Michelangelo Buonarroti (born March 6, 1475) was a giant of the Italian Renaissance whose painted works include The Sistine Chapel and The Last Judgment. Yet as legendary Michelangelo scholar Frederick Hartt tells us, the artist thought of himself first and foremost as a sculptor. See Frederick Hartt, Michelangelo at 8 (1984). The manner in which Michelangelo worked—and in particular the extraordinary story of the sculpting of The David—impart many lessons to the modern world. On Michelangelo’s birthday, the story of The David offers four simple but important lessons for all lawyers and technologists: (i) start from scratch and think outside the box; (ii) ask what your rivals might do in the same position and with the same tools and materials; (iii) cultivate talent; and (iv) remain humble and think of the long term.
First, however, the story itself. Giorgio Vasari, a late Sixteenth-Century biographer who traced the development of Italian art from the Thirteenth Century to the Golden Age of Renaissance Florence, describes in great detail in his Lives of the Artists the fate of a block of marble that would leave an indelible imprint on western civilization. The marble in question was eighteen feet high. It had begun to be carved by an otherwise historically forgettable Simone da Fiesole, who hoped to carve a giant figure, but whose craftsmanship was so shoddy that “he hacked a hole between the legs and left the block completely botched and misshapen,” according to Vasari. And so the wardens of Santa Maria del Fiore, where the block stood, paid it no heed and left it abandoned for many years, a state in which it seemed likely to remain indefinitely. Years later, one Piero Soderini, who had been elected head of the Florentine Republic, noticed the massive stone and offered it to Leonardo da Vinci, who refused it, and later arranged to give it to Andrea Contucci of Monte Sansovino, an accomplished sculptor who was eager to have it. It is at this point in this notable history that Vasari exercises considerable literary license, for he tells us only that the great Michelangelo Buonarotti learned of the marble and expressed an interest in acquiring it, which he did. Vasari does not share the circumstances of this transfer, but perhaps it suffices to posit that Michelangelo may have held more sway than his contemporaries.
Thus Michelangelo obtained the massive block that had been “botched,” ignored for years by its caretakers, scorned by Leonardo, and snatched by History from Contucci. According to Vasari, Michelangelo measured the stone and calculated whether he could carve a satisfactory figure from the block “by accommodating its attitude,” which he did while working continuously in secret beneath his scaffolding. Michelangelo’s vision of his uncarved masterpiece transcended the pocked stone that he inherited, for he saw within it the potential to work a miracle by restoring to life something that had been left for dead. And so came to life The David, a figure whose shadow looms over every other statue ever sculpted.
What lessons does this account hold for lawyers and technologists? Many, but I’ll focus on the four mentioned above.
1. Start from Scratch. Assume that you are writing an appellate brief. You have the trial record, mountains of case law, maybe legislative history, and briefs written by other parties in yours and similar cases. Start from scratch. Nothing is sacred. This was precisely the advice that Chief Justice Warren Burger imparted to my first mentor in the law, who shared it with me before my clerkship. It is safe and tempting to follow well-worn paths, but beware lest your arguments become as empty as those before them. Moreover, just like Michelangelo, you may well be treading in territory that has been “botched” by others before you. If you’re looking for inspiration, pull up Judge Kozinski’s dissent in Lexecon, Inc. v. Millberg Weiss Bershad Hynes & Lerach (9th Cir. 1997), an erudite thumb of the nose to over 130 previous cases and the Ninth Circuit panel that agreed with them on that day. The correct answer was as plain as the meaning of the statutory language in question, yet Judge Kozinski saw it first. The Supreme Court adopted the crux of his position unanimously. For both technology entrepreneurs and lawyers, it is imperative to consider how old paradigms must be applied to contemporary realities. Consider Barclays Capital Inc. v. Theflyonthewall, Inc., a case before the Second Circuit to determine whether the posting of an investment bank’s advice on a site called Theflyonthewall.com triggered heretofore unrecognized quasi intellectual property rights. How do a 93-year old U.S. Supreme Court case, International News Service v. Associated Press (U.S. 1918), or even a 14-year old federal court of appeals litmus test, National Basketball Association v. Motorola, Inc. (2d. Cir. 1997), address issues of appropriation of valuable information (“hot news”) when today’s daily methods of disseminating information instantly and around the world (e.g., Twitter, Facebook, Gmail, blogging platforms, and Flickr) had not even been conceived when those opinions were issued? What new arguments must be made when anachronistic legal doctrines converge with technology that would have seemed like magic when those doctrines were set forth? How does the law apply to these new technologies and how must it adjust? Start from scratch. Nothing is sacred.
2. Ask What Leonardo Would Have Done. It is easy 500 years later to poke fun at Michelangelo’s contemporaries, but there is always the big “what if”: What if Leonardo da Vinci had in fact accepted the stone when it was offered to him? We wouldn’t have The David, but what other brilliance would da Vinci have bestowed? It takes hubris to think of oneself as Michelangelo, but even more still not to ask who your Leonardo is and what he or she might do in your very position. Is it your opposing counsel? A judge with a world view to which you may need to adapt your case? An associate in your firm sitting on your winning theory yet too shy or intimidated to tell you? Is it an audacious start-up named Facebook with excited young programmers working out of a house in Palo Alto who only seven years ago went directly after market share owned by Friendster and MySpace? It’s a question well worth asking. Even Michelangelo was not the only show in town.
3. Cultivate Michelangelos. Legend has it that Justice William Brennan would excuse himself from conference at the Supreme Court in order to call his chambers and begin assigning cases, particularly to a young clerk named Richard Posner, who would have polished drafts waiting for the Justice upon his return to chambers. On one such occasion, Posner is said to have misunderstood the position that Justice Brennan had been assigned to write, but Brennan found his clerk’s draft so persuasive that he changed his vote. Whether this story is apocryphal is neither here nor there. We can all imagine Judge Posner having pulled this off just as we all remember professors or fellow students who think on a different plane than we do. Michelangelo was such a prodigy, but he too had a training ground: he was an apprentice to Domenico Ghirlandaio, a well-respected painter, and then trained in the art academy of Lorenzo de Medici. I once heard the managing partner of a law firm say without sarcasm that first-year associates are like mushrooms – they grow best when kept in the dark and covered in unpleasantness. Perhaps one of those associates was precisely the Leonardo he needed and never knew was there. Cultivate deserving Michelangelos. They are the future of your firm, your chambers, your tech start-up.
4. Remain humble and think of the long term. Michelangelo was not a humble man, but he did not sign The David. Indeed, “Michelangelo’s only signature on any work of art is carved into a band over the breast of the Madonna in the marble Pieta in St. Peter’s.” Hartt at 13. For tech entrepreneurs, remain humble and remember that companies wither and are reborn. Case in point: Apple. And disruptive technologies that may be ignored or suppressed in large corporations may trigger paradigm shifts when nurtured properly. For lawyers, let your work speak for itself. Excellence is usually—not always, but usually—recognized and rewarded by peers, Bar associations, rankings of top lawyers, judges, and so forth. Remember also that your work may not be recognized during your career or even your lifetime, and you may not need it to be. Judges often write dissents to plant seeds that may take generations to find life. There is a natural corollary to this point that is just as important as all the others set forth here. Judge Calabresi has said it best: Do not omit arguments you believe to be correct because of criticism you don’t understand. Respect such criticism. Allow it to hone your arguments. But probe it just as your critics probe you and remember that you need not be swayed. You may write a brief that doesn’t carry the day with a particular panel or trial judge, but in other similarly capable hands at the right time and in the right environment, those same arguments, discovered and tailored accordingly, may carry the day and change history.