The Casual Blog

Category: law

A new crane, a wrongful execution avoided, and factoring in dissonance

14 09 17_2621_edited-1I like watching work at construction sites, and I particularly like cranes. They denote strength and optimism. So it was a particular treat this week to get a close view of some hardworking guys putting up a big crane on a building site one block up from, and almost level with, our apartment. It took two guys about a day a a half to put up the structure, and a group of five worked on the cabling for another day and a half.
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There are lots of good arguments against the death penalty, including that it doesn’t deter crime, it costs way too much, and it conflicts with the fundamental moral rule against killing. Recently I was powerfully reminded of another one: our criminal justice system inevitably gets some cases wrong and convicts innocent people.

It was front page national and local news recently that Henry Lee McCollum was found innocent after 31 years on death row. As a younger attorney, I volunteered to represent McCollum in one of his appeals (to the N.C. Supreme Court). He’d been convicted – found guilty beyond a reasonable doubt by a unanimous jury – of a horrible crime – a particularly gruesome rape and murder of a 13-year-old girl. After I’d spent many hours studying the record and the elaborate constitutional doctrines surrounding the death penalty, I pulled together a lengthy brief of what I thought were the best arguments for not executing him.

In my brief, I did not mention the possibility of innocence. Truly, despite McCollum’s innocence claims, I never seriously considered the possibility. He’d made an elaborate, detailed, signed confession. Why would anyone confess to a crime they didn’t commit?

Of course, we know now that this is all too possible. Coerced confessions happen. The case of the Central Park five, young men convicted of a brutal rape of a young woman jogging in the park back in the 80s, is a dramatic example. Just this month New York City agreed to a settlement of $41 million to compensate the young men for their wrongful conviction and imprisonment.

McCollum was and is a mentally disabled person (IQ of around 60, as I recall), and when I met him, in the visiting room at Central Prison, he seem gentle and soft spoken. He was still a teenager at the time of the crime. It’s not hard to imagine that he could be coerced into doing something contrary to his interests. Apparently after the interrogation and confession were complete, he asked, Can I go home now?
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I’d thought about him from time to time over the years, and figured he would probably escape execution because of later developing Eighth Amendment (“cruel and unusual punishment”) law barring execution of the severely mentally disabled. It was cheering to hear that a team from the Center for Death Penalty Litigation had worked diligently on his behalf. But it’s also horrible to think of the injustice our state (that is, us) inflicted. Putting a man on death row for 31 years is, in a very real sense, robbing him of his life.

We now know that eye witness identifications are far from completely reliable. Confessions are not always reliable. Memories can seem absolutely certain, and still be wrong. We are inevitably going to make some mistakes in on the basic question of guilt or innocence. This argues strongly against punishing people with death.

Mistakes Were Made

The more I learn about how error-prone our thinking processes are, the more I think we should be a little more humble about the power of our brains and the reliability of our notions. I’m re-reading Mistakes Were Made (But Not by Me), by Carol Tavris and Elliott Aronson. Tavris and Aronson are social psychologists, and their book is a lively guide to the systemic flaws in our perceptions and theorizing. Their primary subject is cognitive dissonance, and the comedy and tragedy of self-justification that flow from it.
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Dissonance occurs when we try to hold two conflicting ideas in our heads at once. It causes us discomfort, and we will perform remarkable mental gyrations to avoid it. Thus it is amazingly hard to talk someone out of strongly held beliefs. Dissonance makes us ignore and suppress facts and arguments that don’t fit with those beliefs. To avoid dissonance, we come up with justifications for our most egregious mistakes.

Tavris and Aronson convinced me that this is not something that happens only now and then, but rather is pervasive. One of their numerous examples is police coercion. The police “know” (strongly believe) that a suspect is guilty, and therefore feel justified in using extreme coercion to extract a confession. The innocent suspect is confronted with powerful dissonance – actual innocence and authority figures forcefully insisting on guilt. One path to eliminating dissonance is to confess. It isn’t that hard to imagine that a young or weak person could go that way.

They note that even scientists are vulnerable to this basic mechanism, but suggest that science itself can help us address our inborn tendency to avoid dissonance. The ability to allow for the possibility that we might be wrong is incredibly valuable. It can keep us from making terrible mistakes.
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Discussing open source ballet with Robert Weiss

Do open source software and ballet have anything in common? Sure, they have some obvious differences. But they share an imperative to collaborate and a creative spirit. Anyhow, I’m a big fan of both, and I’ve been thinking about whether some of the lessons of open source could be applied to ballet. Last week got a chance to kick ideas on this around with a great choreographer, Robert Weiss.

Weiss, who goes by Ricky, is artistic director of the Carolina Ballet, which plays out of Raleigh, N.C. He spent the early part of his career as a dancer at the New York City Ballet with its famous director, George Balanchine. In more than a decade with the Carolina Ballet, he has been a prolific choreographer, producing dozens of ballets. He’s also recruited superbly talented dancers from around the world and melded them into an outstanding company. When we met last week, along with my friend CB Board Chair Melanie Dubis, at Buku for lunch, I thought, this must be close to the world’s greatest job — working every day with beautiful, talented, dedicated people to create art for the ages. What could be more wonderful?

When we met for lunch last week, it quickly became clear that it would be more wonderful to not be constantly worried about money. If only, he said, he had better funding, he could spend more time thinking about dance and less about fund raising. Ballet is an art form that entails numbers of dancers, all requiring paychecks, and the same for musicians, costume designers and costumers, set designers and sets, lighting designers and lights, stage management and crew, and of course, choreographers. As an art, it is capital intensive. There are inherent barriers to reaching a wide audience, including lack of exposure to the form and its traditions.

As Ricky described the process of creating a new work, it was plain that it was highly collaborative. When he choreographs a new work, it is created on specific dancers, and the work is shaped in view of their individual qualities. The work draws on a tradition that goes back to the Renaissance, with a large vocabulary of movements that are available for re-use. (As Ricky warmed to the subject, he stood up from the table and showed a couple of classical gestures, and his sudden transformation from regular person to dancer was electrifying.) And of course, there’s collaboration with the aforementioned costume designers, set designers, and many others. It is in general an art of great idealism and unselfishness, at least in the sense that almost no one expects to get rich from it, and many are prepared to subsist on a shoestring budget.

But in ballet as in most of our endeavors, there is an unexamined assumption that intellectual property protection is important. Thus copying of videoed performances is subject to the draconian penalties of copyright law. The dances are kept locked down, on the assumption that making them freely available could result in lost value. I raised the question with Rocky and Melanie whether this really makes sense. Is copyright protection actually increasing the value proposition of ballet, or is it lessening it?

As I explained, the open source software community has learned some lessons about this that the rest of the world is starting to apply. Open source innovators, whose projects are based on freely sharing their code, realized that the traditional approach to intellectual property would not work for them, and so they created new licensing models, such as the GPL, that encouraged sharing and re-use. That approach has led to incredible growth in open source software. The model is spreading outward to other creative endeavors with such tools as Creative Commons licensing.

Could it be that less IP protectiveness could expand the audience for ballet and bring in new funding? What if, instead of protecting ballet as carefully as possible with copyright, the product was unlocked and made available under a Creative Commons license? For example, if well-produced video of the Carolina Ballet was readily available on the internet without charge, couldn’t that introduce many more people to ballet, with some of them eventually becoming balletomanes?

Ricky noted that even the best video of ballet is only a pale reflection of the experience of live performance. But he also admitted that he knew of people who had had transformative personal experience through a recorded performance. He also noted that it would require funding to make video recordings of a quality that he’d be comfortable presenting in public. (Footnote: a couple of days after our meeting, I saw a documentary on the choreographer Jerome Robbins called Something to Dance About, which is great, and illustrates how video can communicate something meaningful about dance.)

Open source innovation generally involves experimentation. I noted that there could be approaches to video and to funding that none of us has thought of yet. We agreed to talk more about what might be possible. It may be that you have ideas or experience in applying open source methods to artistic endeavors. If you have ideas, please share them.

Copyright and musical creativity

One of the great things about my job as an intellectual property lawyer in a software company is that I get to play with some big ideas. Sometimes it’s fun. But I also have to deal head on with complex legal constructions that cause confusion and mischief. I’m thinking particularly of aspects of patent and copyright law. I’ve written a number of times, including this week on, about the problem of bad software patents that hinder innovation. Another concern is the expansion of copyright law in a way that inhibits creativity.

I was fortunate to hear a lecture this week at Duke Law School by Jennifer Jenkins, who discussed aspects of copyright law as applied to music. She ambitiously took on the entire western tradition, starting with Plato, and was entertaining to boot. Although Jennifer didn’t summarize it like this, her examples suggested that copying has always been a part of the creative process in music. Laws against copying music are relatively recent, and they’re expanding and being applied at a more and more granular level. This blocks an important part of creative activity.

Viewing imitation and copying as creative forces is not the traditional way of thinking about creativity. But the traditional notion that technical innovation is principally the work of lone geniuses makes is largely a myth. There is no single inventive or creative act that does not actually incorporate a long series of preceding inventions or creations. If you look over the shoulders of James Watt, Eli Whitney, Thomas Edison, or the Wright Brothers, the inventions for which they are famous incorporated both many generations of preceding technology and the work of contemporaries. Brian Arthur, in The Nature of Technology looks at this process through the lens of evolutionary biology.

The same is true with music. Each creative musician takes the tools of preceding generations (scales, tunings, harmonic systems, instruments, notation systems, electronics, etc.) and tries to express something that’s both personal and universal. In some musical traditions, literal copying is an accepted procedure. This is certainly true in jazz and blues. It is difficult to imagine how either form could have developed unless later musicians borrowed from earlier ones. The same is true in the classical tradition, where composers borrow from other composers, and musician’s take the composer’s written text and performance norms of predecessors.

Jenifer threw out the idea that social control of music and reining in dangerous new sounds was a continuing theme of western civilization, from the Greeks, through the efforts of the Church in the middle ages, to the lawsuits against sampling by hip hop artists in our time. She pointed out that sampling technology made possible new forms of creativity, which our copyright system has quashed without any careful thought. Our repeated expansion of the term of copyrights has diminished the amount of material that our artists have to work with even as technology has expanded creative possibilities. Expanded copyright assures a wealth transfer from society at large to those with significant copyright assets, but serves no larger purpose. This policy really makes no sense as social engineering. And to the extent that it actually discourages and diminishes creativity, it’s just plain wrong.

The only consoling thought is that no amount of regulation will entirely stop the musical creativity. It is a fundamental human activity, like as eating and talking. If music were outlawed entirely, it would go underground, like alcohol in the prohibition era, or recreational drugs in our time. This may already have happened with certain genres of hip hop.

Until Jennifer’s talk, I hadn’t thought to consider myself particularly lucky that most of the music I work with is old enough to be in the public domain, so I’m not directly encumbered by the copyright problem. I refer to the great European piano music of the eighteenth, nineteenth, and early twentieth centuries. Although the music is written, there are many aspects of it that are unwritten. The tradition is passed along from teacher to student. It is a thoroughly unmodern, untechnological process. It’s a pleasing counterpoint to my highly modern day job.

For example, I got over to Durham again yesterday for a piano lesson with my teacher, Randall Love. Randy is an associate professor in the music department at Duke, and, like me, a graduate of Oberlin. (He was a year ahead of me, but our paths never crossed.) He has a speciality in fortepiano, and I originally went to him with a view to getting deeper into Bach. And I did. But in the past few years, he’s taken me much deeper into my current main interests: Chopin, Liszt, and Debussy. Our lessons are at irregular intervals, which I schedule when I feel it’s time to get significant feedback on a piece I’ve fallen in love with and tried to make my own. They usually last more than two hours. Although we begin by catching up on each other’s news, most of the lesson involves intense concentration and effort.

At the lesson yesterday, I departed from our recent pattern (no Liszt or Debussy) and brought Robert Schumann’s Arabeske Op. 18 and Chopin’s prelude in C. The Arabeske begins as a light, lyrical game but has sections of brooding and dreaming. I thought I played it rather well the first time through, but Randy found many aspects in need of closer examination, such as various ways to treat the appoggiatura. Although we mainly discussed musical issues, such as balance and phrasing, Randy had some interesting ideas relating to technique involving the wrist and arm. He recommended that I consider more arm focus when playing extremely soft.

After I’d played the music I’d prepared, Randy played for me one of Chopin’s most famous concert works, the third ballade. It’s a gorgeous piece of music, and I enjoyed his interpretation. It was a well modulated, thoughtful approach to the musical ideas, with ample sonority in the big parts. What a rare treat to get a personal performance by a concert artist.

Supreme Court connections to gifted people

This week I signed a letter in support of the nomination of Elena Kagan that was written by Peter Keisler and Harry Litman and signed by most of the Supreme Court clerks from the year (OT ’86) our group worked for the Court.  I always liked and respected Elena.  She was bright and friendly, and I was happy to guard her in our clerk basketball games, where I was fortunate to have a meaningful height advantage (she could shoot).   I find it reassuring that in a world where Tea Party whack jobs are sometimes taken seriously that Elena with such old-fashioned and relatively unexciting qualities as intelligence, balance, and decency has quietly risen to the apex of the legal profession.

I made another Supreme Court connection this week when I caught up with Larry Lessig.  Lessig clerked for Justice Scalia a few years after I did.  Now a law professor at Harvard, he’s distinguished himself as a constitutional and intellectual property law scholar and reformer.  His work on copyright law, including Free Culture and Remix, challenges the received wisdom that more copyright protection promotes greater creativity and shows that the opposite may be the result.  In this area, he’s a true rock star.

Lessig’s current project is focusing on the corrosive role of money in our political system.  On Tuesday Mel Chernoff and I attended the talk he gave at Campbell Law School promoting public financing of elections.  He’s well known for his extraordinary slide shows, which use super quick cuts to press points, and this was a good one.  We’d corresponded by email previously, and it was good to make a face-to-face connection after the event.  In addition to being brilliant, he seemed like a warm and sincere guy.

When I have personal encounters with really gifted people, I generally find it unsettling.  It’s inspiring, and I find myself thinking so much more is possible, but also being more-than-usually aware of my personal limits.  As John McPhee once noted in the context of great tennis players, there are many levels of the game.   It’s a privilege to play with higher level players, and rewarding. If it doesn’t kill you, it makes you stronger.  But it does not promote calm and tranquility.

It is

Christmas gifts and losses

Shopping is not something I do for fun.  But with the hard deadline of Christmas looming, today I finally faced up to the inevitable:  I needed to focus on buying some presents.  It is hard to think that anyone in my present-buying orbit really needs any material thing that I might give, but tradition is powerful.  I braved the traffic, the lines, and the bewildering cornucopia of goods, and found some things at last.  Whew.

One thing I like about the fall and winter holidays is childhood memories.  How wonderful it was to look forward to a visit from Santa Claus!  What fun to see relatives and friends!   Ah, the sweets and smells of baking cookies!  It is hard, though, to think of those I loved who are gone.

As I slowly made my way through mall-oriented traffic, I heard an unusual radio story on NPR’s This American Life.   A man explained how his mother committed suicide at age 79 with the knowledge of her friends and family and with his support.  She was not depressed or terminally ill, though she was conscious of struggling with dementia.  She read Final Exit and composed a plan involving an overdose of sleeping pills and a plastic bag.  Then she practiced the technique repeatedly, with her son’s supervision.  The composing and carrying out of the plan took place over many years.

When she finally picked a day, she let those close to her know, and had final visits.  The last person she saw was her son.  She was concerned that he not be exposed to legal risk, and so he left her for some period while she carried out the plan.  He said that he was worried, when he returned, that she might have taken the pills but been unsuccessful.  She was, however, dead.  In recounting this, he was clearly moved and sorry she was gone, but he was neither critical nor admiring of her decision.  It was her decision, he said.  She lived life on her own terms.

The interviewer observed that it was highly unusual for people to be able to talk about death freely and deal with it with such directness.  The son noted that his mother spent time working on it, and it got easier.  They also discussed how unfortunate it was that our legal system makes it impossible for persons who choose the terms of their death to be with family at the end.

I found all this both unsettling and encouraging.  It would be good to be as comfortable with death as with other fundamental facts of human existence.  I’m certainly not there yet.  But it sounded like the mother, and to some extent the son, made it.

How can we eat animals?

Not eating animals is, for me, a matter of conscience.  It seems to me plain that unnecessarily killing sentient creatures for human consumption is wrong.  I’m very conscious that this is a minority view.   That’s being too kind: this is a fringy view.  I feel good — that is, both healthier and happier — about eating plants rather than animals.  But it’s not pleasant to take a stand on this that is at odds both with the majority of the community and with most of the people I care about and respect, and I would not do so if I saw a principled alternative.

Because the topic is a difficult one, I was heartened to see in today’s NY Times an opinion piece by Gary Steiner setting out the animal rights point of view._ Steiner is a professor of philosophy at Bucknell who’s written extensively on animal rights.   His basic argument is that animals possess inherent dignity, and that human desire cannot justify their slaughter.

Steiner has trouble explaining why most humans seem untroubled by this.  As he notes, the classic arguments that support treating human animals as privileged to cause unlimited suffering on other animals are embarrassingly weak.  It is difficult to square our general understanding of ourselves as beings embodying and constrained by morality with massive indifference to the pain of our fellow creatures.

Part of the answer is that the problem is at once overwhelming and easy to ignore.  According to Steiner, there are 53 billion animals slaughtered each year for human consumption, which is more than enough misery to inspire hopelessness.  There are also nested issues of economics and tradition. Humans have lots of other problems.  This week the NC press had stories about NC pork farmers going bankrupt, who were pleading for people to save them by eating more pigs.  It would be wrong to dismiss the plight of the farmers, but their voices at least get a hearing — unlike the pigs, who would undoubtedly prefer to live.  Steiner also alludes to the Thanksgiving turkeys who will be consumed this week recalling happy memories.  How could we give up such a joyful tradition?

The answer is, it isn’t really that hard, once the horror of the slaughter is brought into view.   There are many intractable problems of human society, but this one is not intractable.  It’s just difficult.

Celebrating completion of the Bilski brief with interesting drinks

Last week I finished and filed an amicus brief in the Supreme Court for Red Hat in the Bilski case.  The case concerns a difficult line drawing issue in patent law:  the line between a process that is patentable and one that is not.  The Red Hat brief argues that patents on software hinder innovation.   We challenge conventional wisdom on patents in a way that I hope is provocative.  Anyhow, I think it says some things worth saying.  Here is is:

Filing a Supreme Court brief feels a bit different from other projects.  There’s a sense of being a participant in history, of possibly leaving a footprint in the sands of time.  It took a lot of effort to get the thing done, and most of that effort had to be exerted in addition to my normal work routine.  In the end, it happened mostly at night and on weekends.

Sal and I celebrated last night by doing a neighborhood pub crawl and dinner.  We started at Foundation, a tiny, downstairs bar on Fayetteville Street that features handcrafted martinis and has nothing but American ingredients.  There appeared to be at least three dozen types of bourbon, of which Sal tried one.  I tried a cocktail involving moonshine and sparkling wine.  It sounded more interesting than it actually was, but it was worth a try.  We had dinner at Dos Taquitos, where we had fantastic pure agave margaritas.  Afterwards, we stopped by the Busy Bee, where the crowd was mostly young and hip.  Then we walked over to Glenwood and went in Amras.

We were surprised to find an older crowd there, and a band playing hits of the 70s.  It was good to see people with more gray hair who were still having some fun.  Some even danced.  The crowd as Busy Bee was, of course, more attractive, as young people usually are.