June 7, 2012  ·  Lessig

The Great Bob Kohn — Kohn on Music Licensing, eMusic, and now RoyaltyShare — felt it important to launch a twitter-snit against me, after I tweeted that I was going to deliver the commencement address at my high school (33 years after missing my own graduation). Here is the exchange: 

bobkohn
Great, Larry. Let them know why you hate the 1st Amendment: “@lessig: Friday I get to go back and give the commencement address.”
6/6/12 8:51 PM

lessig
@bobkohn you first.
6/6/12 9:56 PM

bobkohn
You’re way ahead of me Larry. Jefferson would be appalled at what you are doing. Why have you sold out? “@lessig: @bobkohn you first.”
6/6/12 10:37 PM

lessig
@bobkohn bob, what are you talking about?
6/6/12 10:49 PM

bobkohn
Your support of government censorship of political speech. “@lessig: @bobkohn bob, what are you talking about?”
6/6/12 10:56 PM

bobkohn
Rootstrikers @lessig : “Decl. of Indep. was speaking of natural persons only.” So, The NY Times, a corporation, has no 1st Amendment Rights?
6/7/12 2:49 AM

Before I offer my own reply to this, here’s what @jsalsman tweeted: 

jsalsman
@bobkohn Jefferson would have never allowed money to shout out political opposition. You shouldn’t either: http://t.co/lKZOAYBl cc @lessig
6/7/12 2:38 AM

jsalsman
@bobkohn for proof from Thomas Jefferson’s writing, see “unless the mass retains sufficient…for the trust” at http://t.co/oCre4mZF @lessig
6/7/12 2:46 AM

Which is great enough, but doesn’t respond to Kohn’s charge about me “selling out.”

  1. First, can we reserve the charge “selling out” to a context in which it is meaningful? To whom would I have been “selling out,” Bob? All the economic interests in the world are on the “corporations = people” and “money = speech” side. If you’re attacking me for not taking that side, you’re not attacking me for “selling out.”
  2. Whether or not “persons” refers to “natural persons only,” in my view, entities get First Amendment rights. That’s because I believe — with Scalia — that the First Amendment states not a privilege given to “persons” but a limit on the scope of “Congress’s” power. That means citizens, persons, foreigners, and dolphins all have First Amendment protection. Of course, to its great embarrassment, after Citizens United, the Court refused to reconsider its position on whether legal immigrants have a right to speak politically. (Justice Stevens made this point recently. I don’t know where Scalia was on that case, but he didn’t dissent from denial.)
  3. I have directly and explicitly argued — after some struggling with the matter for a while — that I am not in the “corporations≠persons,” and “money≠speech” camp. I made that argument at a League of Women Voters event in Concord last month. I was making it precisely at the time that Kohn launched his snit last night. Here’s a five minute response to a question about “money=speech”: audio.
  4. Finally, and most importantly, even if I did believe that “corporations≠persons” and that therefore they didn’t get the benefit of First Amendment protection (again, which I don’t), can we leave the trash talk to cable TV, Bob? it is absurd to characterize that position as support for “government censorship of political speech.” Or it is as absurd as saying that people who support copyright support “government censorship of political speech.” I have enormous respect for the people who are trying to respond to the corruption of this democracy by pushing for constitutional change. Even if I disagree with the particulars of their amendment, it is red-baiting to say that they support government censorship. Let’s leave the red-baiting to those who get paid to utter such silliness.  

May 30, 2012  ·  Lessig

I was asked to post the text to the Commencement Address I gave at Atlanta’s John Marshall Law School on May 19. With some hesitation (as tongue-in-cheek gets lost in writing), and with one important clarification (the corruption alleged was mine!), I post it here. 

I am a professor of law at Harvard. I run the university’s Edmond J. Safra Center for Ethics. At that Center for Ethics, we study corruption. Not Rod Blagojevich, or Randy Duke Cunningham corruption — not “criminals violating the law” sort of corruption. Instead, corruption as in improper influence.

Think about a doctor taking money from a drug company, and then sitting on a panel that reviews that company’s drugs: Not illegal; if disclosed, not unethical, but nonetheless, an influence that leads many to wonder whether it is truth, or money, that led the doctor to approve the drugs.

Or think about an academic taking money from a telecom company, and then giving testimony before Congress that just so happens to serve the interest of that telecom. Nothing illegal about taking that money; if disclosed, nothing unethical about taking that money. But  an influence that leads many to wonder whether it was the truth, or money, that led the academic to speak in favor of that company.

Or think about just about every Member of the United States Congress: taking money from the interests they regulate — Wall Street banks, coal companies, insurance companies, big Pharma — and then regulating in a way that makes life great for them, while making life for the rest of us not quite as great. Nothing illegal about taking that money; if disclosed, nothing unethical. But an influence that leads many to wonder whether it is truth or justice that leads Congress to care about them. Or whether it is just the money.

Now I tell you this about me because I want to establish my own expertise about corruption, so that I have the authority to say this:

My being here today, as your graduation speaker, is totally corrupt. There are plenty of brilliant and successful souls who would have loved the honor of addressing this graduating class of lawyers. But I’m here because I begged. And I begged because my nephew is one among you. And the love and pride that I feel for him led me to do something that I have literally never done before — ask to speak some place — and that in turn led your law school to do something no law school has ever done before — granted me an honorary degree and allowed me to speak to a graduating class. This is all deeply corrupt; I am expert and I can prove it: It wasn’t reason that led me here; it was love. And while that’s perhaps a more pedestrian, forgivable, sort of corruption, the question it now begs is whether I can dig myself out of this deep and corrupt hole, to make something useful, maybe even virtuous, from this corruption.

That’s something many of you know something about — deep holes that you need to dig yourself out of. I tried to find the tuition of Atlanta’s John Marshall Law School on its web page but I could only find the cost per credit hour — $1,128 — and because I’m a lawyer, there’s no chance I would know how to multiply $1,128 by the number of credit hours you all need to graduate, but I take it it’s big. And I take it as well that most of you have had to finance that big number with even bigger loans. Which, when they’re paid off with their even bigger interest rates, will be a really really big number. Way beyond the capacity of a mere lawyer to calculate, but I’m sure some of you know  waitresses who could calculate it just fine.

Suffice it that you leave this place with a great deal that you owe others, yet with a degree in a profession that too many have much too little respect for.

Indeed — let’s be frank — a degree in a profession that many think is itself just corrupt. That just like the doctors, or the academics, or the Members of Congress that I spoke of at the start, a profession that many believe has lost its true north. That cares too little about the justice it was meant to serve, and too much about the wealth it increasingly defends.

Many of my students feel this corruption every day of their working life. They came to law school to do justice. They left law school to work in Inc. law — “inc.” as in “incorporated” as in the law for corporations. No doubt that is an honorable and important part of our profession, but for many of them, this isn’t the law they imagined when they came to law school. They go through their whole career never meeting a client who is a real person, only clients who are representatives of the persons we call corporations. And while there are many who are convinced that corporations are persons, as I once saw on a sign at a protest, I’ll believe corporations are persons when Texas executes one.

My point is not to criticize “Inc. Law.” “Inc. Law” helps create wealth, it helps protect wealth. It gives great innovators a chance to bring their innovations to market.

Instead my point is to emphasize the importance of the other part of law. Not the “Inc.” part, but the people part. The person part. Or the real person part. The part that touches real people. With real problems.

The part that keeps a family in their home against an unjust demand for eviction. Or that enforces a simple contract with a bank, to supply the credit for a coffee shop. Or that protects a woman against her abusive husband. Or that forces an insurance company to pay on a claim they rightly owe. Or that defends a child in a foster home against the neglect of a distracted state.

This too is law. The law of Erin Brockovich, not the law of Cravath Swaine and Moore.

But here’s the thing about this law:

No one thinks it works well.

There are plenty of lawyers in “Inc. Law” who go home at the end of the day and feel that that system works. Their clients got the process they were due. Their arguments were heard. Their interests were fairly considered. If through litigation, litigation in a federal court: With great judges. Beautiful carpet. Clean bathrooms. If through a transaction, a deal cut in conference rooms at the Four Seasons. No doubt these lawyers work hard. Insanely hard. And the system rewards them with the sense that the system works.

Not so with the law of real people. There is no one in the criminal justice system who believes that system works well. There is no one in housing law who believes this is what law was meant to be. In contracts, you read about disputes involving tens, maybe a hundred dollars. The disputes of ordinary people. These disputes are not for the courts any more. Or if they are, they are for courts that are an embarrassment to the ideals of justice from our tradition.

The law of real people doesn’t work, even if the law of corporations does.

Now if I were to don my reformers cap, and turn to the question that I spend most of my time now addressing — the corruption of our democracy by the corrupting influence of money — I’d say, and who is surprised by this? In a world where .26% of Americans give more than $200 in a congressional election; .05% max out; .01% give more than $10,000; or .000063% — 196 Americans — give more than 80% of the superPAC money spent so far in this election, who could be surprised that it is the law for the rich that works, and the law for the rest of America that doesn’t.

This corruption we lawyers are responsible for. And we lawyers will only earn back the respect of the people when we show the people that the law serves the people well. That it serves them quickly. That it serves them efficiently. That it serves them justly.

John Marshall — whose name this law school borrows — was not among the framers of our constitution. But among those framers, there were businessmen, farmers, scientists, physicians and some lawyers.

No one could doubt the progress that business has made in the 225 years since our constitution was drafted. That progress is extraordinary.

Likewise, the drafters would certainly be in awe of the progress in farming too. Lack of food isn’t America’s problem. Too much food is.

Ben Franklin, the most famous american scientist, and most beloved of the founders, couldn’t even conceive of an iPhone, let alone a hand-held calculator.

And Dr. James McHenry, who studied with the framing generation’s most famous doctor, Dr. Benjamin Rush, still believed that bloodletting was the best way to deal with most illness.

In all of those fields, we as a people have made enormous progress.

Yet the story of the law is more ambiguous.

We today can pronounce the word “equality.” Our framers stumbled over that idea. And we today can be proud of the range of citizens that we count as equal as compared with those they plainly  and wrongly excluded.

But if you think about the law day to day, the law as it affects ordinary people, it was clear the law then was aimed at a more pedestrian crowd. At ordinary citizens and ordinary problems. And it was clear the greatest lawyers worked first on the law aimed at that pedestrian crowd. The law aimed at ordinary citizens and ordinary problems.

But since that time, since the founding, we have seen little progress in this aspect of the law. Indeed, we’ve seen an accelerating retreat.

We can cure cancer today. We could, if we chose, feed every human on the planet, three times over.

But we can’t give an ordinary citizen a easy and efficient way to protect her rights.

Courts are less open today than they were back then to the small claims — small in the scale of things, but not in their importance to those who bring them. Courts are less relevant to most Americans. The law has convinced most Americans that the law is for the rich, except that part of the law that involves the prisons.

We, all of us, have a duty to fix this. To repair this. To make it better. We lawyers in particular have that duty. And we make it better by practicing it better. By practicing the law of real people, and through that practice, making that law better.

When my nephew told me he wanted to give up his career in journalism, and his career as a race car driver, to become a lawyer, I was skeptical. I got the journalism part. But give up being a race car driver?

I was skeptical because I’m not convinced we know any more how to do this law stuff well. How to do it in a way that should make us proud, and gives others a reason to be proud of us.

But as I watched him grow through his years at this law school, I recognized that my skepticism was wrong. Never more than the day when he told me that he was thinking of simply hanging up a shingle after he left Atlanta’s John Marshall Law School, and practicing the law of real people.

Because he is brilliant, and generous, and playful and smart: And he will have a life that almost none of my students have: every day, he will meet the people he is trying to help. And some days, he will feel that he has helped them. He has the talent to make “People Law” better. This law school has given him the right and the will to make “People Law” better.

And so I begged to celebrate this day with him, and therefore with you, because I wanted him, and you, to hear this one thought:

When you practice this law of real people, when you experience the way the law fails real people, when you see that the only medicine that you have to prescribe — bloodletting — helps no one except the vampires, recognize this:

There is no one who could justify the system we’ve allowed to evolve. There is no one who could defend its failures.

But the men — and ok, only men, and only white men, and mainly white men with property — who gave us our nation also gave us a promise of something more than this.

And so when you experience this law of real people, you should feel entitled to demand that it work better. However bad it is, you should be proud of your work. But remain proud only if you do something to push it to become as great as our proud tradition promised it would be.

When LBJ took up the cause of civil rights, he was told by his advisors he couldn’t. That he would lose, and doom his presidency. “What the hell is being a president for,” he replied and then passed the civil rights act of 1964.

Well I say, what the hell is being a lawyer for?

You are as great as your proud parents hoped you would be. That’s what they feel today, as they watch you today accept this degree.

They stand with you today. Those who watched you grow up, and now celebrate the promise of your life. But as you begin as a lawyer, as you begin to dig yourself out of the financial hole that you are in, as you enter a field too many think is just corrupt, don’t think just about them, and the pride they can’t hide today.

Think also about those who forty years from now will look up to you, and ask you: what did you do then? Think of your kids, and their family. Think of the work they will see. Think of the reward they will recognize.

For like you, they won’t respect you for your money only. Or your fame. Or your incredible good looks.

They will love you no doubt regardless. But they will only respect you for what you did. For who you became. For how you left the world. For how you made the law, “People Law,” better.

Leave it better, lawyers, than we lawyers have given it to you. Than we, the lawyers who have educated you, have given it to you. Leave it in a place that your mother, and your daughter, your father, and your son, could respect.

Not corrupt, but true.

Not just rich, but just.

For what the hell is being a lawyer for?

Congratulations to Atlanta’s John Marshall Law School class of 2012. Congratulations to you, and to everyone who got you here.

 

* thanks to Luis E. Ventura for helpful corrections.

May 17, 2012  ·  Lessig

John Lumea has a piece criticizing Americans Elect and me about “neutrality.” I don’t agree with the criticism, nor with the genre of criticism it represents. (And this is really bad form but this has to be a hit and run response, because I’ve got 5 presentations in the next 3 days and am turning my internet connection off).

First the good news:

What’s refreshing and valuable in John’s criticism is the form and manner. Most seem to write as if they were feeding a snark meter. John’s is an honest and direct effort to engage an idea. I’m exhausted by the snark. I have enormous respect for the straight-forward engagement. Thanks for that.

Second: The substance, part 1. 

Americans Elect has a neutrality policy: The org will not — indeed, given the structure of the organization as approved by the DC Circuit, cannot — endorse a candidate prior to the rules being run and a candidate being selected. 

AE has a board, and a staff. 

AE also has an advisory board. 

I’m on the advisory board. I don’t know about others, but I was asked to join the advisory board after I had indicated some support and some criticism. When I was asked to join the advisory board, I was told it would not interfere with my ability to support any particular candidate — whether an AE candidate or not. To encourage this innovation, I agreed. 

As a member of the advisory board, I have asked questions, criticized certain decisions, channeled the criticism of others, and participated in calls. I have also argued in public a number of times that AE might be a useful path to selecting a reform candidate. In particular I have mentioned Roemer and Walker. Both seem to me to be plausible candidates to challenge the conspiracy of silence around the money in politics in this election. 

John criticizes my serving on the advisory board because he believes my advocacy is inconsistent with the principle of “neutrality.” He believes, moreover, that the distinction between an “advisory board” and “board and staff” is “Clintonian” — that the difference is “hair splitting” and not real. 

But the difference is real and common and completely the same with every other major party. Advisory board members are just that: They offer advice. They have no power. They have no rights. They can’t steer the org in one way or the other (beyond the effect of whatever argument they make, and that effect would happen whether or not they were members of the advisory board.) Certainly, to serve on an advisory board is to offer some level of endorsement — though as John notes, my endorsement is limited, as I don’t support the idea of AE because of its aspiration for a centrist candidate. I support the idea because it is a possible path to reform. 

John concedes there are these differences, but says the standard isn’t the reality of the difference, but the “public perception.” But here he seems to be making a move/mistake that others are making about AE as well: Compared to the other political parties, is there any difference here? The Democrats and the Republicans both, when there is no presumptive nominee (i.e., an incumbent) run party primaries. During those primaries, the entity running the primary is to remain neutral. But that entity has advisory boards. Does anyone doubt the freedom of members of those boards to indicate a preference for a particular candidate, even if the people running the primaries shouldn’t? 

The same point can be made about the criticisms of the “anonymous” loans to AE. I’ve criticized this anonymity too. But again, the important question is to compare AE (and its candidate, were it to have produced one) to the Democrats and the Republicans. Is either party able to say that is not supported by any anonymous money? Of course not: Both with have anonymous superPAC contributions pushing their candidate. The GOP had them for primary candidates. Had the Democrats had a primary, they would have had them for the Dems as well. I’ve argued that AE’s form of anonymity is less troubling that these examples — since it is to support a platform, not a candidate — but even so, the criticism loses its force once it is put in context. 

In both cases, my point is the same: We’ve got to avoid the Ceaser’s-wife syndrom: If a new institution comes along promising a change from a plainly broken existing institution, the test should not be whether it is perfect. The test is whether it is better than the alternatives — because otherwise, you bias in favor of the (plainly broken) status quo.

I should think, even counting “perception,” AE looks more “neutral” than the Republicans. And it is certainly afflicted with less tainted cash than the alternatives. 

Third: substance part 2

After criticizing’s neutrality, John goes on to make the claim that

A major reason why Americans Elect [cancelled its primary ballots] is this: Americans Elect is not seen as a neutral broker.

That’s a pretty strong empirical claim. I wonder what’s empirical foundation is?  But then he doubles down: 

Had Americans Elect instead created an unambiguous and airtight “public neutrality” plank … [it] would not be where it finds itself today. Of this I am sure.

I guess I’d to know how one can be so sure. There are lots of things that weighed in the decision whether to participate in AE or not — from the fear of supporting a spoiler, to the difficulty in verifying voter identity. The former is inherent. The latter is unnecessarily difficult. And while I’m sure the AE team will be testing exactly what was the most significant in explaining the relatively low level of participation, I’d be surprised if the data confirmed John’s assertion. 

Or again, to link point 1 and point 2: When the governor of a state endorses a candidate during a primary, John, do you think that leads voters in the state not to vote because they “believe that they have been ‘pre-subjugated’ to the will of insiders with money, power and media access”? And if not, why would you think that with a member of an advisory board, with no access to the mechanics of the voting system, no authority over the organization, and no “media access” worth nails beyond a simple twitter feed?

Thanks again for the engagement. And apologies again that I am going to run away now to work. 

May 9, 2012  ·  Lessig

So useless customer support forces me to this public place to ask this not-quite-public question: Why doesn’t T-Mobile work at ORD? 

<BEGIN quasi-geeky-tech-question>

Since upgrading to OS X 10.7.3, logging onto wifi networks has been much more difficult. At ORD, at least in the United Club, it is impossible using the T-Mobile network. Whenever I connect to the tmobile network, it opens the new (supposedly-quasi-automatic) wifi login screen. But it gets stuck there forever, with an indication that it is trying to connect to an apple URL. Why? Is there away around this? 

Here’s a screens shot: 

Help? 

</END>

May 2, 2012  ·  Lessig

Republic, Lost is going into paperback this fall. I’ve been grateful to all who have sent corrections. I’d be grateful for other errors flagged below. Unfortunately this can’t be a rewrite, so even if I should chuck it all and start again, not really possible. Thanks in advance.

April 18, 2012  ·  Lessig

Every so often, a beautifully clear and crystalizing innovation happens. Sopatrack feels like one of these. Is it right? Is it true? Is it fair? Those are three distinct questions. I’d be grateful for thoughts about the site. 

April 13, 2012  ·  Lessig

There are moments when 

all this seems worth it. 

Few. 

Fewer the fewer days I get with my kids.

But some. 

Today was one. 

A guy in a military cap,

out of place in an auditorium

of law students and faculty,

had heard me on an interview

before the talk, here in 

Tulsa.

And came. Convinced,

as he said, 

that no one got it.

But now, 

as he said,

that some do.

There is a potential here. 

Especially here. 

Way out here.

At least.

April 12, 2012  ·  Lessig

Here’s what we know:

  1. Our society has not yet achieved sex equality. 
  2. Women suffer that inequality differently. 

So:

In an unscripted television talk show appearance, Hilary Rosen referred to that differently-experienced inequality. She said that Ann Romney has “never worked a day in her life.” 

Ann Romney, of course, has worked plenty of days in her life — as a mother raising five children. As a father who watches in wonder as my wife works to raise just three children, I have endless respect for anyone who can do what she, or Ann Romney does. 

But it is absolutely obvious that Hilary Rosen was not saying that Ann Romney didn’t work in that sense. What she meant was that Ann Romney did not work in the sense that Hilary Rosen has, and millions of other women have — that while raising children, she has also spent at least 40 hours in a work place, away from home.

And even if Ann Romney had, she wouldn’t have done that the way the vast majority of women who do that have to do that — without permanent childcare, without someone who can always come to get a sick kid at school, without help to clean the house, without staff to cook dinner.

What Hilary Rosen was saying was that it is difficult — to say the least — for someone in the cradle of privilege to say that they know anything about people who live like most Americans: without privilege, without guaranteed support, constantly against an unforgiving edge which, if Obamacare is overturned, will only get sharper.

Yet immediately after Rosen made her completely true comments, her friends openly gather to ostracize her. Her true comments were “offensive” says Axelrod. Jim Messina “couldn’t disagree more.”

Really? Not even if you try really really hard, Jim?

It might be right that family should be off limits. But no one was talking about particular kids, etc. The comment was about a candidate’s spouse’s ability to judge, given she had claimed the right to judge.

The comment was totally fair, and right, in my view.  

April 4, 2012  ·  Lessig

Can someone help me understand what this is about? 

I joined a forum in order to respond to a comment. Immediately after I joined, I began to receive literally hundreds of emails from other fora I hadn’t joined, each sending me my joining credentials for that forum. 

What benefit does anyone get from this? 

March 12, 2012  ·  Lessig

Anonymous at the Economist (because everyone at the Economist is anonymous) has weighed into the debate between Ezra and me with an important question, and an incomplete answer.

They [allow me this grammatical mistake so I don’t have to say “he or she”] rightly read me to argue that there may be a link between gerrymandered districts, polarization and fundraising. 

And then they rightly raise an important question: “Isn’t gerrymandering the really serious problem here?” (Since it is gerrymandering that creates the safe seats which makes it less costly for candidates to appeal to the extremes.) As they go on: 

this logically has nothing to do with money. If we left the definition of congressional districts to an algorithm expressly designed to minimise the “safeness” of seats, the fund-raising advantages of “extreme” positioning would decline, elections would produce more moderate representatives, and partisan polarisation would decline, regardless of the campaign-finance scheme. That suggests “the current system for funding campaigns” isn’t the crucial variable.

And then they end with the critical sentence that I wanted to flag: 

If the need to raise many small donations nevertheless continued to “exacerbate polarization” by exerting pressure to raise funds through relatively purist partisan rhetoric, couldn’t we lift that pressure by raising the cap on donations?

It is true that if my hypothesis is right, ending gerrymandering would increase the cost of polarizing fundraising. That’s not enough to say it would end it. It just would not be as easy. 

But the last sentence quoted above is why I am insistent that the problem with Congress is not just (and not first) the problem of polarization. Because while one might well “lift the pressure” to “raise funds through relatively purist partisan rhetoric” by “raising the cap on donations,” one wouldn’t address the more fundamental problem with the current system: That the tiniest slice of the 1% is funding the elections. 

Two bits of recent data make this point quite clearly, and more dramatically, than I did in my book.

The first is the conjunction of Rick Hasen’s recent piece in Slate, measuring the rise in independent expenditures in this election cycle (“What is the total for this election season through March 8? More than $88 million, a 234 percent increase over 2008 and a 628 percent increase over 2004.”) with the Ari Berman’s piece in the Nation analyzing who those funders are (196 individuals account for 80% of that spending). (And for good measure, see also the Sunlight Foundations great piece, The One Percent of the One Percent.)

The second is some data calculated by a fellow at the EJ Safra Center, Paul Jorgensen. Using zipcode maps and a much cleaner dataset of contributors, Paul is able to calculate the per capita contribution of the top 1% versus the per capita contribution of the 99%. Here’s what it looks like for 1990, 2000, and 2008.

The problem with American democracy remains, in my view, that

  1. Congress is dependent upon its funders AND
  2. “The Funders” are not “The People.” 

If the Economist got its way, problem (2) would only be worse: the funders would be even less “the People.” And I remain convinced that one of the reasons we can’t get to Ezra’s solution to the polarization mess is problem (1): Congress is dependent upon its funders.