Friday, February 26, 2010
"There can be no denying the public benefit, both for the city of Philadelphia and the general public, of opening the collection to a wider audience"
Mark Lamster in The Architect's Newspaper: "Argott fails to engage or even acknowledge the two central questions the Barnes controversy (and his film) raises. First, why should reasonable people be forced to live with the intransigent intentions of a man who’s been dead for half a century? And second, might the Barnes collection actually be better off in a purpose-built museum in downtown Philadelphia, where it will be far more accessible to the general public, and a boon to that city’s teetering economy."
"Less a doc than a polemic"
Philadelphia Weekly: "[Argott] pushes his argument too hard—so absurdly hard, in fact, that the only sane response is to think it’s not really THAT big a deal. . . . [O]ne of the opening sound bites charges that the Barnes move is 'the biggest act of cultural vandalism since World War II.' Seriously? Barring a miracle, the collection will move 4.2 miles, into a building that will retain its owner’s eccentric layout .... THIS is tantamount to the Rape of Europa? ... The Art of the Steal is riddled with such hyperbole and fuzzy reasoning, and each instance pops yet another tiny hole in the collective argument. No one addresses the pros of the move—that more people would be able to see, say, Matisse’s Le bonheur de vivre, or that it would bring mucho tourism dollars to a city so cash-strapped it nearly closed its libraries. Such are the limitations of the polemic, which like its close cousin, propaganda, aims for the heart first and the head a distant second."
"Is it really 'a tragedy' that lots more people will get to see these paintings?"
Kyle Smith: "This documentary relies heavily on an echo chamber of art writers and teachers, all of whom are outraged by the proposed move, but their ad hominem snark ... and use of derision like calling the new museum 'McBarnes' are more revealing than the filmmakers suspect. The same neighbors are shown first complaining that the Barnes collection draws too much street parking, then fighting the addition of a parking lot, then fighting yet again to keep the collection where it is, where few can see it. Maybe the gentry and art-world snobs are less interested in the details of Barnes' will than in preserving a fabulous secret garden, away from the grubby public."
Linkage
- Lawsuit over Warhol painting.
- Law & Order, art-style.
- "Few Canadians give to the arts."
- Art crime exhibit.
- "The Guardian's report confirms a number of frequently discussed issues related to stolen art and ransoms."
Indictment in Clementine Hunter Case
The (La.) Independent Weekly reports: "A federal grand jury indicted three people for selling counterfeit Clementine Hunter paintings. William Toye, 78, and Beryl Ann Toye, 68, both of Baton Rouge, and 62-year-old Robert E. Lucky Jr. of New Orleans were named in a four-count indictment that charges all three defendants with mail fraud and conspiracy to commit mail fraud, acting U.S. Attorney Bill Flanagan announced Thursday."
Background here.
Background here.
What if Barnes's Will called for one work to be deaccessioned every year on his birthday?
The Art Market Monitor:
"Many of the outraged opponents of the Barnes move point to his wishes. Call it donor intent. Any sensible construction of the idea of art as a public trust ... should find Barnes’s dictatorial constraints over the art long after his own death ... to be in conflict with the interests of the public."
"Many of the outraged opponents of the Barnes move point to his wishes. Call it donor intent. Any sensible construction of the idea of art as a public trust ... should find Barnes’s dictatorial constraints over the art long after his own death ... to be in conflict with the interests of the public."
"The distortions start with the film's title"
Lee Rosenbaum posts part one of her review of "The Art of the Steal." Some highlights:
- "No Barnes masterpieces have been 'stolen' ... There was no 'heist.' ... This intrastate transport of masterpieces is surely not 'the greatest act of cultural vandalism since World War II.'"
- "Perhaps the best metaphor for what happened to the Barnes is 'takeover': The institution fell into stronger hands after being seriously vitiated by mismanagement and further endangered by the then-hostile neighbors who, paradoxically, are now leading the charge to keep it in Merion."
- "Argott disingenuously told Eric Kohn of the Wall Street Journal that he 'went into this with a blank slate,' when in fact he received his assignment from executive producer Lenny Feinberg, a ... former Barnes Foundation student, who made it clear during the post-screening discussion on stage at the New York Film Festival that he was always intent on an exposé."
- "The strangest gaffe is the film's heavy reliance on Mark Schwartz for elucidiation of the legal case. Schwartz is identified in the film as an attorney for Montgomery County and the Friends of the Barnes. Unmentioned in the film (and perhaps unknown to Argott) is that both the County and the Friends got Schwartz off the case early---a result of various missteps (including arguments in court that provoked the judge to admonish him), as well as a payment dispute."
Thursday, February 25, 2010
Not So Easy (UPDATE)
I went back and forth this summer with Peter Friedman over the Gaylord postage stamp fair use case. I said it was good example of the unpredictability of fair use decisions. Friedman said that was "ridiculous." Gaylord, he maintained, was an "easy case" of fair use.
Today the Federal Circuit ruled in the case: no fair use.
You can read the decision here.
UPDATED: Friedman reacts to the decision here.
Today the Federal Circuit ruled in the case: no fair use.
You can read the decision here.
UPDATED: Friedman reacts to the decision here.
More "Art of the Steal" Reviews
The New York Times:
"As its title suggests, 'The Art of the Steal' is nothing if not agenda-driven, having been paid for by a former foundation student, Lenny Feinberg, who — to quote the movie’s notes — 'initiated, funded and was intimately involved in the making of The Art of the Steal.’ . . . But while its bias enlivens the movie ... it eventually also weakens it. . . . That’s too bad because surely there are more nuanced arguments for the move than those found here, which could only strengthen the documentary, saving it from caricature. At times the fight comes across as a smackdown between art snobs who want to preserve Barnes’s right to exhibit his masterworks however he wanted because, well, he paid for them (a curiously underexamined refrain), and vulgarians who want to turn his patrimony into tourist bait .... What remains unanswered, finally, is the larger question of whether deep pockets ensure custodial rights forever."
The Philadelphia Inquirer:
"[A]s a narrative of the facts, it is as one-sided as a plaintiff's brief. Argott simplifies the institution's convoluted, colorful history into stark black and white, smearing villains and cheering heroes. . . . The bad guys are a shadowy 'cabal' of Philadelphia foundations ... conspiring to break Barnes' will and abduct his babies in order to exploit them purely for touristic purposes. The good guys are the Friends of the Barnes, a group that seeks to preserve the collector's babies as he intended, in the villa especially built for them. One would not know from the movie that the so-called bad guys' plan would keep the foundation's holdings intact, maintain its educational mission, and bring Barnes' underknown collection to a greater number of people. . . .
"[T]he second time Drexel professor Robert Zaller, a Friend of the Barnes, is heard insisting that the proposed move downtown is 'the greatest act of cultural vandalism since World War II,' you think: Really? Then the hard question emerges, not from the screen, but in the viewer's mind: Does moving this chronically underfunded collection from its suburban enclave, where there is limited visitor access, to an urban center where it will have a solid endowment and greater public access, constitute vandalism? This viewer answers no: not vandalism. Pragmatism, perhaps, but not vandalism. Rather than tell the whole story of how the Barnes move came about - a Dickensian saga of bad financial planning, worse management, endless lawsuits, and meddling NIMBYs - Argott's talking heads spin a unified conspiracy theory of how Philadelphia money and institutions always had it in for Barnes."
"As its title suggests, 'The Art of the Steal' is nothing if not agenda-driven, having been paid for by a former foundation student, Lenny Feinberg, who — to quote the movie’s notes — 'initiated, funded and was intimately involved in the making of The Art of the Steal.’ . . . But while its bias enlivens the movie ... it eventually also weakens it. . . . That’s too bad because surely there are more nuanced arguments for the move than those found here, which could only strengthen the documentary, saving it from caricature. At times the fight comes across as a smackdown between art snobs who want to preserve Barnes’s right to exhibit his masterworks however he wanted because, well, he paid for them (a curiously underexamined refrain), and vulgarians who want to turn his patrimony into tourist bait .... What remains unanswered, finally, is the larger question of whether deep pockets ensure custodial rights forever."
The Philadelphia Inquirer:
"[A]s a narrative of the facts, it is as one-sided as a plaintiff's brief. Argott simplifies the institution's convoluted, colorful history into stark black and white, smearing villains and cheering heroes. . . . The bad guys are a shadowy 'cabal' of Philadelphia foundations ... conspiring to break Barnes' will and abduct his babies in order to exploit them purely for touristic purposes. The good guys are the Friends of the Barnes, a group that seeks to preserve the collector's babies as he intended, in the villa especially built for them. One would not know from the movie that the so-called bad guys' plan would keep the foundation's holdings intact, maintain its educational mission, and bring Barnes' underknown collection to a greater number of people. . . .
"[T]he second time Drexel professor Robert Zaller, a Friend of the Barnes, is heard insisting that the proposed move downtown is 'the greatest act of cultural vandalism since World War II,' you think: Really? Then the hard question emerges, not from the screen, but in the viewer's mind: Does moving this chronically underfunded collection from its suburban enclave, where there is limited visitor access, to an urban center where it will have a solid endowment and greater public access, constitute vandalism? This viewer answers no: not vandalism. Pragmatism, perhaps, but not vandalism. Rather than tell the whole story of how the Barnes move came about - a Dickensian saga of bad financial planning, worse management, endless lawsuits, and meddling NIMBYs - Argott's talking heads spin a unified conspiracy theory of how Philadelphia money and institutions always had it in for Barnes."
Wednesday, February 24, 2010
Not So Fast
I said yesterday that The Tennessean's report on the latest in the Fisk-O'Keeffe litigation -- under the headline "Door is left open for Fisk to sell Georgia O'Keeffe art," and complete with triumphant quotes from Fisk President Hazel O'Leary ("Those who wait long enough get good news") -- was a little premature.
Sure enough, today brings a very different headline: "Fisk deal to sell O'Keeffe art takes hit."
We learn that "the state attorney general is casting doubt on whether a sale could move forward as easily as Fisk officials had initially hoped." He issued a statement saying that "neither the university nor O'Keeffe's estate in New Mexico should be allowed to move the collection."
As I mentioned last summer, Fisk now has to prove that compliance with the terms of the gift has become "impossible or impracticable." The AG says that, "given Fisk's recent reaccreditation by the Southern Association of Colleges and Schools, the university can no longer argue that the sale of the Collection is necessary to its financial survival."
Sure enough, today brings a very different headline: "Fisk deal to sell O'Keeffe art takes hit."
We learn that "the state attorney general is casting doubt on whether a sale could move forward as easily as Fisk officials had initially hoped." He issued a statement saying that "neither the university nor O'Keeffe's estate in New Mexico should be allowed to move the collection."
As I mentioned last summer, Fisk now has to prove that compliance with the terms of the gift has become "impossible or impracticable." The AG says that, "given Fisk's recent reaccreditation by the Southern Association of Colleges and Schools, the university can no longer argue that the sale of the Collection is necessary to its financial survival."
Tuesday, February 23, 2010
Fisk Update
I think the headline on this story in The Tennessean ("Door is left open for Fisk to sell Georgia O'Keeffe art") is a little misleading. The Tennessee Supreme Court has declined to hear an appeal of the intermediate appellate court's decision tossing the O'Keeffe Museum from the suit on standing grounds. It seems to me that leaves things where they were when that decision came down this summer, namely:
"As the NYT reports, Fisk 'must still win permission in a lower court to sell an interest in the collection.' And as Lee Rosenbaum points out, they may have gotten the O'Keeffe Museum out of the way, but Tennessee Attorney General Robert Cooper still needs to be dealt with, and he is on record as strongly preferring a solution 'that would allow the Stieglitz Collection to remain in Nashville on a full-time basis.'"
Though, as I pointed out last summer, there is some language in that decision that would seem to support Fisk's plan to sell a share of the collection to the Crystal Bridges Museum.
"As the NYT reports, Fisk 'must still win permission in a lower court to sell an interest in the collection.' And as Lee Rosenbaum points out, they may have gotten the O'Keeffe Museum out of the way, but Tennessee Attorney General Robert Cooper still needs to be dealt with, and he is on record as strongly preferring a solution 'that would allow the Stieglitz Collection to remain in Nashville on a full-time basis.'"
Though, as I pointed out last summer, there is some language in that decision that would seem to support Fisk's plan to sell a share of the collection to the Crystal Bridges Museum.
Monday, February 22, 2010
"No one seeing 'The Art of the Steal' will be left wondering where the filmmakers’ sympathies are"
There was a good story in Sunday's New York Times on "The Art of the Steal," which opens Friday in New York. The key point is one I've made here several times: the movie is a polemic; don't go in expecting even a remotely balanced presentation.
It notes that the project came to the director, Don Argott, "through a former Barnes student named Lenny Feinberg"; that "the title itself ... makes clear what [the filmmakers'] think transpired behind the scenes"; that "some" might describe the film's style as "heavy-handed"; and that "some members of the museum world who have seen the film have ... taken sharp issue with many of Mr. Argott’s conclusions and with the style in which they are presented."
I think Linda Eaton, director of collections at the Winterthur Museum, sums it up nicely: "The film obviously had a message that didn’t reflect the complexities of the issues."
Be forewarned.
It notes that the project came to the director, Don Argott, "through a former Barnes student named Lenny Feinberg"; that "the title itself ... makes clear what [the filmmakers'] think transpired behind the scenes"; that "some" might describe the film's style as "heavy-handed"; and that "some members of the museum world who have seen the film have ... taken sharp issue with many of Mr. Argott’s conclusions and with the style in which they are presented."
I think Linda Eaton, director of collections at the Winterthur Museum, sums it up nicely: "The film obviously had a message that didn’t reflect the complexities of the issues."
Be forewarned.
More on the question of photographing public art
Peter Friedman has some thoughts on the public art copyright infringement lawsuit I mentioned a couple weeks ago here. He endorses the sentiment that "any scheme that involves paying to photograph seems antithetical to the public interest," and he also thinks the photograph at issue is a fair use "because [it] stands on its own as a creative work. [The photographer] has taken a work embedded in a sidewalk in front of a public building and made it into a beautiful image that evokes both dance and confusion in a world full of complicated instructions seemingly sending us in a myriad of different directions."
Justin Silverman of the Citizen Media Law Project (whose sentiment that paying to photograph is antithetical to the public interest Friedman endorses) has a more thorough analysis of the fair use issue, running through each of the four fair use factors that courts apply, and concluding that, "all in all, ... it's a hard call."
Turning back to the "public interest" question, though, I want to ask: what role does the fact that the work is public play in the analysis? Is it only antithetical to the public interest for artists who make public art to retain copyright to their work? What is it about public art that warrants keeping it "completely open to the public" (i.e., as lacking the same copyright protections that apply to other artworks)? Don't all the same issues regarding incentives to create apply in the case of public art? I just don't see the argument for treating Jack Mackie's sculpture here any differently than the way we treat any other work.
Justin Silverman of the Citizen Media Law Project (whose sentiment that paying to photograph is antithetical to the public interest Friedman endorses) has a more thorough analysis of the fair use issue, running through each of the four fair use factors that courts apply, and concluding that, "all in all, ... it's a hard call."
Turning back to the "public interest" question, though, I want to ask: what role does the fact that the work is public play in the analysis? Is it only antithetical to the public interest for artists who make public art to retain copyright to their work? What is it about public art that warrants keeping it "completely open to the public" (i.e., as lacking the same copyright protections that apply to other artworks)? Don't all the same issues regarding incentives to create apply in the case of public art? I just don't see the argument for treating Jack Mackie's sculpture here any differently than the way we treat any other work.
"Is title insurance a solution in search of a problem?"
At the Huffington Post, Daniel Grant takes a look at how art title insurance is faring. He points out that, when it first came on the market, "lawyers and those in the art trade heartily endorsed the concept" (well, not all of them), but now, "several years later, the opportunity to purchase artwork headache-free does not appear to have been picked up by many art collectors or dealers." He notes that the "policies are not inexpensive, costing between one and three percent of the value of the object, and the price is paid up-front, rather than in installments over the course of the policy." And he gets the following quote from Chubb's fine art manager: "the only people who want title insurance are the people who have an impediment to the title of something in their possession, and they are looking to transfer the risk to someone else."
I remain a skeptic.
I remain a skeptic.
Tradeoffs
The Boston Globe reports that "Brandeis University unveiled a series of cost-cutting proposals this afternoon that would eliminate about two dozen faculty positions, several undergraduate majors and graduate programs, and more than a dozen university-sponsored doctoral spots."
The proposals include "phasing out graduate degrees in anthropology, theater design and cultural production," and undergrads "will no longer be able to major in Italian studies and Hebrew, or minor in Yiddish, East European Jewish culture, and Internet studies."
So here's my question. If you knew that those jobs could be saved, and those academic programs kept intact, through the sale of a small number of artworks owned by the University, would you do it? Or is it more important that every single one of those works stays at Brandeis (rather than, say, another museum in Boston)? As I've said many times before (e.g.), what the "no deaccessioning for operating costs" rule does is prevent us from having to face those questions. It keeps us from having to think about the real-world costs of not selling. So again, it may be true that it's more important to have that 220th Eakins in storage than it is to have an anthropology department. But it seems to me that conclusion should have to be argued for, and not just assumed. (Brandeis philosophy professor -- and chair of the Future of the Rose Committee -- Jerry Samet made a similar point here.)
The proposals include "phasing out graduate degrees in anthropology, theater design and cultural production," and undergrads "will no longer be able to major in Italian studies and Hebrew, or minor in Yiddish, East European Jewish culture, and Internet studies."
So here's my question. If you knew that those jobs could be saved, and those academic programs kept intact, through the sale of a small number of artworks owned by the University, would you do it? Or is it more important that every single one of those works stays at Brandeis (rather than, say, another museum in Boston)? As I've said many times before (e.g.), what the "no deaccessioning for operating costs" rule does is prevent us from having to face those questions. It keeps us from having to think about the real-world costs of not selling. So again, it may be true that it's more important to have that 220th Eakins in storage than it is to have an anthropology department. But it seems to me that conclusion should have to be argued for, and not just assumed. (Brandeis philosophy professor -- and chair of the Future of the Rose Committee -- Jerry Samet made a similar point here.)
"Like an episode of 'Antiques Roadshow' gone horribly wrong"
The New York Post on a dispute over a $20,000 work by 18th century Scottish artist Sir Henry Raeburn.
"Why is copyright (suddenly) a hot topic for artists?"
Sergio Muñoz Sarmiento considers the question.
Next They'll Tackle the Nature of the Good
The Whitefish (Montana) Pilot: "Council looks at how to define 'artwork.'"
More on the Polaroid Sale
The Art Market Monitor poses some "unanswered Polaroid questions," citing A.D. Coleman's ongoing series of posts on the sale. (He's up to Update # 13.) Coleman links to a letter from the lawyer for the bankruptcy trustee, which says that two federal courts have "authoriz[ed] the sale of artwork free and clear of any and all liens, claims, encumbrances and interests of any kind whatsoever and the transfer of good, clear and marketable title," so I'm not sure where the (legal) controversy is.
Earlier post here.
Earlier post here.
"Will Expiration of Estate Tax Mean Less $ for Charity?"
The Nonprofit Law Prof Blog: "Uncertainty about the estate tax has caused all sorts of problems for estate planners and their wealthy clients. The estate tax expired at the end of 2010, but if Congress does nothing, the tax in 2011 will affect more people than it did in 2009. And Congress may do something - but no one knows what Congress will do and whether it will be retroactive. In addition to all the other planning problems this causes, charities are beginning to worry about a possible effect on charitable giving."
Virginia Government Furloughs: Mandatory Unpaid Vacation
Please, Gentlemen and Ladies of the General Assembly and Mr. Governor, if you are going to cut my pay, just cut my pay. You can give me extra vacation - you can even mandate it if you want. However, a slight cut every two weeks beats a forced furlough wherein I have a significant portion of my salary for that month disappeared and have to figure out how to pay my rent, gas, food, etc. with a weeks' pay missing.
I understand that packaging it as a furlough allows you to keep everyone's salary up and may actually be better for me in the longer term. Therefore, I suggest a reduction in salaries with a two year sunset provision and any bonuses or raises linked to what salary will be after the sunset law has passed.
I'm not really against your proposal. I hope it saves jobs. I just would like to see it implemented in a better form.
I understand that packaging it as a furlough allows you to keep everyone's salary up and may actually be better for me in the longer term. Therefore, I suggest a reduction in salaries with a two year sunset provision and any bonuses or raises linked to what salary will be after the sunset law has passed.
I'm not really against your proposal. I hope it saves jobs. I just would like to see it implemented in a better form.
In the News
1) Tennessee "lawmakers are considering reining in cities' use of traffic cameras, contending local officials and companies are more interested in making money off motorists' fines than promoting safety." NO! Say it ain't so! (Virginia experimented with these and decided that they cause more wrecks than they stop and did not allow them) However, there are dire warnings from the Tennessee attorney general that if the changes aren't "reasonable" the localities will violate the contracts they've made with private companies abdicating the localities' duty to enforce traffic laws. (and with that comment I guess I shan't travel to Tennessee any time soon)
2) One dead husband buried without a head. One dead husband dumped in a well. I think I'm seeing a pattern here.
3) The Boomers and their vices: marijuana use rising as they get older.
4) Even a two year old racist poem gets you federal attention if the subject is the President.
5) In Virginia we stop evaluating judges if it might become public, in Kentucky . . .
2) One dead husband buried without a head. One dead husband dumped in a well. I think I'm seeing a pattern here.
3) The Boomers and their vices: marijuana use rising as they get older.
4) Even a two year old racist poem gets you federal attention if the subject is the President.
5) In Virginia we stop evaluating judges if it might become public, in Kentucky . . .
Friday, February 19, 2010
The Castle Doctrine and Virginia
There are some basic rules that all lawyers learn in law school. First, there is a duty to retreat when faced with danger. Second, if the danger finds you in your house there is no duty to retreat, because the presumption is that you've retreated as far as any person should have to. Thus, the castle doctrine (a man's home is his castle) allows defense of habitation as an extension of defense of self. Of course every State has its own variations on these rules and Virginia looks like it's about to add some new wrinkles to its version.
History:
Virginia's common law has developed two types self defense which are in some ways broader and in other ways narrower than the castle doctrine. In "justifiable" self defense, a person is allowed to stand his ground anywhere, so long as he did not in any way provoke the aggression, and defend himself. In "excusable" self defense a person is somewhat at fault for the aggression and in this case he is required to retreat as far as safely possible before he can legally defend himself.1 This is further limited in that a person can only use "reasonable" force when attacked.2 Generally, this means that if the aggressor is using fists the defender can only use fists. It also means that there must be a threat to a person, not just property.
On top of all this is another line of cases which allow a landowner to order those illegally on his property to leave and if the trespasser does not leave to use "proper" force to expel the intruder from his land. However, this is limited in that the landowner is subject to a "breach of the peace in the outset" test. If there is such a breach the landowner may not continue to use force to expel the intruder. One case seems to say that this allows a property owner, who has given a prior warning to a trespasser on his chattels or realty, to threaten deadly force, but perhaps not to actually use it.3
General Assembly:
The Virginia House of Delegates has passed a bill which would enact a form of the Castle Doctrine over top of all this. It hasn't been considered by the Senate yet and who knows if it will pass and be signed into law and in what form it would finally appear. However, we do have the new statute as it would be if the bill was enacted in its current form:
This maintains the necessity of a threat against a person. There must be an overt act which makes the defender "reasonably believe" that a person is in "imminent danger of bodily injury." In this it might actually be more restrictive than normal justification self defense. Generally, in Virginia a person who attacks another with his hands is not presumed to mean to cause "injury"; instead, he is just imputed the intent to commit "harm." Of course, these are terms of art in Virginia law. Injury meaning serious internal physical damage (it's a "wound" if the skin is broken - see the post here). "Harm" doesn't seem to have been given a specific definition (at least not in cases I remember), but it has developed into a catch-all which could probably be defined as "pain, minor abrasions, and bruising."
The use of the term "injury" is a bit of untidy drafting; it really should say "wound or injury" to keep the courts from having to jump through interpretational hoops and avoid potentially confusing variant interpretations of terms of art as applied to different statutes.
Nevertheless, I doff my cap to the Delegates for drawing the line where they did. As written, the statute avoids the fairly common scenario of two Yahoos fighting in the front yard and the fight ranging into the residence. Since use of fists does not infer an intent toward bodily injury, the resident cannot legally shoot the other pugilist just because the fistfight crossed a doorway.
Level of Force Allowed:
What this statute clearly does is remove any restrictions that a "reasonable force" requirement might place upon a defender, once the requisite level of threat is reached. However, I'm not sure if this really accomplishes as much as it seems to. Anyone carrying a weapon which could cause bodily wound or injury would generally be presumed to be offering deadly force and therefore could be opposed with the same amount of force. As discussed above, an unarmed intruder wouldn't generally fall under this statute, because of the presumption that he is offering "harm", not "wound or injury." A physical attack can cross the line, but in that case the defender can already defend himself with deadly force under current law.
What This Statute Won't Do:
This statute is limited to the defense of people. It does not allow the use of deadly force in protection of property.
Additions Needed:
1) The language needs to be changed to say "bodily wound or injury."
2) I would like to see language put into it setting up certain presumptions:
a) "The victim of a rape is presumed to have a reasonable belief of danger to
life, even if the assailant is unarmed."
b) "If an intruder breaks into a dwelling after dark, the resident is presumed
to have a reasonable belief of imminent bodily wound or injury and may act
upon this belief without acting to verify or dispel it."
---------------
1 See Foote v. Commonwealth, SEP90, VaApp No. 0484-89-3.
2 See Diffendal v. Commonwealth, JUL89, VaApp No. 1224-87-3.
3 Alexander v. Commonwealth, JAN99, VaApp No. 2136-97-3.
Hat-tip to the Office's blog.
.
History:
Virginia's common law has developed two types self defense which are in some ways broader and in other ways narrower than the castle doctrine. In "justifiable" self defense, a person is allowed to stand his ground anywhere, so long as he did not in any way provoke the aggression, and defend himself. In "excusable" self defense a person is somewhat at fault for the aggression and in this case he is required to retreat as far as safely possible before he can legally defend himself.1 This is further limited in that a person can only use "reasonable" force when attacked.2 Generally, this means that if the aggressor is using fists the defender can only use fists. It also means that there must be a threat to a person, not just property.
On top of all this is another line of cases which allow a landowner to order those illegally on his property to leave and if the trespasser does not leave to use "proper" force to expel the intruder from his land. However, this is limited in that the landowner is subject to a "breach of the peace in the outset" test. If there is such a breach the landowner may not continue to use force to expel the intruder. One case seems to say that this allows a property owner, who has given a prior warning to a trespasser on his chattels or realty, to threaten deadly force, but perhaps not to actually use it.3
General Assembly:
The Virginia House of Delegates has passed a bill which would enact a form of the Castle Doctrine over top of all this. It hasn't been considered by the Senate yet and who knows if it will pass and be signed into law and in what form it would finally appear. However, we do have the new statute as it would be if the bill was enacted in its current form:
§ 18.2-91.1. Use of physical force, including deadly force, against an intruder; justified self-defense.Threat Level Required:
Any person who lawfully occupies a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when the other person has unlawfully entered the dwelling, having committed an overt act toward the occupant or another person in the dwelling, and the occupant reasonably believes he or another person in the dwelling is in imminent danger of bodily injury.
Any occupant of a dwelling using physical force, including deadly physical force, as provided in this section shall be immune from civil liability for injuries or death of the other person who has unlawfully entered the dwelling that results from the use of such force.
This maintains the necessity of a threat against a person. There must be an overt act which makes the defender "reasonably believe" that a person is in "imminent danger of bodily injury." In this it might actually be more restrictive than normal justification self defense. Generally, in Virginia a person who attacks another with his hands is not presumed to mean to cause "injury"; instead, he is just imputed the intent to commit "harm." Of course, these are terms of art in Virginia law. Injury meaning serious internal physical damage (it's a "wound" if the skin is broken - see the post here). "Harm" doesn't seem to have been given a specific definition (at least not in cases I remember), but it has developed into a catch-all which could probably be defined as "pain, minor abrasions, and bruising."
The use of the term "injury" is a bit of untidy drafting; it really should say "wound or injury" to keep the courts from having to jump through interpretational hoops and avoid potentially confusing variant interpretations of terms of art as applied to different statutes.
Nevertheless, I doff my cap to the Delegates for drawing the line where they did. As written, the statute avoids the fairly common scenario of two Yahoos fighting in the front yard and the fight ranging into the residence. Since use of fists does not infer an intent toward bodily injury, the resident cannot legally shoot the other pugilist just because the fistfight crossed a doorway.
Level of Force Allowed:
What this statute clearly does is remove any restrictions that a "reasonable force" requirement might place upon a defender, once the requisite level of threat is reached. However, I'm not sure if this really accomplishes as much as it seems to. Anyone carrying a weapon which could cause bodily wound or injury would generally be presumed to be offering deadly force and therefore could be opposed with the same amount of force. As discussed above, an unarmed intruder wouldn't generally fall under this statute, because of the presumption that he is offering "harm", not "wound or injury." A physical attack can cross the line, but in that case the defender can already defend himself with deadly force under current law.
What This Statute Won't Do:
This statute is limited to the defense of people. It does not allow the use of deadly force in protection of property.
Additions Needed:
1) The language needs to be changed to say "bodily wound or injury."
2) I would like to see language put into it setting up certain presumptions:
a) "The victim of a rape is presumed to have a reasonable belief of danger to
life, even if the assailant is unarmed."
b) "If an intruder breaks into a dwelling after dark, the resident is presumed
to have a reasonable belief of imminent bodily wound or injury and may act
upon this belief without acting to verify or dispel it."
---------------
1 See Foote v. Commonwealth, SEP90, VaApp No. 0484-89-3.
2 See Diffendal v. Commonwealth, JUL89, VaApp No. 1224-87-3.
3 Alexander v. Commonwealth, JAN99, VaApp No. 2136-97-3.
Hat-tip to the Office's blog.
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Thursday, February 18, 2010
Karen Carolan to ADAA (UPDATED)
Josh Baer: "Karen Carolan who recently retired as director of the Office of Art Appraisals Services for the IRS and the chair of the Art Advisory Panel in Washington has now been [named] executive director of appraisal services for the Art Dealers Association of America (ADAA)."
UPDATE: More from Carol Vogel in the NYT.
UPDATE: More from Carol Vogel in the NYT.
In the News
1) A Christian con man.
2) A new pot replacement.
3) High school students have a right to comment on their teachers without punishment. What? They have 1st Amendment rights too?
4) Looks like the governor is trying to force me to take an unpaid vacation.
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2) A new pot replacement.
3) High school students have a right to comment on their teachers without punishment. What? They have 1st Amendment rights too?
4) Looks like the governor is trying to force me to take an unpaid vacation.
.
Wednesday, February 17, 2010
"[T]o point to the government's investigation of his own misconduct as grounds for a discovery extension...is truly the definition of chutzpah"
That's a quote from a recent brief from the AP, via this detailed update from Ben Sheffner on the Shepard Fairey criminal investigation.
"This is art given by people in the Central Valley for people in the Central Valley. It should stay in the Central Valley"
The Fresno Bee reports that "a local attorney is asking the state Attorney General's Office to investigate whether it is proper for the Fresno Metropolitan Museum to sell off its collection to satisfy its debts."
At this point, that's all it is: a request, by a private citizen, to investigate something. The requester's argument is basically the "public trust" argument: the museum, "in being granted nonprofit status, agreed that its assets were public and would be used for public purposes. If the museum ever dissolved, ... its assets should continue to be used for a public purpose. That would mean ... transferring the items to another public charity such as the Fresno Historical Society or the Fresno Art Museum."
Note that this argument would apply not just to the art, but to all the other assets of the museum -- computers, chairs, and holiday decorations.
More importantly, it's just not the case that being granted nonprofit status means you agree your "assets are public." Think of every church, hospital, private school, etc. Their assets do not "belong" to the public.
At this point, that's all it is: a request, by a private citizen, to investigate something. The requester's argument is basically the "public trust" argument: the museum, "in being granted nonprofit status, agreed that its assets were public and would be used for public purposes. If the museum ever dissolved, ... its assets should continue to be used for a public purpose. That would mean ... transferring the items to another public charity such as the Fresno Historical Society or the Fresno Art Museum."
Note that this argument would apply not just to the art, but to all the other assets of the museum -- computers, chairs, and holiday decorations.
More importantly, it's just not the case that being granted nonprofit status means you agree your "assets are public." Think of every church, hospital, private school, etc. Their assets do not "belong" to the public.
Tuesday, February 16, 2010
Kerr & Wagstaffe: The Final Word
Usually, I don't put this many posts into a subject like this, and I promise this is the last one, but I wanted to answer one more letter from the Leslie Brodie, the petitioner.
As to being from the Virginia-Kentucky border area, please note that I went out of my way to point that out in the first post. As well, I've never drank moonshine in my life, thank you. In any event, if you think that my argument is strongly informed by my life in the Appalachians, Sir, you mistake me. My argument is informed most strongly by my life prior to ever having moved to the mountains.
If I have to have diversity interaction bona fides, here they are. I grew up on the North Side of Lexington, Kentucky which was the wrong side of the tracks. I don't know the exact ethnic breakdowns of my elementary school and Junior High, but I know that Bryan Station High School had 40+% African-American. A couple years later I went off to the Army where 30% of the soldiers were African-American and about 8% were Hispanic. However, my experience was even more varied from the norm. Because I was in a linguistics unit I served with a greater mixture of Arab-Americans, Puerto Ricans, and Mexican Americans. There were also sizable groups of African-Americans, Native Americans, all sorts of Christians, Mormons, Jews, Muslims, and atheists. Among the most unique people I met were a Mithra worshipper, a Druid, and a Satanist. The Army is where I first learned that calling someone an "Asian" or "Hispanic" was likely to get you corrected: "I'm not a 'Hispanic', my family came from Argetina" (admittedly, as we were all soldiers this was usually said more, ahem, gruffly). This was also the first place I met Whites who seriously identified themselves as Irish-Americans or Italian-Americans. Furthermore, as a linguist, I was deployed to the Middle East twice and dealt with Egyptians, Kuwaitis, Saudis, and Bedouins. After leaving the Army and completing my schooling, I practiced as a defense attorney in Richmond, Virginia for about six years. Richmond proper has an African-American population of about 60% and in the Greater Richmond Area about 30%.
Personally, I find all the diversity stuff to be rubbish. I've had friends and colleagues over the years who were Black, Asian, Amerind, Jewish, Baptist, etc. Many of them have been smarter, more driven, and more successful than I have. I will not insult them by saying that they've gotten where they have because of the set they belong to. I also will not agree that, all things being equal, the choice between two hires should go to the one who's not White. No. that's laziness on the part of the hirer, a shoddy way to treat the White who is trying to compete fairly for a job, and insulting to the non-White. It says, "We fear that if we looked deeper you would not be competitive, so we're not going to look. Instead, we're going to hire you because we perceive you to be a member of X group." I stand pretty much where I perceive the Supreme Court to be: if purposeful racial-ethnic discrimination (understanding that mere correlation does not prove causation) can be shown there should be a remedy. Otherwise, let everyone compete on equal grounds.
Still, let's venture onto the field as you've presented it. In San Francisco proper 45% are non-Hispanic White, 31% are of various Asian ethnic groups, 13% are of various Hispanic ethnic groups, and 7% are African-American. In the Bay Area 58% are non-Hispanic White, 19% are of various Asian ethnic groups, 19% are of various Hispanic ethnic groups, and 8% are African-American.
So, let's look at the law firm before it undertook the hiring of the various ladies (which seems to be a more recent occurrence, quite possibly in an effort to diversify). At that time there were five "White" males and one "Asian" male. If we use the Bay Area Demographics (area demographic usually being a more accurate picture of who works in a city than city dweller demographics), there should have been one Asian-American at the firm and one Hispanic-American. Whites should be 3.5 of the firm members - let's round that up to four since half a person is a rather gruesome sight and would probably scare clients away. Basically, the firm was one person away from matching your diversity requirement and, while I am admittedly not a statistician, one person in a six person firm strikes me more of a statistical anomaly, rather than purposeful evil. Taking the same 6 person firm and applying the San Francisco proper demographics, the firm should have three Whites, two Asians, and one Hispanic. I suspect that even two Whites above the projected number is still a statistical anomaly for a group as small as six people, but I'll say that the firm was, by a plain application of flat demographics, short one Hispanic or Asian.
Next, let's overlay the percentages of these three ethnic groups with the percentages who go to law school. I've found figures which state that 3.8% of Whites go to law school and 1.9% of Hispanics. Since I couldn't find Asian figures, I took the national demographic of 13.4 million, added every single Asian 3L listed here from 1972 until now, and then used those two numbers to render a stat of .04% of Asian Americans going to law school (I know it's jury rigged, but it's the best I could put together off the top of my non-statistician head). So, assuming the only population being drawn from is San Francisco itself, there will be 14,459 White lawyers, 2,249 Hispanic lawyers, and 105 Asian lawyers. So, the actual population of lawyers breaks down to 85% White, 13% Hispanic, and .6% Asian. With these numbers, when the firm was 6 attorneys and had 1 Asian-American it was just about spot on as far as White members went (83% of firm - 85% of lawyer pool). On the other hand, one Asian in a 6 person firm is a massive overrepresentation. The 6th spot really should have gone to a Hispanic. Heck, even if we plug actual lawyer levels into the firm after it rose to ten people, 85% of a ten person firm is 8.5 people and therefore 9 people in the firm being White isn't a terrible misrepresentation of the actual community of lawyers.
You may not like the pool of available lawyers, but the ethnic breakdown of that pool is not the fault of the firm.
-------------
NOTE: I know there are all sorts of math and assumptive errors above. I was trying to present a thumbnail, not dig deeply into the numbers for absolute accuracy. I am particularly suspicious of the % I came up with for Asian-Americans going to law school, which I had thought might be lower, but never expected to be so low. And, yes, I know that there would be more lawyers than just the three groups talked about above. The exclusion was not meant as a slight, but to allow the model to be simple enough for my brain to wrap itself around.
---------------
If you want to narrow the field even further, you start asking how many in the lawyer application pool have graduated from Harvard Law or UM Ann Arbor, or at least a top ten law school? Three of the female hires you've pointed us all to have graduated from these schools. That must be an even smaller pool, whatever the ethnicity of the hire.
Look, as I've said, I don't believe in this kind of idiocy. Merit should be the reason for a hire and the only reason for a hire. In fact, I'm sure someone more schooled in statistics and/or with more accurate figures as to San Francisco and the Bay Area and/or who just wants to can turn my every statistical argument upside down to prove exactly the opposite of my point. This is why there are lies, damn lies, and statistics.
One reason the firm may have so many young female members is surge hiring. If, in a fit of PCdom the firm decided it needed female partners, it would hire enough associates that some of them would be expected to make partner. If the firm wanted two female partners and usually lost 50% of its associates without offering them partnerships, it would hire four. Thus, in an long term attempt to counteract perceived unPCness, it could - in the short term - open itself to criticism for its stilted hiring practices.
I don't know if this happened. All I do know is that the women who have been hired by the firm appear to be very qualified and any firm hiring them should be happy to have them.
I would like to thank you very much for taking the time to comment on the issues concerning racism/sexism in the legal profession. You are truly perceptive and sharp.As to the petition removal, it's possible the law firm arranged to have it taken down. However, there were also a lot of negative commentary on the petition and anyone who decided they wanted to could easily have looked at the terms of service and made a case that the petition should have been taken down under the content restrictions. In either event, while I disagreed with the petition, I also disagree with its deletion. Free speech, even if it is free speech I disagree with, should always be the default as long as it does not constitute a danger.
The petition which was posted on-line has been removed, and not by me. Any guesses? There is a good sense of fairness to your personality, so I am sure that you are offended by this development. Can you comment and expose it in your blog?
With the utmost respect to you and to the Commonwealth of Virginia, when you write about other parts of the country, you need to make it very clear that you are from the Appalachian Mountains. Now, why is it Ken? That we can make fun of the large amount of Mountain Dew you drink. No Serri, Bob.
The reason, Ken, is that people need to know you are from the border of Kentucky and Virginia is because the majority of the population there is white. I looked at the web-site of your employer, and everyone there is white. Is that a problem? Of course not.
It is a problem, though, when in a place like San Francisco, California nine out of ten lawyers are white, like it is the case with Kerr & Wagstaffe.
In Cal the white are a minority, and in SF, last I checked, whites are about 20%. In the SF legal arena diversity considerations are HUGE.
So a firm with nine out of ten lawyers who are white, with no blacks, no latinos, and no jews, will tend to draw attention to itself.
As to being from the Virginia-Kentucky border area, please note that I went out of my way to point that out in the first post. As well, I've never drank moonshine in my life, thank you. In any event, if you think that my argument is strongly informed by my life in the Appalachians, Sir, you mistake me. My argument is informed most strongly by my life prior to ever having moved to the mountains.
If I have to have diversity interaction bona fides, here they are. I grew up on the North Side of Lexington, Kentucky which was the wrong side of the tracks. I don't know the exact ethnic breakdowns of my elementary school and Junior High, but I know that Bryan Station High School had 40+% African-American. A couple years later I went off to the Army where 30% of the soldiers were African-American and about 8% were Hispanic. However, my experience was even more varied from the norm. Because I was in a linguistics unit I served with a greater mixture of Arab-Americans, Puerto Ricans, and Mexican Americans. There were also sizable groups of African-Americans, Native Americans, all sorts of Christians, Mormons, Jews, Muslims, and atheists. Among the most unique people I met were a Mithra worshipper, a Druid, and a Satanist. The Army is where I first learned that calling someone an "Asian" or "Hispanic" was likely to get you corrected: "I'm not a 'Hispanic', my family came from Argetina" (admittedly, as we were all soldiers this was usually said more, ahem, gruffly). This was also the first place I met Whites who seriously identified themselves as Irish-Americans or Italian-Americans. Furthermore, as a linguist, I was deployed to the Middle East twice and dealt with Egyptians, Kuwaitis, Saudis, and Bedouins. After leaving the Army and completing my schooling, I practiced as a defense attorney in Richmond, Virginia for about six years. Richmond proper has an African-American population of about 60% and in the Greater Richmond Area about 30%.
Personally, I find all the diversity stuff to be rubbish. I've had friends and colleagues over the years who were Black, Asian, Amerind, Jewish, Baptist, etc. Many of them have been smarter, more driven, and more successful than I have. I will not insult them by saying that they've gotten where they have because of the set they belong to. I also will not agree that, all things being equal, the choice between two hires should go to the one who's not White. No. that's laziness on the part of the hirer, a shoddy way to treat the White who is trying to compete fairly for a job, and insulting to the non-White. It says, "We fear that if we looked deeper you would not be competitive, so we're not going to look. Instead, we're going to hire you because we perceive you to be a member of X group." I stand pretty much where I perceive the Supreme Court to be: if purposeful racial-ethnic discrimination (understanding that mere correlation does not prove causation) can be shown there should be a remedy. Otherwise, let everyone compete on equal grounds.
Still, let's venture onto the field as you've presented it. In San Francisco proper 45% are non-Hispanic White, 31% are of various Asian ethnic groups, 13% are of various Hispanic ethnic groups, and 7% are African-American. In the Bay Area 58% are non-Hispanic White, 19% are of various Asian ethnic groups, 19% are of various Hispanic ethnic groups, and 8% are African-American.
So, let's look at the law firm before it undertook the hiring of the various ladies (which seems to be a more recent occurrence, quite possibly in an effort to diversify). At that time there were five "White" males and one "Asian" male. If we use the Bay Area Demographics (area demographic usually being a more accurate picture of who works in a city than city dweller demographics), there should have been one Asian-American at the firm and one Hispanic-American. Whites should be 3.5 of the firm members - let's round that up to four since half a person is a rather gruesome sight and would probably scare clients away. Basically, the firm was one person away from matching your diversity requirement and, while I am admittedly not a statistician, one person in a six person firm strikes me more of a statistical anomaly, rather than purposeful evil. Taking the same 6 person firm and applying the San Francisco proper demographics, the firm should have three Whites, two Asians, and one Hispanic. I suspect that even two Whites above the projected number is still a statistical anomaly for a group as small as six people, but I'll say that the firm was, by a plain application of flat demographics, short one Hispanic or Asian.
Next, let's overlay the percentages of these three ethnic groups with the percentages who go to law school. I've found figures which state that 3.8% of Whites go to law school and 1.9% of Hispanics. Since I couldn't find Asian figures, I took the national demographic of 13.4 million, added every single Asian 3L listed here from 1972 until now, and then used those two numbers to render a stat of .04% of Asian Americans going to law school (I know it's jury rigged, but it's the best I could put together off the top of my non-statistician head). So, assuming the only population being drawn from is San Francisco itself, there will be 14,459 White lawyers, 2,249 Hispanic lawyers, and 105 Asian lawyers. So, the actual population of lawyers breaks down to 85% White, 13% Hispanic, and .6% Asian. With these numbers, when the firm was 6 attorneys and had 1 Asian-American it was just about spot on as far as White members went (83% of firm - 85% of lawyer pool). On the other hand, one Asian in a 6 person firm is a massive overrepresentation. The 6th spot really should have gone to a Hispanic. Heck, even if we plug actual lawyer levels into the firm after it rose to ten people, 85% of a ten person firm is 8.5 people and therefore 9 people in the firm being White isn't a terrible misrepresentation of the actual community of lawyers.
You may not like the pool of available lawyers, but the ethnic breakdown of that pool is not the fault of the firm.
-------------
NOTE: I know there are all sorts of math and assumptive errors above. I was trying to present a thumbnail, not dig deeply into the numbers for absolute accuracy. I am particularly suspicious of the % I came up with for Asian-Americans going to law school, which I had thought might be lower, but never expected to be so low. And, yes, I know that there would be more lawyers than just the three groups talked about above. The exclusion was not meant as a slight, but to allow the model to be simple enough for my brain to wrap itself around.
---------------
If you want to narrow the field even further, you start asking how many in the lawyer application pool have graduated from Harvard Law or UM Ann Arbor, or at least a top ten law school? Three of the female hires you've pointed us all to have graduated from these schools. That must be an even smaller pool, whatever the ethnicity of the hire.
Look, as I've said, I don't believe in this kind of idiocy. Merit should be the reason for a hire and the only reason for a hire. In fact, I'm sure someone more schooled in statistics and/or with more accurate figures as to San Francisco and the Bay Area and/or who just wants to can turn my every statistical argument upside down to prove exactly the opposite of my point. This is why there are lies, damn lies, and statistics.
One reason the firm may have so many young female members is surge hiring. If, in a fit of PCdom the firm decided it needed female partners, it would hire enough associates that some of them would be expected to make partner. If the firm wanted two female partners and usually lost 50% of its associates without offering them partnerships, it would hire four. Thus, in an long term attempt to counteract perceived unPCness, it could - in the short term - open itself to criticism for its stilted hiring practices.
I don't know if this happened. All I do know is that the women who have been hired by the firm appear to be very qualified and any firm hiring them should be happy to have them.
"Fresno is simply too big to be left without local access to art for its citizens"
Judith Dobrzynski points out that another Fresno art museum may be on the brink.
She quotes a message from the director saying the museum is faced with "some very difficult decisions about the next season of exhibitions and educational programs," that they've "tightened [their] belts" and have "already made some critical decisions and adjustments" but are "still in a very vulnerable position."
She ends with the "hope [that] the community mobilizes in a way it did not for the Fresno Met." That would of course be great. But if only there was a way for the museum to weather the storm and stay afloat. If only it were the case that museums have a lot of stuff in their basements that they don't use and which could perhaps be used to raise some much needed cash. After all, you don't want to be caring for and conserving objects and collections that aren't central to your mission, especially in times of financial crisis.
Oh well. Let them fail.
She quotes a message from the director saying the museum is faced with "some very difficult decisions about the next season of exhibitions and educational programs," that they've "tightened [their] belts" and have "already made some critical decisions and adjustments" but are "still in a very vulnerable position."
She ends with the "hope [that] the community mobilizes in a way it did not for the Fresno Met." That would of course be great. But if only there was a way for the museum to weather the storm and stay afloat. If only it were the case that museums have a lot of stuff in their basements that they don't use and which could perhaps be used to raise some much needed cash. After all, you don't want to be caring for and conserving objects and collections that aren't central to your mission, especially in times of financial crisis.
Oh well. Let them fail.
Monday, February 15, 2010
Linkage
- What's happening at Brandeis?
- How to spot a fake Giacometti?
- Judge in Italy orders return of Getty Bronze.
Friday, February 12, 2010
Another VARA Decision (UPDATED)
Via Clancco, a VARA ruling out of the Fifth Circuit. Courthouse News Service summarized the facts:
"A Texas store owner and two local artists who transformed a wrecked Oldsmobile into a colorfully painted cactus planter with the message 'make love not war' were unable to convince the 5th Circuit that their expressive artwork transcends a city ban on junked cars."
The decision is here. The bulk of the discussion is of the First Amendment implications of the case, but there is a brief section on VARA. The district court had held that the ordinance in question "does not require the destruction of a junked vehicle, merely its screening from general public view." The Fifth Circuit added the following:
"The preliminary statutory issue ... is whether the car-planter qualifies as a 'work of visual art' under the VARA. The statute excludes 'any merchandising item or advertising, promotional, descriptive, covering, packaging material or container' from protection. 17 U.S.C. § 101. The district court found that the car-planters are closely associated with [the store], are part of the store's corporate image and culture, and are a distinctive symbol of the [the store's] business. These findings, which are not clearly erroneous, indicate that the carplanters are 'promotional' material and thus outside of the VARA's protection. For this reason as well as that of the district court, we affirm the conclusion that [plaintiffs] failed to state a claim for relief under VARA" (citation omitted).
UPDATE: Some thoughts from Ray Dowd at the Copyright Litigation Blog.
"A Texas store owner and two local artists who transformed a wrecked Oldsmobile into a colorfully painted cactus planter with the message 'make love not war' were unable to convince the 5th Circuit that their expressive artwork transcends a city ban on junked cars."
The decision is here. The bulk of the discussion is of the First Amendment implications of the case, but there is a brief section on VARA. The district court had held that the ordinance in question "does not require the destruction of a junked vehicle, merely its screening from general public view." The Fifth Circuit added the following:
"The preliminary statutory issue ... is whether the car-planter qualifies as a 'work of visual art' under the VARA. The statute excludes 'any merchandising item or advertising, promotional, descriptive, covering, packaging material or container' from protection. 17 U.S.C. § 101. The district court found that the car-planters are closely associated with [the store], are part of the store's corporate image and culture, and are a distinctive symbol of the [the store's] business. These findings, which are not clearly erroneous, indicate that the carplanters are 'promotional' material and thus outside of the VARA's protection. For this reason as well as that of the district court, we affirm the conclusion that [plaintiffs] failed to state a claim for relief under VARA" (citation omitted).
UPDATE: Some thoughts from Ray Dowd at the Copyright Litigation Blog.
"There’s really nothing like it in the history of photography. To sell it is criminal"
Earlier this week the NYT's Carol Vogel reported on the sale of the famed Polaroid photo collection:
"The company ... became a victim of the digital age, going bust first in 2001 and again in 2008. The second time, after it was bought by Petters Group Worldwide, Polaroid was caught up in a $3.65 billion Ponzi scheme run by the company’s founder .... To pay off creditors, a bankruptcy court in Minnesota is forcing Polaroid to sell a portion of its collection at Sotheby’s in New York on June 21 and 22. On offer will be 400 photographs by Ansel Adams alone, along with prints by [Chuck] Close, [William] Wegman, Robert Rauschenberg, David Hockney, Robert Frank, Robert Mapplethorpe, Warhol and Lucas Samaras. Together the 1,200 objects are expected to fetch $7.5 million to $11.5 million."
The Art Market Monitor asks: "Why is the Polaroid Collection being sold off in pieces? Is there no collector, museum or foundation that can afford the $7 to $11m the bankruptcy court would like Polaroid to raise for its creditors?"
Felix Salmon agrees: "The Sotheby’s sale constitutes the destruction of a lovingly-constructed artistic endeavor which was ultimately doomed by the greed and fraud engaged in by the chain of speculators and chancers who levered up and broke down the Polaroid company as though it were any other financial commodity. It’s a crying shame, and the art press should be railing against it, rather than talking it up as some kind of art-market milestone."
"The company ... became a victim of the digital age, going bust first in 2001 and again in 2008. The second time, after it was bought by Petters Group Worldwide, Polaroid was caught up in a $3.65 billion Ponzi scheme run by the company’s founder .... To pay off creditors, a bankruptcy court in Minnesota is forcing Polaroid to sell a portion of its collection at Sotheby’s in New York on June 21 and 22. On offer will be 400 photographs by Ansel Adams alone, along with prints by [Chuck] Close, [William] Wegman, Robert Rauschenberg, David Hockney, Robert Frank, Robert Mapplethorpe, Warhol and Lucas Samaras. Together the 1,200 objects are expected to fetch $7.5 million to $11.5 million."
The Art Market Monitor asks: "Why is the Polaroid Collection being sold off in pieces? Is there no collector, museum or foundation that can afford the $7 to $11m the bankruptcy court would like Polaroid to raise for its creditors?"
Felix Salmon agrees: "The Sotheby’s sale constitutes the destruction of a lovingly-constructed artistic endeavor which was ultimately doomed by the greed and fraud engaged in by the chain of speculators and chancers who levered up and broke down the Polaroid company as though it were any other financial commodity. It’s a crying shame, and the art press should be railing against it, rather than talking it up as some kind of art-market milestone."
A Lawyer Walks Into a Bar
Over the last few days, I've been watching a number of documentaries via Netflix/Roku. Generally, the filmer finds a topic which would be exhausted in 10 minutes and fills another hour and 20 minutes with panoramic pictures, man on the street interviews, skewed opinions, and gotcha shots. The biggest exception to all this has been "A Lawyer Walks into a Bar", which follows six people on their path to take the California Bar exam.
About three months prior to the exam, the documentary starts following 4 women and 2 men. First, it lets us know of California's low Bar passage rate (somewhere between 35-40%) and shows us several famous Californians who failed it more than once. Then we follow the lives of the 6 people preparing for the Bar.
The four women are all taking the Bar for the first time. There's Role-Reversal Woman. She's bright, driven and has a stay at home husband (well, significant guy-other). She's sacrificing time with her family in order to secure Bar passage and a job at a law firm. There's Geeky-Freaked Out Woman. She is alone and spending every second of every day cramming every little bit of legal information into her head that she can (interspersed with painting). There's Party Girl. She's obviously bright, but she just isn't going to put too much work into this. She parties, talks about her acting aspirations, and brags about not having done the take home assignments for BarBri. The final woman is Boot Strap Woman. She's older, has raised a kid, has a live in almost spouse. She never graduated high school. She got her GED, went to community college for two years, went to a university for two years, and then went to an unaccredited law school: the People's College of Law.
The two guys are both multiple fails. Young Guy has failed twice before. It's the first time in his life that he hasn't succeeded at something and he seems to be working through shock and disbelief. Old Guy has failed 41 times, but he's going to keep trying until he passes.
We follow them through their preparations. Role Reversal Woman is studying so hard she doesn't go to the hospital when her son is injured. Geeky Freaked Out Woman pushes herself to the point that she almost cracks and ends up going to hypnotherapist. Meanwhile, Party Girl is shown picking up some random guy at a bar. Old Guy gets a special tutor. Interwoven in all of this are little stories being told by various attorneys.
Next we come to the Bar exam dates. Here we see Boot Strap Women get stopped before she can even take the test because she hasn't taken the proper courses at People's College of Law. Then we get to watch the others as they go through the test. Young Guy looks like he's having a melt down. Geeky Freaked Out Woman is, predictably, burning the candle at both ends. Old Guy is yelling at the test site at night.
The only two who are confident are Role-Reversal Woman and Party Girl. RRW has it all together and exudes confidence. At one point RRW is talking about how the contract question was meant to sucker people into giving a UCC answer when there wasn't any real UCC issue. Then they cut to Party Girl who is confidently talking about the UCC answer she gave.
In the end, it all comes down to the day the Bar publishes the list of who passes on the internet. I'm not going to tell you who made it and who didn't (go watch it yourself). All I'm going to say is that if you fail the Bar California lets you know with a 3" high red "FAIL."
About three months prior to the exam, the documentary starts following 4 women and 2 men. First, it lets us know of California's low Bar passage rate (somewhere between 35-40%) and shows us several famous Californians who failed it more than once. Then we follow the lives of the 6 people preparing for the Bar.
The four women are all taking the Bar for the first time. There's Role-Reversal Woman. She's bright, driven and has a stay at home husband (well, significant guy-other). She's sacrificing time with her family in order to secure Bar passage and a job at a law firm. There's Geeky-Freaked Out Woman. She is alone and spending every second of every day cramming every little bit of legal information into her head that she can (interspersed with painting). There's Party Girl. She's obviously bright, but she just isn't going to put too much work into this. She parties, talks about her acting aspirations, and brags about not having done the take home assignments for BarBri. The final woman is Boot Strap Woman. She's older, has raised a kid, has a live in almost spouse. She never graduated high school. She got her GED, went to community college for two years, went to a university for two years, and then went to an unaccredited law school: the People's College of Law.
The two guys are both multiple fails. Young Guy has failed twice before. It's the first time in his life that he hasn't succeeded at something and he seems to be working through shock and disbelief. Old Guy has failed 41 times, but he's going to keep trying until he passes.
We follow them through their preparations. Role Reversal Woman is studying so hard she doesn't go to the hospital when her son is injured. Geeky Freaked Out Woman pushes herself to the point that she almost cracks and ends up going to hypnotherapist. Meanwhile, Party Girl is shown picking up some random guy at a bar. Old Guy gets a special tutor. Interwoven in all of this are little stories being told by various attorneys.
Next we come to the Bar exam dates. Here we see Boot Strap Women get stopped before she can even take the test because she hasn't taken the proper courses at People's College of Law. Then we get to watch the others as they go through the test. Young Guy looks like he's having a melt down. Geeky Freaked Out Woman is, predictably, burning the candle at both ends. Old Guy is yelling at the test site at night.
The only two who are confident are Role-Reversal Woman and Party Girl. RRW has it all together and exudes confidence. At one point RRW is talking about how the contract question was meant to sucker people into giving a UCC answer when there wasn't any real UCC issue. Then they cut to Party Girl who is confidently talking about the UCC answer she gave.
In the end, it all comes down to the day the Bar publishes the list of who passes on the internet. I'm not going to tell you who made it and who didn't (go watch it yourself). All I'm going to say is that if you fail the Bar California lets you know with a 3" high red "FAIL."
Thursday, February 11, 2010
Indicting Mother Nature
I've had all I canst stands. I canst stand no more. Time to exercise some of that prosecutorial power I'm supposed to possess.
VIRGINIA:
11 FEBRUARY 2010
Address: The Weather Channel
SSN: 000-00-0004
DOB: Creation
THE GRAND JURY CHARGES THAT:
COUNT 1:
On or about December 2009, in the County of Pitcairn, MOTHER NATURE did unlawfully and feloniously commit Damage Public Utilities. To wit, Mother Nature purposefully damaged power cables, tranformers and poles in an amount valued at more than $200. Damaging Public Utilities is a Class 4 felony punished under Virginia Code section 18.2-162 and it is punishable by imprisonment in a state correctional facility for not less than two nor more than ten years. This act was done against the peace and dignity of the Commonwealth of Virginia.
COUNT 2:
On or about 10 February 2010, in the County of Pitcairn, MOTHER NATURE did commit Obstruction of Justice. To wit, Mother Nature did intentionally, willfully, and unlawfully dump tons of snow on the roads of Pitcairn County. The snow did obstruct the judge and several prosecutors from making it to the courthouse, therefore keeping them from the performance of their duties. This is a violation of Virginia Code section 18.2-460 and it is punishable by confinement in jail for a period not exceeding twelve months or a fine not more than $2,500, either or both. This act was done against the peace and dignity of the Commonwealth of Virginia.
COUNT 3:
On or about 11 February 2010, in the County of Pitcairn, MOTHER NATURE did unlawfully and feloniously commit Petit Larceny. To wit, Mother Nature did intentionally, willfully, and unlawfully cause the weather to be so bad that court was cancelled on the day that the victim, Ken Lammers, had already been approved for vacation, thus permanently depriving Mr. Lammers of his vacation day (valued at less than $200). This is a violation of Virginia Code section 18.2-96 and it is punishable by a term of imprisonment of not more than 12 months and a fine of not more than $2,500, either or both. This act was done against the peace and dignity of the Commonwealth of Virginia.
A True Bill
/s/ Thomas Jefferson
______________________
Foreperson
.
INDICTMENT
VIRGINIA:
IN THE CIRCUIT COURT OF THE COUNTY OF PITCAIRN
THIRTY-FIFTH JUDICIAL CIRCUIT
THIRTY-FIFTH JUDICIAL CIRCUIT
11 FEBRUARY 2010
MOTHER NATURE
aka ASIAQ aka TAMAR aka MARI
aka FREYR aka LUONNOTAR aka JULUNGGUL
aka ASIAQ aka TAMAR aka MARI
aka FREYR aka LUONNOTAR aka JULUNGGUL
Address: The Weather Channel
SSN: 000-00-0004
DOB: Creation
THE GRAND JURY CHARGES THAT:
COUNT 1:
On or about December 2009, in the County of Pitcairn, MOTHER NATURE did unlawfully and feloniously commit Damage Public Utilities. To wit, Mother Nature purposefully damaged power cables, tranformers and poles in an amount valued at more than $200. Damaging Public Utilities is a Class 4 felony punished under Virginia Code section 18.2-162 and it is punishable by imprisonment in a state correctional facility for not less than two nor more than ten years. This act was done against the peace and dignity of the Commonwealth of Virginia.
COUNT 2:
On or about 10 February 2010, in the County of Pitcairn, MOTHER NATURE did commit Obstruction of Justice. To wit, Mother Nature did intentionally, willfully, and unlawfully dump tons of snow on the roads of Pitcairn County. The snow did obstruct the judge and several prosecutors from making it to the courthouse, therefore keeping them from the performance of their duties. This is a violation of Virginia Code section 18.2-460 and it is punishable by confinement in jail for a period not exceeding twelve months or a fine not more than $2,500, either or both. This act was done against the peace and dignity of the Commonwealth of Virginia.
COUNT 3:
On or about 11 February 2010, in the County of Pitcairn, MOTHER NATURE did unlawfully and feloniously commit Petit Larceny. To wit, Mother Nature did intentionally, willfully, and unlawfully cause the weather to be so bad that court was cancelled on the day that the victim, Ken Lammers, had already been approved for vacation, thus permanently depriving Mr. Lammers of his vacation day (valued at less than $200). This is a violation of Virginia Code section 18.2-96 and it is punishable by a term of imprisonment of not more than 12 months and a fine of not more than $2,500, either or both. This act was done against the peace and dignity of the Commonwealth of Virginia.
A True Bill
/s/ Thomas Jefferson
______________________
Foreperson
.
Wednesday, February 10, 2010
"We can’t have people bid at our auctions and disappear without paying"
Bloomberg: "Sotheby’s is suing two Chinese for payment on $270,300 worth of antiques they won at its Hong Kong sale in October 'to send a message it won’t stand for defaults,' said Asia chief executive Kevin Ching. ... The U.S.- based auction house is also pursuing another buyer who won five antique paintings and wouldn’t pay."
"When questioned specifically on the Mackie case, she commented that Mackie was simply protecting his copyrighted work from infringement" (UPDATED)
The Capitol Hill Seattle Blog has more on the public art copyright infringement lawsuit I mentioned earlier this week:
"We looked into the issue of whether it is common for public art administrators to allow commissioned artists to retain the copyright. Apparently, this varies by agency and by contract (so it would be possible for Seattle to negotiate to retain the right - they just do not). We questioned Ruri Yamplosky, the City of Seattle's Public Art Director about the reasons for having the artist retain the copyright. She noted that this is a generally accepted practice. When questioned specifically on the Mackie case, she commented that Mackie was simply protecting his copyrighted work from infringement."
As I mentioned in the earlier post, in my experience too the artist always retains the copyright.
UPDATE: Sergio says my experience is too narrow: "Some of the artists I meet and advise have in fact signed away their copyrights or unwillingly shared ownership of their copyrights. We have to remember that not all artists are lawyered up before being offered a commission. Many artists, particularly those in the early stages of their career, are so thrilled to be given an opportunity to make art and potentially be remunerated, that they will gladly sign and/or waive anything without seeking counsel."
"We looked into the issue of whether it is common for public art administrators to allow commissioned artists to retain the copyright. Apparently, this varies by agency and by contract (so it would be possible for Seattle to negotiate to retain the right - they just do not). We questioned Ruri Yamplosky, the City of Seattle's Public Art Director about the reasons for having the artist retain the copyright. She noted that this is a generally accepted practice. When questioned specifically on the Mackie case, she commented that Mackie was simply protecting his copyrighted work from infringement."
As I mentioned in the earlier post, in my experience too the artist always retains the copyright.
UPDATE: Sergio says my experience is too narrow: "Some of the artists I meet and advise have in fact signed away their copyrights or unwillingly shared ownership of their copyrights. We have to remember that not all artists are lawyered up before being offered a commission. Many artists, particularly those in the early stages of their career, are so thrilled to be given an opportunity to make art and potentially be remunerated, that they will gladly sign and/or waive anything without seeking counsel."
Tuesday, February 9, 2010
A Mathematical Approach to Art Forgery
NPR had a story today on Dartmouth math department chairman Daniel Rockmore, who "has developed a technique that is helping to determine the difference between excellent copy and the real McCoy."
Sergio Muñoz Sarmiento says: "Now if only he could use math to figure out the solution to our current deaccessioning problem!"
Sergio Muñoz Sarmiento says: "Now if only he could use math to figure out the solution to our current deaccessioning problem!"
Kerr & Wagstaffe, Part Deux
A couple days ago, I took up for a SanFran firm which was being targeted via email and an e-petition. Today, I got this email from the same person:
I'm not defending Mr. Wagstaffe in particular. I have no idea as to his personality, although I'm sure he is confident in himself. Most really good attorneys develop a sort of overbearing self-confidence. After all, if you're going to stand in front of judges or justices and tell them that they are wrong and what they are doing to your client is a travesty, you have to have a strong sense of confidence, purpose, and verity. As to being an extreme liberal,well, everyone has flaws . . . er, he does practice in San Francisco . . . ah, being a liberal doesn't mean you're evil (usually). I've had liberal friends and conservative *ahem* "not friends."
You seem to want to have your cake and eat it too. If he's an extreme liberal, he should be filling his firm with whatever would satisfy your petition, no matter the lack of quality. Instead, the associates all seem to be high quality.
I've also looked at Ms. Hogan's profile, as you asked. Yes, she is very attractive. However, she's also a Harvard Law grad and therefore presumptively very qualified. That's the second highest US News ranked law school and she's the second woman associated with the firm that has graduated from that institution. Another went to UM Ann Arbor (ranked 9th). Basically, unless you can show me that they've been rejecting Yale grads you're going to have a hard time convincing me that the firm isn't hiring for quality. The implication that the guys are hiring good looking women just so that they can leer at them all day doesn't stand up to scrutiny. I repeat, show me the proof that Yale grads (or at least other top ten law schools) have been getting turned away in droves - whatever their ethnic/racial/social group - and I'll have more sympathy for your inference.
Ken, your piece is fantastic. I enjoyed reading it.I'm glad you enjoyed reading the post. Always happy to have satisfied readers.
You should not defend Wagstaffe, he is a huge scum bag, egomaniacal and an extreme liberal to boot.
I forgot to mention an associate who used to work there by the name of Holly Hogan who also fit the profile.
You can see her at : link one and link two.
Do you see a pattern, or is it just me?
I'm not defending Mr. Wagstaffe in particular. I have no idea as to his personality, although I'm sure he is confident in himself. Most really good attorneys develop a sort of overbearing self-confidence. After all, if you're going to stand in front of judges or justices and tell them that they are wrong and what they are doing to your client is a travesty, you have to have a strong sense of confidence, purpose, and verity. As to being an extreme liberal,
You seem to want to have your cake and eat it too. If he's an extreme liberal, he should be filling his firm with whatever would satisfy your petition, no matter the lack of quality. Instead, the associates all seem to be high quality.
I've also looked at Ms. Hogan's profile, as you asked. Yes, she is very attractive. However, she's also a Harvard Law grad and therefore presumptively very qualified. That's the second highest US News ranked law school and she's the second woman associated with the firm that has graduated from that institution. Another went to UM Ann Arbor (ranked 9th). Basically, unless you can show me that they've been rejecting Yale grads you're going to have a hard time convincing me that the firm isn't hiring for quality. The implication that the guys are hiring good looking women just so that they can leer at them all day doesn't stand up to scrutiny. I repeat, show me the proof that Yale grads (or at least other top ten law schools) have been getting turned away in droves - whatever their ethnic/racial/social group - and I'll have more sympathy for your inference.
Monday, February 8, 2010
Park West Update
Georgina Adam has the latest in the Financial Times on the Park West gallery lawsuits. The Art Market Monitor comments:
"Adam reports that Park West sells 300,000 works of art each year generating as much as $450m. That’s a huge amount of art. It either explains the number of complaints against the firm–with so many customers there are bound to be some disputes–or mis-representing the value of art is a great business to be in."
"Adam reports that Park West sells 300,000 works of art each year generating as much as $450m. That’s a huge amount of art. It either explains the number of complaints against the firm–with so many customers there are bound to be some disputes–or mis-representing the value of art is a great business to be in."
Linkage
- The mafia informer and the stolen Caravaggio.
- Lawsuit over Basquiat painting.
- Guggenheim settles with Malevich heirs.
Going Back to Limited RSS Feed Footers
CrimLaw - http://crimlaw.blogspot.com
Sorry, Ladies & Gentlemen, but I'm going back to "short" rss feeds. I know it makes things less convenient for those of you using aggregators, but I just did a quick search around the interweb and it's gotten pretty obvious that a number of sites are just grabbing my content and publishing it. I wouldn't even be all that upset about it except that I don't even seem to be getting a link back to CrimLaw.
Sorry for the inconvenience.
[addendum] I stumbled over "footers" for the feed and am going to see if I can use it to attach my site's url rather than shortening the feed.
Sorry, Ladies & Gentlemen, but I'm going back to "short" rss feeds. I know it makes things less convenient for those of you using aggregators, but I just did a quick search around the interweb and it's gotten pretty obvious that a number of sites are just grabbing my content and publishing it. I wouldn't even be all that upset about it except that I don't even seem to be getting a link back to CrimLaw.
Sorry for the inconvenience.
[addendum] I stumbled over "footers" for the feed and am going to see if I can use it to attach my site's url rather than shortening the feed.
Kerr & Wagstaffe: Besmirched and Beslurred?
Since I've been posting on this blawg, I've gotten a lot of email press releases. Politicians, publishers, think tanks, and people who want the world to know about something that has piqued their ire all seem to think it to be important that I know certain things. So, I can't say I was surprised when I got another one on Saturday (and yet another on Sunday).
In faux neutral manner, it was a slap at a San Francisco law firm, Kerr & Wagstaffe, and one of its senior partners, James Wagstaffe, who is an adjunct professor at UC Hastings Law. Basically, the evil of this firm is that "out of the ten attorneys currently employed nine are "white", six out of the seven partners are males , and the only associates are young and attractive white females." Heaven forfend!
So, I first go off to check out the attorneys at the firm, if for no other reason than to get a look at the hot women. Sadly, while none of the women were bad looking, none of them were so drop dead gorgeous that I became instantly smitten and ran to my car and started driving to SanFran to pledge my undying love. As well, they all seem entirely too smart and qualified (University of Michigan Law School, Ann Arbor; magna cum laude, Harvard Law School; B.A. degree in Political Science from the Sofia University St. Kliment Ohridski in Bulgaria; 2 X UC Hastings Law). Gotta admit, with the implied "they were only hired because they are hotties" in the email, I was under the impression that they would have names like Trixie and Bubbles and be dressed in skimpy, tight fitting clothes. Instead, they're intimidating as all get out. I'm not sure I'd want to pit my poor besotted mind against any of them in a BS philosophy/political discussion at a party, much less face them in litigation.
So then I went on to check out the rest of the claim. Sure enough there's one female partner and one partner with a Chinese last name. Of course, if we assume he's Chinese, I guess we have to sort the others by names as well (4 English, 2 Scottish, 1 German, 1 French, & 1 Irish). Personally, I don't much go in for that kind of rubbish, so I'm going to assume they're all Americans. After all, if they ethnically identified the English and Irish would be shooting and bombing each other, and that doesn't make for a very productive law office. Just like the women, all the men seem very well qualified and experienced, although, admittedly, they weren't as easy on the eyes.
So, I decided to go look at the "electronic petition" mentioned in the email. Herein we are informed of such interesting "facts" as
And, of course, Asian lawyers couldn't possibly be hired because they have earned the job. Nope, they are only hired because they'll sit there and stay shut up. And if you think a competent lawyer is willing to hire an incompetent person to answer the phone, keep his schedule, and keep his paperwork flowing, just so he can say his office is diverse, you're an idiot. A brand new lawyer, of any ethnicity or creed, is liable to do less damage than a bad secretary any day.
As to the third point, of course law firms show off their ethnic hires. It is a sad thing that they do so and it is terribly wrong to do to the lawyer. However, if they don't they get fussed at for not having anyone of a particular set. It sucks, but if they don't show that they've hired people of different sets they are liable to have someone file an electronic petition against them.
As I write this, the petition has 13 whole "signatures", 4 of which call out the author and 1 of which is the author threatening a disagreeing signatory with sanction by the law school. It's the exchange between these two which clarified what's actually going on here. I had thought that this was a non-hire who was striking back at the firm, but apparently it's even more petty than that. This is about a bad grade which the author got from James Wagstaffe in a CivPro class. A BAD GRADE. A law firm, which by all appearances is filled with bright, capable people, is dragged through the mud over a grade. YOU'VE GOT TO BE KIDDING ME!
-----
[addendum] The person in control of the e-petition has removed the two "signatures", claiming that it pointed to the wrong person. So, maybe it is about not getting hired. In any event, to pick on a particular 10 person law firm in a city the size of SanFran fairly screams "I'll get you!" for whatever reason.
-----
BTW: The person who sent this to me did so through an Indian site "in.com". There wasn't even a Californian IP address attached to the email.
--------------
1) Before anyone graces me with a comment: I freely admit that I am a narrow minded, German-Catholic-Appalachian-Neanderthal-American who would be Center/Center Right where I now live (which means most SanFran citizens would probably see me as right of Moussolini) and just assume that I know I have all the evil prejudices and terrible traits that you are about to tell me I have. You don't have to waste your time typing all that into comments.
2) Yes, I realize that big firms tend to have monochromatic tendencies, although I think I've seen more BigLaw female lawyers than I've ever seen in CrimLaw / small firm circles. Still, a 10 person firm isn't BigLaw, and no matter who they hire a firm that size isn't going to ever get a correct demographic distribution. Note, for instance, that about 20% of the US is Germanic, but this firm only has one person with a Germanic name. Perhaps they should go out and hire another person of Germanic descent. In fact, if they desperately want to hire someone, anyone - no matter how unqualified he is - I'd be happy to take a $20k moving fee and guaranteed $250k a year for two years as my name is Germanic and my family is originally from Cincinnati, which is the most German city in the US.
[addendum] The law firm scrambled the order in which it presents its attorneys. Instead of being presented from senior to junior it's now a scramble with the top six faces including 3 females and the two most "non-white" males. See my paragraph above starting "As to the third point . . ."
[addendum] A comment noted that the name Ng is most likely Chinese rather than Vietnamese. I checked and this appears to be correct. The Vietnamese name would Ngo. Therefore, I have substituted Chinese for Vietnamese in the post above.
Links to Follow-up Posts:
Kerr & Wagstaffe, Part Deux
Kerr & Wagstaffe: The Final Word
Click on "CrimLaw" at top to go to main page.
In faux neutral manner, it was a slap at a San Francisco law firm, Kerr & Wagstaffe, and one of its senior partners, James Wagstaffe, who is an adjunct professor at UC Hastings Law. Basically, the evil of this firm is that "out of the ten attorneys currently employed nine are "white", six out of the seven partners are males , and the only associates are young and attractive white females." Heaven forfend!
So, I first go off to check out the attorneys at the firm, if for no other reason than to get a look at the hot women. Sadly, while none of the women were bad looking, none of them were so drop dead gorgeous that I became instantly smitten and ran to my car and started driving to SanFran to pledge my undying love. As well, they all seem entirely too smart and qualified (University of Michigan Law School, Ann Arbor; magna cum laude, Harvard Law School; B.A. degree in Political Science from the Sofia University St. Kliment Ohridski in Bulgaria; 2 X UC Hastings Law). Gotta admit, with the implied "they were only hired because they are hotties" in the email, I was under the impression that they would have names like Trixie and Bubbles and be dressed in skimpy, tight fitting clothes. Instead, they're intimidating as all get out. I'm not sure I'd want to pit my poor besotted mind against any of them in a BS philosophy/political discussion at a party, much less face them in litigation.
So then I went on to check out the rest of the claim. Sure enough there's one female partner and one partner with a Chinese last name. Of course, if we assume he's Chinese, I guess we have to sort the others by names as well (4 English, 2 Scottish, 1 German, 1 French, & 1 Irish). Personally, I don't much go in for that kind of rubbish, so I'm going to assume they're all Americans. After all, if they ethnically identified the English and Irish would be shooting and bombing each other, and that doesn't make for a very productive law office. Just like the women, all the men seem very well qualified and experienced, although, admittedly, they weren't as easy on the eyes.
So, I decided to go look at the "electronic petition" mentioned in the email. Herein we are informed of such interesting "facts" as
*Mediocre firms and solo practitioners are a hodgepodge of Whites, Asians, Jews, and some Latinos. Of the solo practitioners, a large percentage of them are Jews, as oppose to other minorities, who are not incline to practice solo.Wow. An anti-racist petition which spews racist stereotypes. Why exactly are ethnic groups other than Jewish "not incline to practice solo?" That's not been my experience. I've seen quite a few people of ethnic groups ranging from Black, to Filipino, to Melungeons practicing solo and doing quite well at it, thank you very much. And what's with the inverse of that statement? Why does being Jewish lead to a burning desire to have a solo practice?
* Most firms, with very few exceptions, will employ Asians, usually females, and usually as associates. Asian associates tend to be hired in larger numbers because they are being perceived as hard workers, subservient, and with a very little chance of causing troubles or rocking the boat, so to speak. Also, hiring an Asian tends to serve as an "insurance" against allegation of racism and lack of diversity. Likewise, employing minorities as staff such as secretaries, clerks, legal assistants and receptionists will serve to rebut allegation of racism and discrimination in case such a claim is made. It also serves as a way of convincing the hiring partner that that he is not a racist by creating diverse workplace, and a chance to do some good while he is doing very well, indeed.
*If one of those "white shoe" firms will have a minority partner, he/she will be displayed and advertised to the world in an aggressive fashion, and in various ways such as award ceremonies, media interviews, luncheons, symposiums, MCLE, etc. Morrison & Forrester, for example, has a Latino partner that with the help of the media is being heavily promoted. Do not be surprised if you will see his white colleagues parading him on Market St.
And, of course, Asian lawyers couldn't possibly be hired because they have earned the job. Nope, they are only hired because they'll sit there and stay shut up. And if you think a competent lawyer is willing to hire an incompetent person to answer the phone, keep his schedule, and keep his paperwork flowing, just so he can say his office is diverse, you're an idiot. A brand new lawyer, of any ethnicity or creed, is liable to do less damage than a bad secretary any day.
As to the third point, of course law firms show off their ethnic hires. It is a sad thing that they do so and it is terribly wrong to do to the lawyer. However, if they don't they get fussed at for not having anyone of a particular set. It sucks, but if they don't show that they've hired people of different sets they are liable to have someone file an electronic petition against them.
As I write this, the petition has 13 whole "signatures", 4 of which call out the author and 1 of which is the author threatening a disagreeing signatory with sanction by the law school. It's the exchange between these two which clarified what's actually going on here. I had thought that this was a non-hire who was striking back at the firm, but apparently it's even more petty than that. This is about a bad grade which the author got from James Wagstaffe in a CivPro class. A BAD GRADE. A law firm, which by all appearances is filled with bright, capable people, is dragged through the mud over a grade. YOU'VE GOT TO BE KIDDING ME!
-----
[addendum] The person in control of the e-petition has removed the two "signatures", claiming that it pointed to the wrong person. So, maybe it is about not getting hired. In any event, to pick on a particular 10 person law firm in a city the size of SanFran fairly screams "I'll get you!" for whatever reason.
-----
BTW: The person who sent this to me did so through an Indian site "in.com". There wasn't even a Californian IP address attached to the email.
--------------
1) Before anyone graces me with a comment: I freely admit that I am a narrow minded, German-Catholic-Appalachian-Neanderthal-American who would be Center/Center Right where I now live (which means most SanFran citizens would probably see me as right of Moussolini) and just assume that I know I have all the evil prejudices and terrible traits that you are about to tell me I have. You don't have to waste your time typing all that into comments.
2) Yes, I realize that big firms tend to have monochromatic tendencies, although I think I've seen more BigLaw female lawyers than I've ever seen in CrimLaw / small firm circles. Still, a 10 person firm isn't BigLaw, and no matter who they hire a firm that size isn't going to ever get a correct demographic distribution. Note, for instance, that about 20% of the US is Germanic, but this firm only has one person with a Germanic name. Perhaps they should go out and hire another person of Germanic descent. In fact, if they desperately want to hire someone, anyone - no matter how unqualified he is - I'd be happy to take a $20k moving fee and guaranteed $250k a year for two years as my name is Germanic and my family is originally from Cincinnati, which is the most German city in the US.
[addendum] The law firm scrambled the order in which it presents its attorneys. Instead of being presented from senior to junior it's now a scramble with the top six faces including 3 females and the two most "non-white" males. See my paragraph above starting "As to the third point . . ."
[addendum] A comment noted that the name Ng is most likely Chinese rather than Vietnamese. I checked and this appears to be correct. The Vietnamese name would Ngo. Therefore, I have substituted Chinese for Vietnamese in the post above.
Links to Follow-up Posts:
Kerr & Wagstaffe, Part Deux
Kerr & Wagstaffe: The Final Word
Click on "CrimLaw" at top to go to main page.
Sunday, February 7, 2010
Saturday, February 6, 2010
Public Art Infringement Suit
Jen Graves on a copyright infringement lawsuit by the creator of a public artwork in Seattle against a photographer who took a picture of the work and then listed it with a stock photo agency.
Sergio Muñoz Sarmiento offers some thoughts:
"One, it seems the piece was created 'more than 30 years ago,' so [the photographer] may want to look into the exact date of creation and publication and find out if these were before 1977, or between 1978 and March 1, 1989. There are certain copyright notice requirements that must be met in these two situations to ensure that the 'work' does not fall into the public domain. (see Peter Hirtle’s public domain chart.) Secondly, it seems that if some public funds were used to cover some of the sculpture’s costs, and as a policy matter, this raises an interesting issue as to whether or not public sculptural works which are partially or entirely funded with tax-payer money should also be considered a government work. ... Thirdly, it would be interesting to investigate whether or not there was a written agreement between [the artist] and the commissioning party and notice whether or not there was a transference or sharing of the copyright to the sculpture."
On the third point, I'd be surprised if that were true. Artists typically hold onto their copyrights in situations like this, at least in my experience. But I guess you never know.
Sergio Muñoz Sarmiento offers some thoughts:
"One, it seems the piece was created 'more than 30 years ago,' so [the photographer] may want to look into the exact date of creation and publication and find out if these were before 1977, or between 1978 and March 1, 1989. There are certain copyright notice requirements that must be met in these two situations to ensure that the 'work' does not fall into the public domain. (see Peter Hirtle’s public domain chart.) Secondly, it seems that if some public funds were used to cover some of the sculpture’s costs, and as a policy matter, this raises an interesting issue as to whether or not public sculptural works which are partially or entirely funded with tax-payer money should also be considered a government work. ... Thirdly, it would be interesting to investigate whether or not there was a written agreement between [the artist] and the commissioning party and notice whether or not there was a transference or sharing of the copyright to the sculpture."
On the third point, I'd be surprised if that were true. Artists typically hold onto their copyrights in situations like this, at least in my experience. But I guess you never know.
Friday, February 5, 2010
Thick Skin
If you're going to be in the legal field (or any working environment really), you're going to be need to learn to develop a thick skin. I talking to myself to here! I take myself too seriously at times. Being thin skinned doesn't look too great in the workplace. I came across this article about tips for developing a thick skin. Having a thick skin is also a trait that many leaders have to make it out there in this man-eat-man world.
OMG, How Long Can a Decision Be?
So, I'm breaking down all the cases from the last month to put them in Virginia Criminal Cases & Law and I think I'm pretty close to the end. I've only got two cases left to figure out and think that it'll probably take a couple hours.
Nope, the only case I got finished (this morning, no less) was Thomas v. Commonwealth. It's a 59 page opinion. 59 pages. It's not even an appeal from a death sentence, so I'm not sure how counsel got enough space to brief all the matters raised. As I took notes, I skipped over the sections where the Justice Lemons basically says "you didn't preserve that error" or "that's just too dumb to address" and I still ended up with this:
Thomas v. Commonwealth, JAN10, VaSC No. 090518: (1) Juvenile adjudications cannot be used as impeachment of general credibility. (2) Pending juvenile proceedings which may tend to show bias or motivation of a prosecution witness must be allowed during cross examination. (3) If a defense attorney seeks juvenile records he must identify bias or motivation to receive them. (4) A principal in the second degree is as culpable as a principal in the first degree. (5) A principal in the second degree need not be present during the actual commission of the crime. (6) A principal in the second degree need only (a) encourage, (b) incite, or (c) aid in the commission of the crime. (7) Presence at the commission of a crime, without disapproving or opposing it, is a factor which jurors may use to help them determine if the defendant was a principal in the second degree. (8) If two people are acting in concert to commit a wrongful act each party is responsible for the acts of the other which were not specifically planned, but which were the incidental probable consequences of the planned wrongful act. (9) When parties are acting in concert they are guilty of the acts of the others even if they did not intend them or anticipate they would occur. (10) Unless there is a specific indicted charge of accessory after the fact neither the prosecution or the defense is entitled to an accessory after the fact instruction because it is not a lesser included offense. (11) Jury instructions can tell the jury that they can infer malice from (a) a deliberate, willful and cruel act against another, or (b) the deliberate use of a deadly weapon. (12) The standard of review for refusing to allow a voir dire question is abuse of discretion. (13) Allowable voir dire questions necessarily disclose or clearly lead to disclosure of (a) relationship, (b) interest, (c) opinion, or (d) prejudice. (14) Voir dire questions which would generate answers which are speculative or irrelevant are too ambiguous and a trial judge does not have to allow them. (15) The standard of review for reviewing a judge's refusal to strike a juror is abuse of discretion. (16) In reviewing the refusal to strike a juror the appellate court will consider the entirety of questions asked to the juror, not just a single question. (17) Neither the prosecution nor the defense is allowed to ask questions in voir dire about the range of punishment which may be imposed if the defendant is convicted. (18) “You may infer that every person intends the natural and probable consequences of his acts.” is well established and oft upheld jury instruction and does not constitute a presumption. (19) Although guilt may be inferred from flight, the phrase “if a person leaves the place where a crime was committed” is overly broad and including it in a jury instruction is a misstatement of the law. (20) If the judicial instruction proffered by the defense has the same error as the one given the defense cannot claim error in the instruction given. (21) To have a private investigator appointed for an indigent defendant, the defense must show a particularized need by establishing that (a) the services of an expert would materially assist him in the preparation of his defense and (b) the denial of such services would result in a fundamentally unfair trial. (22) A particularized need must be more than a hope that favorable evidence will be found. (23) It is not error for a trial judge to allow the word murder to be used in a murder trial. (24) Photographs and videos of a crime scene are admissible to show (a) motive, (b) intent, (c) method, (d) malice, (e) premeditation, and (f) the atrociousness of the crime. (25) Accurate photographs of a crime scene are not rendered inadmissible solely because they are gruesome. (26) Photographs must be excluded if their prejudicial effect substantially outweighs their probative value.
Nope, the only case I got finished (this morning, no less) was Thomas v. Commonwealth. It's a 59 page opinion. 59 pages. It's not even an appeal from a death sentence, so I'm not sure how counsel got enough space to brief all the matters raised. As I took notes, I skipped over the sections where the Justice Lemons basically says "you didn't preserve that error" or "that's just too dumb to address" and I still ended up with this:
Thomas v. Commonwealth, JAN10, VaSC No. 090518: (1) Juvenile adjudications cannot be used as impeachment of general credibility. (2) Pending juvenile proceedings which may tend to show bias or motivation of a prosecution witness must be allowed during cross examination. (3) If a defense attorney seeks juvenile records he must identify bias or motivation to receive them. (4) A principal in the second degree is as culpable as a principal in the first degree. (5) A principal in the second degree need not be present during the actual commission of the crime. (6) A principal in the second degree need only (a) encourage, (b) incite, or (c) aid in the commission of the crime. (7) Presence at the commission of a crime, without disapproving or opposing it, is a factor which jurors may use to help them determine if the defendant was a principal in the second degree. (8) If two people are acting in concert to commit a wrongful act each party is responsible for the acts of the other which were not specifically planned, but which were the incidental probable consequences of the planned wrongful act. (9) When parties are acting in concert they are guilty of the acts of the others even if they did not intend them or anticipate they would occur. (10) Unless there is a specific indicted charge of accessory after the fact neither the prosecution or the defense is entitled to an accessory after the fact instruction because it is not a lesser included offense. (11) Jury instructions can tell the jury that they can infer malice from (a) a deliberate, willful and cruel act against another, or (b) the deliberate use of a deadly weapon. (12) The standard of review for refusing to allow a voir dire question is abuse of discretion. (13) Allowable voir dire questions necessarily disclose or clearly lead to disclosure of (a) relationship, (b) interest, (c) opinion, or (d) prejudice. (14) Voir dire questions which would generate answers which are speculative or irrelevant are too ambiguous and a trial judge does not have to allow them. (15) The standard of review for reviewing a judge's refusal to strike a juror is abuse of discretion. (16) In reviewing the refusal to strike a juror the appellate court will consider the entirety of questions asked to the juror, not just a single question. (17) Neither the prosecution nor the defense is allowed to ask questions in voir dire about the range of punishment which may be imposed if the defendant is convicted. (18) “You may infer that every person intends the natural and probable consequences of his acts.” is well established and oft upheld jury instruction and does not constitute a presumption. (19) Although guilt may be inferred from flight, the phrase “if a person leaves the place where a crime was committed” is overly broad and including it in a jury instruction is a misstatement of the law. (20) If the judicial instruction proffered by the defense has the same error as the one given the defense cannot claim error in the instruction given. (21) To have a private investigator appointed for an indigent defendant, the defense must show a particularized need by establishing that (a) the services of an expert would materially assist him in the preparation of his defense and (b) the denial of such services would result in a fundamentally unfair trial. (22) A particularized need must be more than a hope that favorable evidence will be found. (23) It is not error for a trial judge to allow the word murder to be used in a murder trial. (24) Photographs and videos of a crime scene are admissible to show (a) motive, (b) intent, (c) method, (d) malice, (e) premeditation, and (f) the atrociousness of the crime. (25) Accurate photographs of a crime scene are not rendered inadmissible solely because they are gruesome. (26) Photographs must be excluded if their prejudicial effect substantially outweighs their probative value.
Thursday, February 4, 2010
Wednesday, February 3, 2010
"As the recession forces more museums to cut staff and programs, and even consider closing, critics of this policy complain it’s hard to justify"
Time Out Chicago on an exhibition at DePaul University Art Museum that's about deaccessioning.
From the museum website:
"Most museums remove items from their collections from time to time, a process known as deaccessioning. As a rule it is done discreetly, yet the process is fascinating and the issues it raises are profound: how is quality determined? are canons of taste immutable? This exhibition spotlights the deaccessioning of objects from DePaul's collection, inviting scholars from art history, philosophy, and anthropology—and visitors—to weigh in on the works of art and their fate."
As the Time Out article points out, "the most common arguments for rules limiting deaccessioning hinge on museums’ duty to hold their collections in the public trust" (although some close observers of this debate have somehow managed never to have heard that argument). But then why is it okay for "most museums" to remove items from their collections "from time to time"?
From the museum website:
"Most museums remove items from their collections from time to time, a process known as deaccessioning. As a rule it is done discreetly, yet the process is fascinating and the issues it raises are profound: how is quality determined? are canons of taste immutable? This exhibition spotlights the deaccessioning of objects from DePaul's collection, inviting scholars from art history, philosophy, and anthropology—and visitors—to weigh in on the works of art and their fate."
As the Time Out article points out, "the most common arguments for rules limiting deaccessioning hinge on museums’ duty to hold their collections in the public trust" (although some close observers of this debate have somehow managed never to have heard that argument). But then why is it okay for "most museums" to remove items from their collections "from time to time"?
Tuesday, February 2, 2010
Magnum Sale
The NYT's Randy Kennedy reports that the Magnum photo agency has "quietly sold" its archive of more than 180,000 "press prints" ("the kind of prints once made by the collective to circulate to magazines and newspapers[; . . .] marked on their reverse sides with decades of historical impasto — stamps, stickers and writing chronicling their publication histories — that speaks to their role in helping to create the collective photo bank of modern culture") to MSD Capital, Michael Dell's private investment firm. MSD has agreed to deposit the collection with the Harry Ransom Center at the University of Texas at Austin "for study and exhibition, for at least the next five years." The purchase price was not disclosed, but supposedly the Ransom Center has insured the collection for more than $100 million.
The sale includes the prints only: "The image rights will be retained by [Magnum’s] photographers and their estates."
More here from Photo District News.
Linkage
- "FBI investigates fake Clementine Hunter paintings." Related post here.
- Should museums pay parking taxes?
- Controversy over "recently discovered" plaster casts of Degas sculptures.
- An art crime novel.
- An interview with a collector of The Uncollectable Artwork.
- The Ninth Circuit denied a rehearing in Von Saher v. The Norton Simon Museum, which was the subject of my most recent column in the Journal of Art Crime.
Don't Sleep With Your Client
The Virginia State Bar has made a spectacularly stupid idea officially unethical: you can no longer sleep with your client.
Monday, February 1, 2010
"People are afraid to discuss the very possibility"
In the wake of her NYT op-ed, Judith Dobrzynski discovers that deaccessioning is "the Third Rail of the museum world."
She also links to a radio show she did with Michael Rush, the former director of the Rose Art Museum, and you couldn't ask for a better example of the craziness of this whole conversation. The two museum guys (Rush and Charles Desmarais, deputy director of the Brooklyn Museum) spend the first part of the discussion going on and on about sacred cultural heritage and how works are held by museums in the public trust (Desmarais even compares them to your wedding ring, which you of course would never sell to pay the light bill). But then, towards the end of the program, when the conversation turns to deaccessioning to raise money to buy more art, they immediately shift into: "Oh well, that happens all the time, that's no big deal, etc."
Is there a secret pact among museum people to pretend that this BLATANT INCONSISTENCY isn't there?
She also links to a radio show she did with Michael Rush, the former director of the Rose Art Museum, and you couldn't ask for a better example of the craziness of this whole conversation. The two museum guys (Rush and Charles Desmarais, deputy director of the Brooklyn Museum) spend the first part of the discussion going on and on about sacred cultural heritage and how works are held by museums in the public trust (Desmarais even compares them to your wedding ring, which you of course would never sell to pay the light bill). But then, towards the end of the program, when the conversation turns to deaccessioning to raise money to buy more art, they immediately shift into: "Oh well, that happens all the time, that's no big deal, etc."
Is there a secret pact among museum people to pretend that this BLATANT INCONSISTENCY isn't there?
"White House goes after charitable deduction, again"
Politico's Ben Smith reports that the proposed tax change is back in this year's budget, but says: "expect the same fierce pushback to the write-off change -- and the same assumption on the Hill that it's dead on arrival -- as last year." More here from Mike Boehm of the LA Times.
A post from the last go-round here.
A post from the last go-round here.
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