Monday, December 12, 2005

I'm not crazy about using this space to air gossip, but I found this story in yesterday's New York Times. I'm applying to law school as a musician concerned with intellectual property, after all, and this is right up that alley; plus, as the article points out, a story like this doesn't come along every day from the world of classical music. So here's a chance to practice rhetoric for my application essay.

Here's the nutshell: Three members of the Audubon String Quartet decided their first violinist was obstinate, domineering, and generally damaging to the direction of the group. So they fired him. He sued them for wrongful termination; and a judge decided the quartet constituted a corporation, and that the violinist was entitled to $132,844 in lawyer's fees, $78,275 in quartet funds, and 25% of the quartet's value of the business, which was determined to be $400,000.

Obviously, three classical musicians don't have that kind of cash on hand. They declared bankruptcy -- and the first violinist promptly placed liens on their property. Now they face involuntary liquidation, meaning their homes, cars, bank accounts, and even their violins may be sold to pay their debt. Just the other day I wrote about rightful debt, so the question arises: Is this right?

The details of the squabble are petty. You can read them for yourself; but if the writer reported them accurately, I think it's safe to say they had little effect on the judge's application of the law. He could easily have decided in favor of Ehrlich (the first violinist) and awarded him two nickels and a pat on the back. But by deciding that the quartet constituted a business whose "product was their musical performances," and by assigning each member the status of owner and director, the judge drew artistic conclusions about the nature of the ensemble.

As I understand business, it exists to make a profit. If classical musicians wanted to make money, they'd sell real estate; and string quartets aren't exactly the top of the classical pyramid. Reviewing the Audobon's discography, they've covered music by Donald Erb, Ezra Laderman, and Ernest von Dohnanyi -- and if you've never heard of those people, you've got that in common with every other human being on the entire planet. This isn't a pursuit that leads to fame, and it certainly won't yield earth-shattering sales that will pay your great-grandchildren's tuition. You do it because you love it or you don't do it at all.

Moreover: What is the dollar value of a quartet? And when you've figured that out, riddle me this: What is the dollar value of a quartet whose three-fourths feel incapable of working with the remaining member? Ehrlich claims he was the victim of a conspiracy; I don't know the backstory, but let's assume he's right. Does that matter? If a quartet is fractured along those lines, does it matter whether the operative word is "can't" or "won't"? The bottom line is, the quartet is only productive if all four members can work together in harmony (pardon the pun). Without that element, it seems to me the group's value is nil.

Even if you decide the quartet is a business, a necessary component of its function is the exercise of artistic judgment; and the decision to play with one person over another is every bit as vital as the decision to play one piece over another. The violist commented, "The very essence of this whole case is, how is it possible for three people who dismiss one person and end up like that?" In defense of Ehrlich, a fellow musician quipped, "You get two weeks notice at McDonald's."

Is our legal system such a blunt tool that we must consider this scenario in terms we would apply to a job flipping burgers? Is the distinction too subtle for the perception of our jurists? A musical ensemble is a balancing act between taste, talent, skill, personality, and old-fashioned luck and circumstance; and one loose stone can topple the tower. Is it reasonable to apply a standard designed for one model onto a totally different scenario? And if not, what was the alternative? Is there an arrow in the quiver that would have suited this case?

Rhetoric off. My two cents? This case should have been tossed. Judicial activism isn't simply carving new definitions to suit personal grievances; sometimes, activism is stretching old principles into territory where they never belonged. I suppose there's something admirable about a judge who takes his job seriously and tries to help; but on occasion, the appropriate response is to tell the parties, "Your story is unfortunate, and you seem like nice people -- but no legal remedy exists for your situation. Dismissed. Next case."


At December 14, 2005 11:00 PM, Anonymous Anonymous said...

Application approved! Stick with your practice rhetoric on the real thing. I've followed this case for some time and it unsettles my view of the legal system. "blunt instrument" indeed. A faithful and undiscerning application of statutes by a judge who regards that as his charter, perhaps. But an application that adds up actually, when said and done, to an effective misapplication.


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