I happen to be a big fan of Andrew Klavan, both as a playwright and, more recently, as a political thinker and philosopher of sorts.  My first introduction to Klavan was in the form of an article he write for the Wall Street Journal discussing the war on terror.  He is a brilliant communicator and possesses a sense of perspective I attribute solely to those who have experienced a true conversion or transformation — which, in his case, happened to be both religious and political.  (His interview with Peter Robinson seems to evidence this perspective quite convincingly, in my opinion)

In short, I have a great deal of respect for this man and usually walk away from his work feeling somewhat enlightened.  I say “usually” because I was initially somewhat disappointed with his recent video series he is doing at pajamastv.com titled “Klavan on the Culture”.

Click image to view video

Here is a makeshift (but reasonably accurate) transcript of the relevant portion I wish to discuss… wherein Klavan says:

“I’d like to explain the Liberal argument. SHUT UP.  ‘Shut up’ is the central rationale behind the leftist program… but even if the left can’t turn ’shut up’ into law… they’ve worked hard over the years to make it the custom of the country.  Its the essence of politically correct phraseology and university speech codes.  Say it our way or ’shut up’.  Its inherent in the media’s demonization of conservative commentators… the way they try to turn names like Limbaugh and Coulter into bywords for intolerance so they’ll just ’shut up’…

His basic point was that the left has a habit of using personal attacks and political correctness to tarnish the reputations of their political opponents than engage them in real debate.  The left tries to turn conservatism into a pariah of sorts… implying that any opposition to liberal policies is because of some underlying racist, bigoted, or sexist motive… in an attempt to shame them into silence.  In fact, we are seeing this right now with the nomination of Judge Sotomayor… you can’t turn on the TV without hearing a lecture about how improper it would be for Republicans to oppose the first female, Latina court nominee.

Now, it is not that I disagree with Klavan, but I was really disappointed in the way he made the point.  I was very skeptical and unimpressed with the simplistic explanation he offered… Liberals just say “SHUT UP” — as if most of them are mentally incapable of having a civilized discussion.  Not only does this not match my own personal experience but I find it to be unnecessarily contentious and, well, rude.  “This is simply an inaccurate description of the left,” I thought to myself.

But then something caught my eye on Facebook, of all places.  I discovered that a liberal aquaintance of mine… a quite pleasant and reasonable woman from all appearances, had joined a group that wants “Dick Cheney to shut the hell up” (it is currently 185,000 members strong… and growning… a quick search for similar anti-Pelosi groups turned up at most 100 people).  “This can’t really be what I think it is”, I thought to myself.  “Is this really a group on facebook?”  I was temporarily speechless.  And then it dawned on me… Maybe Klavan was on to something… Maybe he was telling the truth after all…

What do you all think?  Can you provide any current examples of this ‘SHUT UP’ mentality?  Feel free to support or criticize this post in the comments section… I’d be happy to argue!

Wow, I really wish I would have read a piece like this before going to lawschool.  I never looked at the law as an intrusion into religious and personal reality before.  Very interesting, albeit disturbing.

What is culture? Sometimes we use that word as the opposite of economics or law. Here I mean something very specific. Culture, as James Davison Hunter put it, is the power to name reality.

If you doubt that, think about divorce for a minute…

When the law actually endorsed unilateral divorce, it changed the terms of everybody’s marriage. Now the happily, romantically married may not notice this in practice. But not only the bad marriages, but the so-so marriages, the good-enough marriages were and are profoundly affected by the law — not only directly, but by the cultural changes in the public understanding of marriage that the law only partly caused and but certainly reinforced and institutionalized.

If you have a right to divorce at will, what you lose is the right to make an enduring marriage — at least if you live in consensual (shared) reality.

I can still hold the view that divorce is wrong — that I have no right to divorce because I made a vow to stay married. But with the advent of unilateral divorce, my views became a privatized view of marriage, not part of the shared reality defined by the law. We privatized this view of marriage precisely when the law privileged the progressive view of divorce.

Maybe you think this was a good change. I will not stop to argue the point now. What I’m trying to point to (for those geniuinely striving but challenged to understand my argument) is that the law mattered. And that the consequences of this legal change was not, in a simple sense, the expansion of liberty, but a change in power, driven in significant part by the cultural power of the law’s power to name reality…

So yes, if you follow the analogy to divorce, parents will still be able to teach their children their own views about what marriage is. But the law will be constantly repudiating that view in a number of public visible ways. Parents are having a very hard time fighting the progressive views of sexual culture, enshrined at law, in any number of ways. This will make it much harder.

When people say the “law is an educator,” that’s true, but it doesn’t go far enough. In this case, the law is an arbiter of reality: Who is really married? Who is really divorced? Who is having an out-of-wedlock child? Who, for that matter, is committing adultery?

The law’s power to name reality matters.

via The Amazing Power of The Culture (Part 3) – Maggie Gallagher – The Corner on National Review Online.

For those of you who are unaware, I recently got into a huge blog-fight with a friend of mine on her blog. Her post, entitled “Ban Books…..yeah….fu** you!!!” was essentially an expletive-laced, rant about how backwards and dangerous Sarah Palin is for ‘banning’ books from her local library. She concludes, in a moment of exasperation, “What century is this crazy as* bi*ch living in?”

Being the good friend that I am, I thought some illumination was necessary. I proceeded to explain to her that:

What’s wrong with certain books being banned by library staff anyway? Surely even YOU would ban certain books if you were a librarian… for example, I doubt you would get a hustler subscription for your local library…

Librarians MAKE EDITORIAL SELECTIONS TO THEIR BOOK CATALOG ALL THE TIME. That’s why you have any given book in your library is BECAUSE of a conscious choice to PUT IT THERE.

This obviously was not convincing enough for her as she proceeded to say:

What the hell do you mean? Please tell me which power enumerated in the Constitution of the US or in Alaska’s laws give that idiot that right to ban books… I’d love to see Sarah Palin even begin to comprehend a casebook, lmao!!! She can’t handle children’s books in the local library, without getting offended. What a simple minded fool.

Banning books, wanting to teach a non science like creationism in schools, knowing nothing about how the constitution or goverment works, time and time again showing that she thinks she can be the arbiter of values for people who have the right to choose those things for themselves, I consider that i huge fuc**ng issue.

But I guess that’s why I’m a libertarian Joel, I believe in freedom, and people’s right to choose for themselves, and not have some half wit poorly educated blow hard tell me what I can or can’t do.

I’m sure you are getting the picture here; my logic didn’t make a dent. But, being the good friend I am, I concluded I just hadn’t explained it clearly enough:

libraries are not protected by the first amendment you IDOT. People are. Go ahead… explain to me how the constitution prohibits taxpayers from voicing their opinions about how their tax dollars are spent… LIBRARIES do not have first amendment rights!!!!!

Freedom of expression isn’t at issue here. Local communities can decide what they want in their library and what they DON’T want. Why is Palin unable to voice her opinion about what is in her community’s libraries??? Why should HER OPINION about this be stifled? You want to talk about stifling… let’s talk about the assumption SHE CAN’T GIVE HER INPUT. This is Orwellian doublespeak here.

[T]his whole thing is basically an argument that non-religious people are better-suited to decide what we should be learning at our local library than religious people. This is al basically just an attack on Christians and christian beliefs…

This was about as much as I could take. After a few more exchanges of (mostly) personal attacks, I felt my time would be better spent on other things).

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I spent about 6 hours over the weekend and made some improvements to my mySQL based digital bookshelf. New menu, 3d appearance, and a touch of javascript make this a worthy update. Check it out!

Introduction 

It’s been a while since I posted on any LEGAL matter, and I must say it’s good to finally get around to the legal posts again.  Anyway, I’m not vouching for the LEGAL correctness of any of this… but I though I’d post the text of my final Copyright Exam just in case you were interested in Copyright as a general matter.  The exam was intended to be the analysis portion of a legal opinion discussing Google’s “book search” and the Copyright issues raised with Google’s scanning and indexing activities.

Let me know what you think?  I’d be interested to hear from law students and novices alike.  (Do I deserve and A?  

Update:  It turns out I DID get an ‘A’.   niiice. 

OVERVIEW

Google, an online search giant, is undertaking a project to catalogue and digitally index the contents of books in libraries across the country. To accomplish this project, each book added to the Google database must be scanned and the text converted into a digital format. Google then stores a graphical copy of the book as well as an indexed database of all words and phrases that is then searchable by the end user. For works in the public domain, Google allows users to access the work in its entirety. In the case of Copyrighted material, Google selects individual pages to be displayed in order for the user to preview the book before having the option to purchase or obtain the book by alternate means.

As a result of these activities, Publishers have sued Google for “massive” copyright infringement. They claim that the act of copying and indexing a Copyrighted work is itself an infringing activity and further assert that the opt-out policy is evidence of indifference to the rights of authors and publishers. Google asserts that the opt-out program removes them from Copyright liability and even if not, they are protected by the “fair use” doctrine.

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