for subpoenas to unmask anonymous actors on the internet, but events have overtaken me. Orin Kerr over at the Volokh Conspiracy has put up a post querying whether network-level filtering for copyright-infringing materials would violate the Wiretap Act; Orin appears to believe that it would, at least without consent from every potential sender of material that was scanned. This merges two of my areas of interest, copyright and electronic privacy law.

First of all, the report is a little sketchy, but it looks to me like the topic came up as possibly an off-the-cuff remark or an answer to a question at the CES conference in Las Vegas. It doesn’t appear that anyone is proposing implementing this right away. But the idea seems to be that network intermediaries — either ISPs serving individual subscribers, such as Comcast or Verizon, or perhaps ISPs closer to the Internet backbone, such as Level 3 or Sprint — may be able to use fingerprinting technologies to detect and block copyrighted content transiting the network as a way of preventing infringement.

There might be all sorts of practical problems with this. How would a filter distinguish between authorized and unauthorized downloads, for example? But that’s not what intrigues me right now. The question I want to focus on is, would this violate the Wiretap Act? It’s arguable, but I don’t think it would. I don’t believe an automated scan of communications, where no permanent copy is made, violates the Act.

Of course, as a cautious lawyer (perhaps a redundant description), I’d certainly advise any telecommunications company to be wary before proceeding here. The ECPA, including the Wiretap Act, is a convoluted statute with a lot of unclear terminology. In essence, the Wiretap Act prohibits intentional interception of an electronic communication. There’s an exception for consent — that’s why receiving an email is not a violation of the Act — but Orin’s already indicated why consent might be hard to obtain here from everyone. Could telecommunications companies do this kind of filtering without consent?

I agree with Orin that it doesn’t seem that the exceptions allowing service providers to intercept communications for business-related reasons — Sections 2510(5)(a)(ii) and 2511(2)(a)(i) — would be of much help. In order to take advantage of the first of these exceptions, the service provider would need to be able to claim that filtering traffic for files infringing on the rights of others is “the ordinary course of its business.” Perhaps that will become the ordinary course of business someday, but it doesn’t seem to be right now. The second provision cited above specifically rules out “utiliz[ing] service observing or random monitoring” except for quality control, so that’s no help either.

Nevertheless, I think there may be room in the Act for automated filtering. It all hinges on the definition of the term, “intercept.” The central provision of the Wiretap Act makes any person who “intentionally intercepts … any wire, oral, or electronic communication” liable. “Intercept” is defined as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” So, in order to violate the Act, one has to (1) intentionally (2) use a device to (3) acquire (4) the contents of a communication.

What does it mean to “acquire” the contents of a communication? That has always been a little unclear. Here’s what I wrote in a chapter on civil applications of the ECPA in the PLI treatise, Proskauer on Privacy:

The issue of what qualifies as “acquisition” has proven more difficult. “Acquisition” is not defined in the act, nor is its interpretation necessarily straightforward. For example, are the contents of a communication that is routed somewhere other than the intended destination, but not listened to or recorded, “acquired” for purposes of the act? What about a communication that is recorded but not listened to? Or a communication that is recorded pursuant to an exception, such as by a party, but later acquired and listened to by someone else?

Courts have struggled with the answers to these questions ever since the Wiretap Act was adopted. For example, a telephone conversation may be intercepted by attaching a wire to a telephone line and stringing that wire to a speaker where the conversation is converted back to sound and overheard by a third party. At what point has interception occurred? One theory is that the interception occurs at the moment the signal in the line branches off to the wire installed by the wiretapper. The newly installed wire itself is the “device,” and the diverted signal is the “acquisition,” even if no speaker is attached at the other end. An alternative theory is that the interception occurs when the signal is converted back to sound at the speaker attached to the wire; the speaker is the relevant “device,” and the reconversion to a human-perceptible form is the “acquisition.” A third alternative is that the interception only occurs if a human listener hears the sound waves produced by the speaker. The speaker is still the “device,” but acquisition does not occur unless a human listener is there to overhear the conversation.

In most cases involving live surveillance of the sort just described, the dividing line between wire, speaker, and listener will not be of critical importance, since all three events will occur nearly simultaneously, and it will likely be the case that the same person or group of people attached the wire and the speaker and are using the apparatus. But interception can also be accomplished by recording a communication for later playback. In such a case, does the interception occur

(a) when the signal is diverted;

(b) when the recording is made; or

(c) when the recording is listened to?

One early case to resolve this issue looked at a tape recording that had been made by one participant in a drug transaction. United States v. Turk, 526 F.2d 654 (5th Cir. 1976). When the police searched his car, they found the tape and listened to it. The other person on the tape, Frederick Turk, was then charged with perjury for having lied to the grand jury. When the police listened to the tape, was that an interception in violation of the Act? The Fifth Circuit said no — the first acquisition occurred when the recording was made, with the recorder serving as the “agent of the ear.” Turk’s colleague intercepted the conversation by recording it, but he did so with consent — his own. The police then acquired a lawfully intercepted recording. Most courts have followed Turk — an acquisition occurs no later than the point some device records the conversation, even if the recording is destroyed without anyone ever listening to it. As the Turk court put it, “In a forest devoid of living listeners, a tree falls. Is there a sound? The answer is yes, if an active tape recorder is present, and the sound might be thought of as ‘aurally acquired’ at (almost) the instant the action causing it occurred.”

OK, so copying a communication is enough for a violation, even if no human ever reads it or listens to it. But what about the situation where no recording is made and no human is present to read or listen to the content at issue? For example, suppose a wire communication is tapped, and the tap goes to a speaker in an empty room, where it goes unheard. Is that still an “aural or other acquisition”? Turk waffled on that point, and there have been very few cases that have looked at it. One was the Fourth Circuit’s decision in Sanders v. Robert Bosch Corp., 38 F.3d 736 (4th Cir. 1994), a case premised in part on the somewhat dubious conclusion that recording incoming calls to help capture bomb threats is not use “in the ordinary course of business.” In another part of the opinion, the court reached the issue of whether conversations that were picked up by a microphone in a security office and, unbeknownst to everyone, were directed to a speaker in another area of the plant that apparently was set to a very low volume, had been “aurally or otherwise acquired” under the Act. The court held that it was “satisfied” that no acquisition had occurred. A district court in New Jersey reached a similar conclusion, holding that acquisition occurs when a device either directs a conversation to a human or when it is “permanently memorialized, a feat impossible for a wire to perform.” Pascale v. Carolina Freight Carriers Corp., 898 F. Supp. 276, 280 n.1 (D.N.J. 1995).

I think these decisions are a reasonable interpretation of “acquisition.” Acquisition means enabling a human to perceive the contents of a communication, either by bringing that communication to a place where humans are present, or by recording it for future perception. If that is the correct interpretation of “acquisition,” then automatic scanning of the contents of a communication by a computer is not “acquisition.” It neither carries those contents to a human for perception, nor does it capture them for later perception. So programs like Google’s Gmail service, which automatically scans email content for advertising keywords, would be fine even without consent on this view. So would the ISP filtering at issue in Orin’s post, so long as no contents from the communication are recorded or transmitted to humans. Indeed, given that qualification, it’s hard to see what the privacy harm from such automatic scanning would be. Assuming nonsentient computers, who cares if a computer reads your email and never tells anyone about it?

Having just put up a long post, I don’t want to do another, but I did have one more in me. So instead of writing it [...]]]> Thanks to the Co-Op crew for inviting me here to guest-blog — I’ve really enjoyed it. I figured I would, but I did discover one thing I was not expecting: my blog posts are loooong. Longer than I would read if I wasn’t writing them myself (which is similar to what I used to tell the students in my Saturday morning Internet Law class back when I was an adjunct: I wouldn’t have signed up for this class when I was in law school!). So thanks to those who read and commented as well.

Having just put up a long post, I don’t want to do another, but I did have one more in me. So instead of writing it out, I’m just going to summarize cryptically: Read the excellent discussion of complexity and the law at Jurisdynamics. Read the fascinating article at Vanity Fair on the confusion at NORAD’s northeast regional headquarters on September 11. Contemplate Roberta Wohlstetter’s classic, Pearl Harbor: Warning and Decision, and Bob Ellickson’s Order Without Law. Think about whether the formation and enforcement of informal norms in a community displays similar properties and behaviors as complex systems, and how the salience of certain events in that community depends more on the conceptual framework the members operate under, than on the content of the formal law. Know thyself. Goo goo g’joob.

In the abstract, most people are in favor of interoperability, just like they are in favor of lower taxes, bigger houses, and better-tasting beer. But when it gets down to nuts and bolts, what’s the best way to provide for interoperability? More specifically, does an interoperable content-handling device need to protect the [...]]]> Interoperability and content protection (a/k/a DRM) have been much in the news lately. As Deven blogged below, the French DADVSI law recently passed the French Parliament and then last week was modified by the Constitutional Council. Meanwhile, Apple is grappling with Norwegian regulators over the interoperability issue as well. And Randy Picker recently raised the issue of interoperability and video game servers over on the University of Chicago blog.

In the abstract, most people are in favor of interoperability, just like they are in favor of lower taxes, bigger houses, and better-tasting beer. But when it gets down to nuts and bolts, what’s the best way to provide for interoperability? More specifically, does an interoperable content-handling device need to protect the content in exactly the same way as the original device (which would arguably limit the amount of innovation)? Is there some sort of threshold of “good enough” protection that could be identified and mandated (and if so, by whom)? Or is it solely up to one party to decide?

Of course, there are many who hate content protection in all its forms; their answer is no doubt that the law should provide the broadest exception for interoperability possible, because that weakens content protection the most. This post is not really aimed at those people; debating the limits of an interoperability exception with diehard content protection opponents is a bit like discussing Carthaginian-Roman relations with Cato the Elder.

I’m more interested in addressing the three-part choice Randy Picker posed in his post on the bnetd case, namely that those interested both in content protection and interoperability could: (1) prohibit interoperable devices from being made over the technology owner’s objections; (2) give the second-comer complete discretion over interoperability; or (3) place constraints on both the owner’s ability to object and the second-comer’s discretion to decide what interoperability means.

It’s the third choice I’m interested in, and in particular what constraints there would be on the second-comer. The problem arises because content protection typically goes beyond the mere encryption wrapper used to protect the content, a fact that is seen by some as a brilliant legal innovation and others as a shadowy, nefarious plot to subvert our entertainment freedoms. If you decrypt the content with a license from the encryption technology author (not usually a content owner, despite ubiquitous references to “Hollywood” doing this or that with DRM) all sorts of terms and conditions are included in that license. Suppose you decrypt using reverse engineering, and intend to shield yourself under an “interoperability” exception. How many of those terms and conditions do you need to follow in order to claim coverage under the exception? Obviously not all of them, because one of the terms is likely to be that a license is needed, another may concern the fees to be paid, a third term and termination, etc.

For example, in RealPlayer, Inc. v. Streambox, Inc., Streambox made a software “VCR” that recorded RealNetworks streaming-only files for later viewing or listening. Streambox seems not to have raised a Section 1201(f) defense for some reason, but what if it had? Is a program that makes recordings “interoperable” with a program that was designed to send files for immediate playback only? If so, where does interoperability end? Can an “interoperable” device make recordings in the clear, and have unprotected outputs, essentially making it the very sort of “black box” the anticircumvention provisions were designed to prohibit? Granted, 1201(f) does not apply to any activities that “constitute infringement under this title.” But designing devices to make recordings in the clear, with unprotected outputs, is not per se copyright infringement; otherwise VCRs would be illegal.

I don’t have a good solution right now; my only point for the moment is that the “Middle Path” of limits on both technology manufacturers and interlopers is a very difficult one, far more than I think most people realize. But it seems to me the optimal path if a solution can be found.

Faced with sharp criticism from the state and county women’s bar groups, Nassau County District Attorney Kathleen Rice yesterday defended her decision to let go a dozen part-time women prosecutors unless they agree to work full-time….

All of the part-timers are mothers, although the D.A.’s office has said that some have older children….

Responding to the criticism, D.A. Rice “said two of the top three executive positions in her office are held by women, compared to none under her predecessor…. She also said seven of the 14 management positions in [...]]]> Right around the same time venerable law-blogger Denise Howell announced she had been fired by Reed Smith, evidently for reasons related to her part-time status, this interesting article (sub. req.) appeared in the New York Law Journal:

Faced with sharp criticism from the state and county women’s bar groups, Nassau County District Attorney Kathleen Rice yesterday defended her decision to let go a dozen part-time women prosecutors unless they agree to work full-time….

All of the part-timers are mothers, although the D.A.’s office has said that some have older children….

Responding to the criticism, D.A. Rice “said two of the top three executive positions in her office are held by women, compared to none under her predecessor…. She also said seven of the 14 management positions in her office are held by women, compared to just two under Mr. Dillon.” On the issue of the part-time program:

“We’re dealing with life and death,” said Ms. Rice, who said full-time attorneys are better able to form the relationships with witnesses that are key to many trials.

“You can’t have part-time litigators,” said Ms. Rice, adding that some of her part-time lawyers have been allowed to leave trials at 2 p.m. while the judge and the defense are still in the courtroom.

Over the weekend the New York Times ran a follow-up article that gives more of Rice’s side of the story, and a letter from a reader appeared last week that basically says, “Having a child is a choice, so tough noogies.”