Jul 132014
 

A few things happened today: Germany won the World Cup, and I ended up in several unsettling conversations about the current contretemps between Israel and Hamas, which somehow led to a German friend saying something to the extent that the Holocaust was 70 years ago and it was time for Jews to get over their sense of victimhood.

I won’t debate that point here right now (I’ve already railed in unconstructive astonishment on social media…) but I decided that the convergence of events today warranted republishing this post I wrote in law school, during the semester when I studied in Germany.

I’m really enjoying my time here in Germany. I’m learning a lot of interesting law, meeting lots of really nice people, learning the language… I’m really glad I came, and as an American student I’m being made to feel very welcome at the school, in the city, and in the country.

But I’m not just an American. I’m also Jewish, and it’s hard to think about being Jewish in Germany without stumbling upon the elephant in the room: what happened 60-70 years ago. It’s the history we’ve all inherited – but to what end? I know relatives and acquaintances who refuse to set foot in Germany, not out of any sense of personal fear (although there probably is some distrust that the virulent anti-Semitism is truly a thing of the past) but more out of a lingering anger for those horrible crimes perpetuated against so many people, and particularly against people like us.

I can’t dismiss their feelings: they are a reasonable reaction to an incomprehensibly horrible tragedy that I would not want to minimize, nor encourage others to minimize. But at the same time, it’s completely unintuitive to me to dig my heels in and continue to punish a nation of strangers. On the contrary, it seems that the complete opposite is called for. Hatred festers in the distrust unfamiliarity breeds. The thing to do, it has always seemed to me, is to take affirmative steps to not be strangers anymore. Continue reading »

Jun 052014
 

The Bluebook. For non-lawyers unfamiliar with it, it’s a guide to a standard system of citation formats that legal practitioners often use in their court filings and academic legal writings.

Unfortunately, the Harvard Law Review claims copyright over it and has been using that claim to threaten others who might want to build tools implementing this citation system. Theoretically, the Harvard Law Review may legitimately have a copyright interest in aspects of the Bluebook book, such as the text explaining how to use the citation formats correctly.  But as for the citation system, this should not be copyrightable. See 17 U.S.C. Section 102(b):

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

However, in light of the recent ruling by the Court of Appeals for the Federal Circuit finding copyright in software APIs — something that should have been similarly precluded by Section 102(b) — I mused in a tweet:

It would be an absurd result contrary to the language of the statute and represent a fundamental change in the goals and legitimacy of copyright law, but under the Federal Circuit’s reasoning it would be a logical outcome.

It would also be the height of hypocrisy. For the Harvard Law Review to be able to claim infringement it would need to show that the claimed IP is unique to it. And it can’t, at least not for all citation forms. Take the system for citing blogs, for instance. The most recent edition of the Bluebook says that this would be the correct format to cite this blog post:

Cathy Gellis, The Bluebook Stole My IP, STATEMENTS OF INTEREST (June 4, 2014), http://www.cathygellis.com/soi/2014/06/the-bluebook-stole-my-ip.html.

See Rule 18.2 in the 19th Edition. However, the 18th Edition prescribed something completely different (see Rule 18.2.4):

Statements of Interest, http://www.cathygellis.com/soi/ (June 4, 2014).

Which is, of course, a completely useless citation format. It doesn’t indicate author, it doesn’t indicate post title, it doesn’t indicate URL (which one needs to be able to search the Internet Archive for when online materials disappear).  It’s complete garbage. Which is why years ago I publicly declared it to be a stupid citation method and recommended that everyone instead cite blogs via a completely different approach.  See the first comment appended to this 2007 post (Christine Hurt, Bluebook Pet Peeves, THE CONGLOMERATE (March 13, 2007), http://www.theconglomerate.org/2007/03/bluebook_pet_pe.html#c63110048):

1. Posted by Cathy on March 13, 2007 @ 9:22 | Permalink

It’s weird how the Bluebook form plays up datestamps and plays down author’s names. I’ve suggested that instead blogs should be cited just like articles are cited. So, for instance, instead of this:

Susan Crawford Blog, http://scrawford.blogware.com/blog/ (Apr. 27 2006 22:05 EDT).

which would completely ream someone like Howard Bashman, whose name is not part of his blog title or URL and therefore would never show up in the cite, it should be

Susan Crawford, Onward, SUSAN CRAWFORD BLOG, Apr. 27, 2006, http://scrawford.blogware.com/blog/_archives/2006/4/27/1917067.html.

I can think of few instances where that form wouldn’t work. Well, ok, I can think of one: linking to a subjectline-less post on a teenager’s MySpace page. For that, the original Bluebook form would probably be better. It’s just kind of sad, though, that the Bluebook is keying its recommendation to that particular form of electronic media and failing to recognize the tremendous scholarship that lies out there on proper blogs and allowing us to effectively capture a reference to it.

This comment referenced this 2006 post on my now-defunct law school blog (Cathy Gellis, The Bluebook on Blogs, THE GREAT CHANGE: TURNING CATHY INTO A LAWYER (Apr. 30, 2006), available at https://web.archive.org/web/20070330030551/http://www.cathygellis.com/mt/archives/000765.html), and was then referenced at this post by Howard Bashman (Howard Bashman, The method for citing to blog posts found in the 18th edition of The Bluebook “would completely ream someone like Howard Bashman,” HOW APPEALING (Mar. 15, 2007, 3:20 PM), http://howappealing.law.com/031507.html#023356), which I then cited to at this post (Cathy Gellis, Rumors of Howard Bashman’s reaming have been greatly exaggerated, THE GREAT CHANGE: TURNING CATHY INTO A LAWYER (Mar. 15, 2007), available at https://web.archive.org/web/20070322060558/http://www.cathygellis.com/mt/archives/001037.html), and he responded to here (Howard Bashman, “Rumors of Howard Bashman’s reaming have been greatly exaggerated,” HOW APPEALING (Mar. 18, 2007, 5:54 PM), http://howappealing.law.com/031807.html#023445).

With just a few tiny punctuation differences, the procedure I recommended for citing blogs is just what the 19th Edition now requires.  But note that I recommended citing blogs this way back in 2006, whereas the 19th Edition of the Bluebook wasn’t copyrighted until 2010, so that’s a hell of a lot of prior art showing how my innovation for how to cite blogs pre-dates any claimed by the Harvard Law Review. In fact, it looks like, if the Harvard Law Review is correct that citation formats are protectable intellectual property, that they are actually infringing on my IP.

But, hey, I’m easy. Tell you what, Harvard Law Review: if you don’t want any trouble with me, stop making trouble for the Carl Malamuds and Frank Bennetts of the world who are just trying to make it a little easier to promote the progress of arts and sciences for everyone.

Otherwise, just to be clear…

Dear Carl Malamud, Frank Bennett, and anyone else who would like to use my blog citation format EXCEPT THE HARVARD LAW REVIEW: you have my permission to do so.

May 252014
 

A few years ago, in response to the Susan G. Komen foundation pulling its support of Planned Parenthood, I tweeted in disgust, “Politicizing women’s health makes me sick.” This tweet then led to an interview with a writer for the American Bar Association’s Commission on Women for an article considering whether we were facing a “war on women.”

As part of that interview I called myself a “very reluctant feminist.” I’ve always thought that gender shouldn’t matter. People are people, and we all are just trying to do the best we can.

And yet, who are we kidding? The sua sponte spawning of the #YesAllWomen hashtag shows just how much a myth it is that women have an equal seat at the table of life.

I suppose I’ve always known this in some way, and after publishing my contribution to the #YesAllWomen tweetstream today I decided to repost something I blogged in law school considering this very issue. Continue reading below the jump.


Continue reading »

May 112014
 

Warren Agin’s blog post on the survivability of contracts during bankruptcy prompted me to resurrect this blog post I had written on my law school blog during my semester studying in Germany.

In my French class* yesterday:

Me (reading aloud): “La resolution de contrat, lorsque celui-ci est syn… synal… synallagmatique?”

Teacher (in French): “It’s the same word as in German.”

Me: [sigh]

Actually, the word exists in English too: “synallagmatic.” But it’s not a word I’ve ever encountered before, not even in law school. Although interestingly, Dictionary.com says it means “bilateral” in Louisiana civil law. I suspect, however, that it may mean “bilateral” in a distinctively civil law sense. In the common law system of contracts, when we mean bilateral we say “bilateral,” but then our whole perception of the directional dynamics of a contractual agreement may be significantly different from those in civil law systems.

Take German law, for instance. German contractual law includes the concept of separation. This means that in any transaction involving the transfer of ownership of some good, there are at least three separate agreements bound up in the transaction:

– A contract for the sale of the good
– A contract to transfer the ownership of the good, and
– A contract to transfer ownership of the money used to pay for the good

These agreements may be thought of as three strands twirled into one rope. And, by analogous extension, as we all understand ropes to work, cutting one strand will not necessarily cause the whole rope to be cut. (This separate strand-cutting is known as the principle of abstraction.) In other words, just because one contract fails does not mean the entire deal fails too.

To a common law American, this situation may seem strange. If one of those strands gets broken, how can the rest remain? We generally see each strand as a condition necessary for the contract to retain its overall enforceability. For instance, if the ownership of the bargained-for good has been transferred, but the money has not been paid, how can the party who received the good still keep it? Under American contract law, he couldn’t. But even under German law he likely couldn’t either, although via different legal reasoning than American law.
Continue reading »

Sep 082013
 

In light of the news of a proposal being floated to name the new span of the San Francisco Bay Bridge after former San Francisco mayor Willie Brown, I thought I would repost what I wrote a few years ago about naming civic structures after politicians generally. Short answer: I’m against it, and I use another Bay Area bridge as an example of how civic structures should better be named. (Note also the post-script at the end.)

In the days where naming rights to every civic structure are routinely sold to the highest bidder, it’s nice to see things get named after a deserving and appropriate person.

California just completed a new suspension bridge (in the Bay Area, crossing the Carquinez Strait carrying eastbound I-80 traffic) and named it the Alfred Zampa Memorial Bridge. According to CNN (Update: link may no longer be active):

[The bridge] is named for an ironworker who fell from the Golden Gate Bridge during its construction in 1936 and survived to help build six more bridges in the Bay Area.

Zampa died in 2000 at 95, weeks after turning the first shovel of dirt for the bridge.

He sounds like a worthy recipient of the honor of having the bridge named after, and certainly much more worthy than others who’ve had civil engineering projects named after them like, say, Ronald Reagan. Someone wrote on the Internet somewhere (I forget where) that it was tremendously ironic to name an airport after the man who had fired all the air traffic controllers.

I think it would be advisable to make a rule (either codified, or simply as a hegemonically and tacitly socially agreed-upon tradition) not to name things after people until 50 years after their death. This would give us a chance to really reflect on these people’s contribution to society and decide if, on retrospect, we still feel highly enough about them to justify the honor. Also, particularly in the case of political figures, such a policy would prevent the naming of structures that everyone shares for people whose politics not everyone necessarily favored.

True, Zampa died only a few years ago, but it’s not like he was a political figure whose supporters called in political favors to have the structure named after him. And the story of his contributions to the Bay Area’s infrastructure makes naming a bridge after him seem very appropriate. Perhaps if it was a baseball stadium they wanted to name after him I would feel differently. But then again, if it would prevent another recurrence of an Enron Field…

The preceding was originally posted November 10, 2003. A few months later, on another post, came the following comment by Ronald Zampa:

I like your commentary regarding the naming of things. Alfred Zampa was my grandfather and a local legend. There never was a more down to earth individual. He started building bridges on the first Carquinez in 1926 and the rest is history. I wish more of the structures in America were named after the people that did the work to build this country.

Jul 142013
 

I wrote this originally on July 14, 2003, shortly after the US decided to invade Iraq.

It’s Bastille Day and a great time to comment on all things French.

On Friday the Sofitel Hotel in Redwood Shores hosted a party to celebrate an early Bastille Day. It wasn’t all that much fun – way too American! (The band should have played French music!) – but I got to catch up with my friend Valerie, an actual French person, and there were fireworks afterwards. We spoke French a little as well and I was happy to see I haven’t forgotten it all despite not having been in France since March. When I’m in France my French skills sort of warm up and I get more fluid with my speaking. But I don’t practice much when I’m in the US because it just doesn’t seem intuitive to describe life in the US in French. French fits France: the roads, the buildings, the people, the food, the life, the light, the French ambience in its entirety. But in the US, and maybe California in particular, the spaces are broader and, how shall I say it, differently colored? There is a rhythm to life which requires the English vocabulary and its broader phoenetic syllables to describe. Whereas IN France the opposite is true and English feels clunky and ineffectual.

Apparently last year for Bastille Day the Sofitel Hotel hung a gigantic French flag off of their building. This year I guess they’ve chosen to be more subdued. I think it’s an absolute shame that they think they need to. There was a recent article in the New York Times about how American families were refusing to host French foreign exchange students. Such behavior is absolutely appalling.

  • Even if we assume that the French have done something unforgivable, what sense does it make to penalize students?
  • Given the rift between our respective cultures, what sense does it make to deny ourselves the opportunities to build bridges between us that foreign exchanges afford?
  • Even if we accept the most cynical assessment of Chirac’s motivation for not agreeing with the US on Iraq, I don’t believe, from my experience meeting real live actual French people in France, that the French reluctance to invade Iraq was based on anything other than reasonable, rationale, and humane concerns.
  • If either country has behaved in a way that requires apologizing, it’s not France. All things considered I think the French have been tolerating tremendous American arrogance with astonishing equanimity. I’ve not heard of an example of the French being nearly as inhospitable to Americans as we are being to them.

Not to mention how foolish this attitude is if it turns out that the French were right about Iraq.

I just find it unfathomable that there are Americans who would tell me that to support my country I need to now hate the French. I didn’t go to all the trouble to learn their language just so I could lord myself over them in a misplaced sense of haughty patriotism. I think, rather, that it would be advisable for more Americans to go to the trouble to try to see things from the French perspective. And rather than continue to resent them for WWII, if we are determined to rely on history to justify our contemporary relationships, perhaps we would be better served by recalling the contributions of Lafayette, or perhaps the gift of the Statue of Liberty, or any other of a number unsung occasions of the French supporting Americans.

Jun 132013
 

It’s all Huey Lewis and the News’ fault.

A few years ago, after moving back out to California following law school, I somehow decided it would be fun to ride my bike to a Huey Lewis and the News concert. I think this notion was rooted in the remnants of some adolescent teenybopper fantasy I used to harbor that they’d someday play in my town, so the idea that I could propel myself to one of their shows under my own power appealed to me as a way to somehow scratch that old itch. However WHY I thought I could do such a thing is a bit of a mystery. The band frequently plays shows in Saratoga, which is near where I used to live and ride before law school but not really near where I was currently living and riding. Plus it’s not like I was ever any sort of serious cyclist. Even when living in the South Bay I rarely biked more than 20 miles at one time, and during law school I hardly ever biked for any length at all. Nonetheless, once I got it into my head to bike to the concert, I had to do it. So I did, riding 65 miles south from my home in Sausalito to see my favorite band play.

Even though it was a taxing ride for me, I did it again a few more times over the next few years, until about two years ago when my plans were stymied. Their concert was going to be in the middle of the week, not on a weekend, thereby making the logistics unfeasible. “Saratoga on a Wednesday??? How am I supposed to bike there then?” I posted on a fan board. “Or am I expected to bike to Reno this year instead?” For, you see, the Reno show was going to be on the Saturday, and while I was fully joking in suggesting I might bike there, as soon as I articulated the thought the mental wheels started turning. Could I actually bike to Reno I wondered? The googling of potential routes immediately commenced, and, yes, it turned out, I indeed could. And so I indeed did.

The Reno ride was about 200 miles over three days, requiring the traversing of the Sierras on Day 2 and what was then my longest one-day mileage record of 82 miles on Day 3. It wasn’t easy, but I did it, and suddenly my cycling ability and confidence matured many levels – so many that when I rode the 65 miles to Saratoga for the concert last year, it was embarrassingly easy. Clearly I was going to need a new challenge.

I suppose I have always been somewhat aware of what used to be called the California AIDS Ride, the multi-day bike ride from San Francisco to Los Angeles. You pretty much can’t walk into a bike shop in the Bay Area without seeing flyers for it. While I always thought it was something I’d like to say I’d done, I never could imagine it being an attainable undertaking. It was for serious cyclists, not an occasional weekend rider like me. But after the Reno ride I started to rethink the kind of cyclist I might actually be. Last year, in addition to the 65 miles to Saratoga, I also did 72 miles around Lake Tahoe and 86 miles from Sausalito to Santa Cruz. Day 1 of the AIDS ride, now known as AIDS Lifecycle, was just from San Francisco to Santa Cruz, and I already knew I could do that part. It made me start to think that maybe, just maybe, the AIDS Lifecycle really was for people like me. Dipping my toe in ever so slightly, early this year I signed up.
Continue reading »

 Posted by at 8:22 am
May 042013
 

Another repost from my old blog:

Last night I helped my dad clear the table. “Where do we put the trivet?” I asked.

Then I interrupted myself. “What a useless word, ‘trivet.’ In a way it’s nice that there’s such a precise word for this specific thing, but it’s sort of a waste of mental space to have to know a word that almost never gets used.”

To which my dad said, “Oh, I don’t know. I try to use it three to four times a day.”

And then, over the course of the rest of the evening, he did. Of course, not always in its original meaning, as a noun describing a portable flat surface upon which one sets hot dishes. Sometimes he used it as a verb or an adjective. Which necessarily involved adding some new meanings to its definition, as the context it was used in would dictate.

At first its meaning fluctuated somewhat randomly, but over the course of the evening it did seem to take on a consistent usage. As an adjective it sort of described a state of flummoxed confusion. In fact, in a way it described that particular condition better than any other actual English word did. So much so that I think the word “trivet” (or, in this case, “triveted”) should be adopted for common parlance.

I suspect it could be done so successfully, because at one point my sister had wandered into the room and overheard my dad inserting the word into conversation. It was perfectly clear to me what he was saying when he used it, but not so my sister who had never come across this word before (despite her rather expansive vocabulary). Completely trusting that it was an actual word in an actual dictionary, she asked my dad what it meant so she could add it to her repertoire. I think she genuinely expected that it would have some lengthy etymology, dating back perhaps all the way to Ancient Greece. As opposed to the backyard, an hour earlier.

 Posted by at 4:18 pm