Do you like being right? Of course, everyone does. Are you successful at convincing others? That’s a tougher one. We may politely disagree, avoid, or scream bloody murder at each other, but whatever our conflict style, no one is born, and few are raised, knowing how to persuade.
Persuasion does not mean coercion, deceit, or manipulation, the tactics of con artists, underhanded salespersons, or stereotypically untrustworthy lawyers….
Persuasion is about shifting others’ point of view, respectfully and charitably, through the use of evidence and argument, ethical appeals, moving stories, and “faith in the power of your ideas,” as Neal Katyal explains in his TED presentation above, “How to Win an Argument (at the U.S. Supreme Court, or anywhere).”
Katyal’s job as a Supreme Court litigator makes him an authority on this subject. It may also distract you with thoughts about the current Court power struggle. Try to put those thoughts aside. In places where reason, evidence, and ethics have purchase, Katyal’s advice can pay dividends in your quest to win others over.
In his first case before the Court a “handful of years” after the 9/11 attacks, he represented Osama bin Laden’s driver in a suit pressing to recognize Geneva Convention rules in the war on terror and to rule Guantanamo unconstitutional. His opponent, the Solicitor General of the U.S., had argued 35 cases before the court; “I wasn’t even 35 years old,” Katyal says. He won the case, and he’ll tell you how.
His most important lesson? Winning arguments isn’t about being right. It isn’t about believing really, really hard that you’re right. Persuasion is not about confidence, Katyal insists. It’s about empathy. Oral arguments in the courtroom (which judges could just as well read in transcript form) show us as much, he says.
When his legal expertise was not helping in preparation for the big trial, Katyal felt desperate and hired an acting coach, who trained him in such techniques as holding hands while making his arguments. What? Yes, that’s exactly what Katyal said. But he did it, and it worked.
Holding hands with the Justices isn’t an option in court, but Katyal found other ways to remind himself to stay close to what mattered, wearing accessories his parents had given him, for example, and writing his children’s names on a legal pad: “That’s why I’m doing this, for them. To leave the country better than I found it.”
Once he had established his private reasons for caring, he was ready to present his public reasons. As the old saying goes, “people don’t care how much you know, until they know how much you care.” The facts absolutely matter, yet the burden of showing how and why facts matter falls to the persuader, whose own passion, integrity, commitment, etc. will go a long way toward making an audience receptive.
This advice applies in any situation, but if you’re wondering how to move Katyal’s advice online…. well, maybe the ultimate lesson here is that we’re at our most persuasive when we’re close enough—physically or virtually—to take somebody’s hand….
When Helen Keller was only twelve years old, she stood accused of plagiarizing a short story. A tribunal acquitted her of the charges, but when her dear friend Mark Twain read about the incident years later, he strenuously protested, exclaiming in a 1903 letter, “the kernel, the soul—let us go further and say the substance, the bulk, the actual and valuable material of all human utterance—is plagiarism.”
Given the finite number of possible narratives, and combinations of phrases, words, and syllables, he’s got a point, though it wouldn’t hold up in court where the question of intent comes into play.
Litigious artists and their estates frequently sue other artists whose work is too close to what they claim as their own invention. Twain might say (his own copyrights aside) that the idea of inventing art from scratch is an “owlishly idiotic and grotesque” fantasy. He might say so, for example, of the recent legal decision that keeps Woody Guthrie’s “This Land is Your Land” a form of private property, despite its author’s desire for anyone and everyone to sing and record the song. (Guthrie’s daughter Nora claims she is protecting it from “evil forces” who would misuse it.)
If literature is mostly plagiarism, what about music? How is it possible to copyright melodies when they float through the cultural ether, appearing in similar forms in song after song around the world? What would have become of the blues, bluegrass, and nearly every form of traditional folk music from time immemorial had copyright law prevented unauthorized borrowings? These are questions judges and juries often ponder when faced with two similar sounding pieces of music.
In one recent case, for example, a jury found that pop star Katy Perry had “infringed upon the copyright of Flame, a Christian rapper who’d posted a song” with the same melody as her song “Dark Horse,” even though Perry “insisted that she’d never heard of the song or the rapper” as Alexis Madrigal writes at The Atlantic. “For some musicians, musicologists, and lawyers, the verdict felt scary; after all, large numbers of songs now live on SoundCloud and YouTube. It became thinkable to ask: Could the world run out of original melodies?”
This seems unlikely given the “functionally infinite possibilities” for melodies resulting from “all the notes and all the traditions of music around the world.” However, when it comes to Western pop music and the more limited parameters that govern its composition, the number reaches a more “comprehensible part of finitude.” Programmer, lawyer, and musician Damien Riehl and his fellow programmer and musician Noah Rubin decided to “brute force” their way out of the problem entirely, as Riehl tells Adam Neely above, using an algorithm that generated all of the melodies in the range they’d seen in copyright lawsuits.
By generating all possible melodies above the middle-C octave as MIDI files, the two artists hope to head off costly infringement litigation that can hobble creative freedom. Riehl explains the ingenious concept in the TEDx Minneapolis talk at the top of the post, beginning with the issue of “subconscious” copyright infringement that sometimes forces artists to pay out millions in damages, as happened to George Harrison when he was sued for plagiarizing “My Sweet Lord” from the Chiffons’ “He’s So Fine.”
Maybe what the law has not considered, says Riehl, is that “since the beginning of time, the number of melodies is remarkably finite.” Rather than inventing out of whole cloth, artists choose melodies from an already extant “melodic dataset” to which everyone potentially has mental access. Now, everyone could potentially have legal access. By committing melodic data to a “tangible format,” Samantha Cole reports at Vice, “it’s considered copyrighted.” Or as Riehl explains:
Under copyright law, numbers are facts, and under copyright law, facts either have thin copyright, almost no copyright, or no copyright at all. So maybe if these numbers have existed since the beginning of time and we’re just plucking them out, maybe melodies are just math, which is just facts, which is not copyrightable.
Riehl and Rubin have released their billions of melodies under a Creative Commons Zero license, meaning they have “no rights reserved” and are similar to public domain. Available as open-source downloads on Github and the Internet Archive, along with the code for the algorithm the artists used to make them, the dataset might actually have sidestepped the problem of musical copyright infringement with technology, though whether the law, writes Cole, with its “complicated and often nonsensical” application, will agree is another issue entirely.
Even those of us who remember singing along as children may experience some shock that these facts check out on Snopes.
CREDIT CARDS: Prior to the Equal Credit Opportunity Act of 1974, married women couldn’t get credit cards without their husbands’ signatures. Single women, divorcees, and widows were often required to have a man cosign. The double standard also meant female applicants were frequently issued card limits up to 50% lower than that of males who earned identical wages.
PREGNANT WORKERS: The Pregnancy Discrimination Act of 1978 protected pregnant women from being fired because of their impending maternity. But it came with a major loophole that’s still in need of closing. The language of the 41-year-old law stipulates that the employers must accommodate pregnant workers only if concessions are being made for other employees who are “similar in their ability or inability to work.”
MILITARY COMBAT: In 2013, former Secretary of Defense Leon Panetta and former Chairman of the Joint Chiefs of Staff, General Martin Dempsey announced that the Pentagon was rescinding the direct combat exclusion rule that barred women from serving in artillery, armor, infantry and other such battle roles. At the time of the announcement, the military had already seen more than 130 female soldiers killed, and 800 wounded on the frontlines in Iraq and Afghanistan.
HEALTH INSURANCE: In 2010, the Patient Protection and Affordable Care Act decreed that any health insurance plan established after March of that year could not charge women higher premiums than men for identical benefits. This was bad news for women who got their health insurance through their jobs, and whose employers were grandfathered into discriminatory plans established prior to 2010. Of course, that’s all ancient history now.
CONTRACEPTIVES: In 1972, the Supreme Court made it legal for all citizens to possess birth control, irrespective of marital status, stating “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” (It’s worth noting, however, that in 1972, states could still constitutionally prohibit and punish sex outside of marriage.)
There was a time—a strange time in pop culture history, I’ll grant—when legal dramas were everywhere in television, popular fiction, and film. Next to the barn-burning courtroom set pieces in A Few Good Men and A Time to Kill, for example, scenes of lawyers poring over case law with loosened ties, high heels kicked off, and martinis and scotches in hand were rendered with maximum dramatic tension, despite the fact that case law is a nigh unreadable jumble of jargon, citations, archaic diction and syntax, etc… anything but brimming with cinematic potential.
Do law students and legal scholars disagree with this assessment? It’s beside the point, many might say. The centuries-old web of case law—reinforcing, contradicting, overturning, creating patterns and structures—is the very stuff the law is made of.
It’s a referential tradition, and when most of the documents are in the hands of only a few people, only those people understand why the law works the way it does. The rest of us are left to wonder why the legal system is so Byzantine and incomprehensible. Real life rarely has the clarity of a satisfying courtroom drama.
Last year, The Harvard Crimson reported a seemingly revolutionary shift in that dynamic, when Harvard Law’s Caselaw Access Project “digitized more than 40 million pages of U.S. state, federal, and territorial case law documents from the Law School library,” dating back to 1658. The Crimson issued one caveat: the full database is accessible to the public, but “users are limited to five hundred full case texts per day.” Plan your intense, scotch-soaked all-nighters accordingly.
Is this altruism, civic duty, a move in the right direction of freeing publicly funded research for public use? Several Harvard Law faculty have said as much. “Case law is the product of public resources poured into our court system,” writes Professor I. Glenn Cohen. “It’s great that the public will now have better access to it.” It is indeed, Professor Christopher T. Bavitz says: “If we want to ensure that people have access to justice, that means that we have to ensure that they have access to cases. The text of cases is the law.”
The law is not a set of abstract principles, theories, or rules, in other words, but a series of historical examples, woven together into a social narrative. Machines can analyze data from The Caselaw Access Project far faster and more efficiently than any human, giving us broader views of legal history and precedent, and greatly expanding public understanding of the system. Harvard’s Library Innovation Lab has itself already created several apps for just this purpose.
Be aware that the Caselaw Access Project could still find ways to restrict or monetize access, for a short time, at least. “The project was funded partly through a partnership with Ravel, a legal analytics startup founded by two Stanford Law School students,” reports the Crimson. The company “earned ‘some commercial rights’ through March 2024 to charge for greater access to files.” The startup has issued no word on whether this will happen. In the meantime, public interest legal scholars may wish to do their own digging through this trove of caselaw to better understand the public’s right to information of all kinds.
Seder-Masochism, copyright abolitionist Nina Paley’s latest animated release, is guaranteed to ruffle feathers in certain quarters, though the last laugh belongs to this trickster artist, who shares writing credit with ”God, Moses or a series of patriarchal males, depending on who you ask.”
It also lets the air out of any affronted parties’ campaigns for mass box office boycotts.
“The criticism seems equally divided between people that say I’m a Zionist and people that say I’m an anti-Zionist,” Paley says of This Land Is Mine, below, a stunning sequence of tribal and inter-tribal carnage, memorably set to Ernest Gold’s theme for the 1960 epic Paul Newman vehicle, Exodus.
Released as a stand-alone short, This Land Is Mine has become the most viewed of Paley’s works. She finds the opposing camps’ equal outcry encouraging, proof that she’s doing “something right.”
What would the ancient fertility goddesses populating both art history and Seder-Masochism have to say about that development?
In Seder-Masochism, these goddess figures, whom Paley earlier transformed into a series of free downloadable GIFs, offer a mostly silent rebuke to those who refuse to acknowledge any conception of the divine existing outside patriarchal tradition.
In the case of Assistant Professor Nguyen, perhaps the goddesses would err on the side of diplomacy (and the First Amendment), framing the dust-up as just one more reason the public should be glad the project’s lodged in the public domain. Anyone with access to the Internet and a desire to see the film will have the opportunity to do so. Called out, maybe. Shut down, never.
The goddesses supply a depth of meaning to this largely comic undertaking. Their ample curves inform many of the patterns that give motion to the animated cutouts.
Paley also gets a lot of mileage from replicating supernumerary characters until they march with ant-like purpose or bedazzle in Busby Berkeley-style spectacles. Not since Paul Mazursky’s Tempest have goats loomed so large in cinematic choreography…
The elements of the Seder plate are listed to the strains of “Tijuana Taxi” because… well, who doesn’t love Herb Alpert and the Tijuana Brass?
Paley’s own religious background is of obvious interest here, and as with her previous feature, Sita Sings the Blues—also in the public domain—the autobiographical element is irresistible. A 2011 audio recording provides the excuse to portray her father, Hiram, who died the year after the interview was conducted, as a Monty Python-esque God. The senior Paley was raised in an observant Jewish household, but lost faith as a young man. An atheist who wanted his children to know something of their heritage, Passover was the one Jewish holiday he continued to celebrate. (He also forbade the kids from participating in any sort of secular Christmas activities.)
A wistful God with the complexion of a dollar bill, Hiram is at times surrounded by putti, in the form of his parents, his contentious Uncle Herschel, and his own sweet younger self.
As you may have gleaned, Paley, despite the clean elegance of her animated line, is a maximalist. There’s something for everyone (excepting, of course, Mimi Thi Nguyen)—a gleaming golden idol, a ball bouncing above hieroglyphic lyrics, actual footage of atrocities committed in a state of religious fervor, Moses’ brother Aaron—a figure who’s often shoved to the sidelines, if not left outright on the cutting room floor.
We leave you with Paley’s prayer to her Muse, found freely shared on her website:
Although still playing in cinemas throughout the country, the new Ruth Bader Ginsburg documentary–simply called RBG–will air tonight (Sunday) on CNN. Tune in at 8 p.m. Here’s a quick synopsis:
At the age of 84, U.S. Supreme Court Justice Ruth Bader Ginsburg has developed a breathtaking legal legacy while becoming an unexpected pop culture icon. But without a definitive Ginsburg biography, the unique personal journey of this diminutive, quiet warrior’s rise to the nation’s highest court has been largely unknown, even to some of her biggest fans – until now. RBG is a revelatory documentary exploring Ginsburg ‘s exceptional life and career from Betsy West and Julie Cohen.
Writing in the New York Times, film critic A.O. Scott observes that the “movie’s touch is light and its spirit buoyant, but there is no mistaking its seriousness or its passion. Those qualities resonate powerfully in the dissents that may prove to be Justice Ginsburg’s most enduring legacy, and RBG is, above all, a tribute to her voice.” Watch it tonight…
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The Library’s Drawings Online program gives the public free access to over 10,000 downloadable images, drawn primarily from—and in—the fifteenth through nineteenth centuries. Many images are fleshed out with inscriptions, information on provenance, biographical sketches of the artist, and, in over 2000 instances, images of the verso, or flip side of the paper.
Researchers and similarly informed seekers can browse by artist or school, but what if you don’t quite know what you want?
You could tour the highlights, or better yet, bushwhack your way into the unknown by entering a random word or phrase into the “search drawings” function.
Knowing that the internet is crazy for cats, I made that my first search term, but the results were skewed by an 18th-century Dutch artist named Jacob Cats, whose work abounds with cows and sheep.
And the Where’s Waldo-esque excitement I felt upon an anonymous artist’s Mountain Landscape with Italian-Style Cloister faux-Bruegel dissipated when I realized this return owed more to the abbreviation of “catalogue” than any feline lurking in the pen-and-ink trees.
Next I entered the word “babies.” I’m not sure why. There certainly were a lot of them, almost as many as I encounter on Facebook.
My favorite of the seven search results is illustrator Edmund J. Sullivan’s Soumin an’ Roumin from 1914. One of a dozen or so drawings Sullivan made for an updated edition of George Outram’s Legal and Other Lyrics, it shows “an old woman in a farmyard surrounded by livestock fleeing three monstrous lawyers wearing wigs and robes and armed with hideous talons instead of hands and feet. One … chases a cow with a scourge, the thongs of which end in scorpions.”
Download that one for all your lawyer friends or your lawyer spouse… upload it to a t-shirt if you’re crafty.
Claud Lovat Fraser’s set design for Pergolesi’s short comic opera La Serva Padrona (or The Maid Turned Mistress) at the Lyric Hammersmith doesn’t depict any lawyers, to the best of my knowledge, but he himself was one—also a caricaturist, lampooning the literary and theatrical luminaries of his day, and a soldier whose life was cut short due to exposure to gas in World War I.
In addition to the Morgan’s particularly well-fleshed-out artist bio for this work, the verso is a treat in the form of a printed announcement for the Chelsea Arts Club Costume Ball.
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