Klarinet Archive - Posting 000091.txt from 2009/02

From: K S <krsmav@-----.com>
Subj: [kl] Derivative Works
Date: Wed, 04 Feb 2009 20:43:39 -0500

Jonathan Cohler writes:

> Every case is decided on a "case-by-case" basis. There are no "bright-line" rules anywhere in the law, or we wouldn't need courts then would we? <

As a lawyer, I disagree, for two important reasons.

First, there are plenty of "bright-line" rules in law. You go to law
school to learn them. For example, in your second week of law school,
you learn that an offer to sell is accepted (and a binding contract is
formed) when the buyer drops an acceptance letter in the mailbox, even
though the seller doesn't know about it and doesn't get the letter
until later. If, during the interval between mailing and receipt, the
seller cancels the offer and sells the goods to someone else, that's a
violation of the contract, and the buyer wins. We can argue about
when the letter was mailed, and more generally about whether the
"mailbox rule" is a good one, but there's no doubt about the rule.

Second, and I think more important, courts exist to resolve conflicts,
not to apply rules. People's interests clash, and society needs a way
to resolve the clash short of fighting a duel. Courts decide,
definitively, "A, you win, and B, you lose. Now go away and get on
with your lives."

It's like an audition committee deciding "A, you win and are now our
principal clarinetist; B, you lose and now must go away." You can
argue about whether the decision is the right one, but not about
whether the decision was made, or whether the audition committee had
the power to make it.

Ken Shaw

------------------------------------------------------------------
The 2009 Woodwind.Org Donation Drive is going on right now - see
https://secure.donax-us.com/donation/ for more information.
------------------------------------------------------------------