A Fool in the Forest

A fool, a fool! I met a fool i' the forest,
A motley fool; a miserable world!
As I do live by food, I met a fool
Who laid him down and bask'd him in the sun,
And rail'd on Lady Fortune in good terms,
In good set terms and yet a motley fool.

As You Like It, Act II, Scene 7

L'homme y passe à travers des forêts de symboles
Qui l'observent avec des regards familiers.

Les Fleurs du Mal, “Correspondances”

Wednesday, December 24, 2003
Christmas Cavalcade


This Fool wishes to all his readers, whether regular, occasional or simply lost after a wrong click in Albuquerque, a most merry and auspicious Christmas. For the occasion, a random selection of seasonally apropos items posted by others:

♣ From deep in the Southern Hemisphere, Kieran Healy reports on "the uneasy Australian detente between the season and the Season". (A helpful commenter also links to the lyrics of an Australian Christmas song, "Six White Boomers," from the semi-legendary Rolf "Tie Me Kangaroo Down" Harris.)

A C Douglas bemoans "the Great Wising Up" and the harm it has done to the Christmas season, which he declares to be "my most favorite time of year, and the one (and only) time I wished I were a Christian rather than a Jew."

Brian Micklethwaite treats us to Raphael's Sistine Madonna -- complete with those ubiquitous eye-rolling cherubs -- and some quick thoughts on the relationship between quality and popularity in art.

♣ And haiku-crafting legal ethicist about town David Giacalone reminds us that even attorneys may once have been really cute kids. (He earns points for his post title, too.)

And now, if you'll excuse me, I will be off to honor the holiday in the midst of my family. Meanwhile,

Merry Christmas to All!

Tuesday, December 23, 2003
Ways and Memes

The referrer logs tell me that I am keeping interesting and unexpected company.

In the middle of a "Howard-Dean-Is-Not-What-He-Seems" piece, Lowell Ponte of David Horowitz's Front Page magazine makes this statement:
During his 11-1/2 years as Vermont Governor, Dean turned into the back room wheeler-dealer today known as the 'captive candidate' for President.
The mid-sentence link is to my piece linked below, reporting on reports of Howard Dean's encouragement of the captive insurance industry during his time as Vermont governor. And as a Google Search will show, at the moment the only places in which Dr. Dean is "known as" "the captive candidate" are in the title of my post and in the sentence just quoted.

I'm happy to serve as a coiner of memes, but thus far "captive candidate" is not nearly so successful as lilexia.
Dubious Achievements in Legal Drafting

Stanford law professor and intellectual property zealot Lawrence Lessig has put up a longish post on Wal-Mart's new online music venture. In addition to noting some technical glitches -- downloaded songs wouldn't play on his system -- he emphasizes the highly restrictive terms of the agreement that a consumer must accept before downloading, and the manner in which that agreement contradicts the expectations that consumers have historically had when purchasing music (e.g., the expectation that you can make "fair use" of music you have legally acquired, such as by using it as a soundtrack for home videos, incorporating portions into a personal mix tape, and so on). For connoisseurs of legal draftsmanship, however, the highlight of the piece has to be this splendidly self-contradictory sentence, drawn from deep within the Terms of Service agreement:
All Products are sublicensed to you and not sold, notwithstanding the use of the terms 'sell,' 'purchase,' 'order,' or 'buy' on the Service or in this Agreement.
This is cutting-edge stuff. Consider the possibilities if this approach to contractual language were to catch on. For example:
The Product will consist of a bag of small rocks and not an automobile, notwithstanding the use of the terms "automobile," "motor," "vehicle," "motor vehicle" and "BMW" in this Agreement and on signage at any facility at which this Agreement may be executed.
The Worker shall become the property of the Boss, to be dealt with at the Boss's sole discretion and transferable by sale to any other Boss of the Boss's choosing, and shall receive money, food, rest and shelter only when the Boss is so inclined, notwithstanding the use of the terms "employ," "employee," "wages", "benefits" and "freedom" elsewhere in this agreement.
Parse that, if you will, and despair.