Author: Deven Desai


Form of, “Did I Say That?”: Cheney on Occupying Iraq

It is difficult to stay pure as a politician. Subtle understandings about support for a position one day and reversals later are lost on the public. Decisions to do one’s duty by going to war and then doing one’s duty as a citizen or Senator by being critical of poor policies (so yes Kerry did his duty and served our country each time and should have said so) are hard to understand. Take a look at the clip below. In it Cheney, in 1994, identifies real issues about Iraq and holds that the U.S. should not have taken over Baghdad because of specific reasons having to do with the U.S. being alone, having to occupy the country, power vacuums, possible disintegration of the country, casualties, and more. The reasons or possible problems never went away. Thus although one may accept new reasons for supporting the invasion (dubious or not), the clip shows clear insights by a smart person that seem to have been ignored in planning the current war. Maybe there are points that are hard to understand, and only those in power are privy to them. But the exact detail with which Cheney describes the problems faced today in Iraq are stunning and suggests that the government may want to offer full, honest details about how it planned to address the issues Cheney identified in 1994. Even with the current reasonable distrust of the administration, such a move might rebuild a little faith in government.

Hat tip to Marjorie Cohn.


Codes and the Law, 38,000 Potential DUI Charges May Be Dropped

blurred driving2.JPGApparently code really is law or rather code matters to the law. CNET reports that CMI, which makes breathalyzers, refuses to give a client, the State of Minnesota, the code for one of its units. The defendant wants the source code, and the court has rejected the state’s position “that the state was not entitled to the code because of its confidential, copyrighted and proprietary nature.” The court ruled that under the contract the code belonged by extension to the state. Now here is the fun part, CMI has a history of not turning over its code to other states. If it does not do so here, the defendant should be able to have the charge of driving with a blood alcohol level of .08 thrown out. As the article notes, there around 38,000 such tests at issue in Minnesota and they too would likely be thrown out.

There is also a curious point: the report claims that CMI competitors routinely make the code available for the competitive edge in these situations. So one might think that Minnesota just chose poorly especially given that CMI has apparently behaved this way at least one time more than a year ago. But if the court is correct about the contract, it seems CMI is another example of knee-jerk claims regarding the need to maintain double secret probation for any piece of intellectual property even after a company apparently signs a contract indicating that its client in fact has some ownership of the IP in question. Thus another question arises: Why isn’t the state seeking an order requiring the code be given? Indeed, it seems that the state should make two moves. First, in the short term seek a protective order to defeat the CMI claims of loss of trade secret etc. and prevent the possible loss of the immediate case not to mention the potential for the quick move for dismissal by all the other 38,000 defendants. Second, as a long term strategy issue, sue CMI for breach of contract, go after whatever damages one could claim for the potential loss of 38,000 cases and the purchase of the devices, and last go to a competitor who realizes that the law needs the code.

Cross-posted at


Death of a Newsman: Hal Fishman 1931-2007

Hal Fishman.jpgFor those readers not from Los Angeles or who have not spent time there the name Hal Fishman may mean nothing. But for those longing for a Cronkite-like news anchor, one who inspired trust and sought to present the truth, know that Hal Fishman was just such a person, and he died this morning. Mr. Fishman obtained his bachelor’s degree from Cornell and his master’s in political science from UCLA. He started as a professor in the CalState system but is best known as a news anchor for more than 30 years in Los Angeles.

He was funny as shown by his first on-air comments ever: “Good afternoon, I’m professor Hal Fishman, and this course is certainly quite unique for me, because it’s the first course that I have ever taught where the student can turn the professor off.” And he used a simple method to stay popular: “being dedicated to being informed,” and being “a person that people can trust to give them a straightforward and accurate account of what’s going on in the world.” In his career he covered many major stories including the “Watts riots, the assassination of Sen. Robert F. Kennedy, the Sylmar and Northridge earthquakes and the Rodney G. King beating case” and was part of his station’s wining Peabody and Emmy awards for their coverage of the news.

Perhaps his simple view of the news desk as a classroom podium is why I will miss him: “‘When I was a professor…I used to tell my students, “You can’t have a properly functioning democracy without an enlightened electorate.” It’s our job as newscasters to enlighten the electorate. We are the conduits of information.’” Mr. Fishman relied on his knowledge of history and politics as he shared information and educated millions. The key is not the scale but the perspective on what it means to be a conduit of information and the responsibilities of such a position. In short, for his dedication to teaching and presenting clear, honest information I am grateful and hope that others try to emulate his approach to the news.


London-style CCTV Coming to New York

CCTV 2.JPGDan’s post about CCTVs in London coincides with a report by CNN that if Manhattan can obtain $90 million in funding (not to mention $8 million a year for maintenance), the city will install its own “Ring of Steel” as the British call it. The plan is called the Lower Manhattan Security Initiative and the claim is that “The primary purpose of the system is deterrence, and then an investigative tool.”

Yet at least in London it appears that the cameras have helped track people after a crime has been committed while deterence is harder to show. Here are some choice quotes from the CNN article in which Steve Swain who worked with London’s system for four years talks about his experience with the London system:

“I don’t know of a single incident where CCTV has actually been used to spot, apprehend or detain offenders in the act, he said, referring to the London system. … Asked about their role in possibly stopping acts of terror, he said pointedly: “The presence of CCTV is irrelevant for those who want to sacrifice their lives to carry out a terrorist act.” … Swain does believe the cameras have great value in investigation work. He also said they are necessary to reassure the public that law enforcement is being aggressive. “You need to do this piece of theater so that if the terrorists are looking at you, they can see that you’ve got some measures in place,” he said.

In contrast the article also details the way that Washington D.C.; Atlanta, Georgia; Baltimore, Maryland; and Chicago, Illinois among other cities use private cameras mixed with public ones as part of law enforcement . In addition, some cities have seen a drop in crime which they attribute to the cameras.

In short, one way or the other cameras are here, and we are on them. So whiten those teeth, fix your hair, get an agent, and smile, because This Is Your Life is back, and you are the star.


Beware! There Be Pirates Ahead!

jolly roger2.JPGThere were many good panels at LSA 2007 in Berlin. One presentation by Salvatore Poier of the University of Milan focused on the nature of the term piracy. The project examines the term as it was used in what the author calls the Golden Age of Piracy. Part of the claim is that the term shifts over time sometimes applying to a practice where those with few options created societies with relatively flat structures and had a certain respect to periods where the term has less favorable views. The word’s etymological roots are in Greek and the term stems from the word for to try or essay. In addition, I happen to be reading Paul Woodruff’s On Justice, Power, and Human Nature, a translation of Selections from Thucydides’ History of the Peloponnesian War, and recall that Thucydides presents a view of pirates that may be of interest. Assuming Woodruff’ translation is correct, it presents an interesting perspective for the term. It was not insulting and had some respect but became a practice to be eliminated as society changed. Here’s a quote:

In ancient times, you see, the Greeks had turned to piracy as soon as they began to travel more in ships from one place to another, and so had the foreigners who lived on the mainland shore or on the islands. Their most powerful leaders aimed at their own profit, but also hoped to support the weak; and so they fell upon cities that had no walls or were made up of settlements. They raided these places and made most of their living from that. Such actions were nothing to be ashamed of then, but carried with them a certain glory, as we may learn from some of the mainlanders for whom this is still an honor, even today, if done nobly. The same point is proved by the ancient poets, who show that anyone who sails by, anywhere, is asked the same question–“are you a pirate?”–and that those who are asked are not insulted, while those who want to know or not reproachful.

Read More


You Are Never Too Old To Learn

cap_and_diploma 2.JPGReuters reports that a 94-year-old woman in Australia has become the oldest person to receive a master’s degree. The woman, Phyllis Turner, obtained a Medical Science Masters Degree from Australia’s Adelaide University for her research on “the anthropological history of Australia prior to European settlement.” She left school at age 12 and returned much later to obtain her undergraduate degree with honors in 2002 and then her masters. The quotes from her supervisor are worth repeating: “Mentally she was like any other student. You couldn’t tell her thinking, her enthusiasm and her interests apart from somebody who was 25. She has a lively mind,” he told Reuters. “She used to wake up at 5am in the morning and think about something, and then ring to say she wanted to check on it.”

My school has older students whom I love to teach, and I recall the so-called reentry students at Berkeley were great to talk to (they also had I believe the highest GPA as group which tended to annoy the straight from high school crowd). So no real comment other than it is great to see someone at any age jump into their education and achieve. In short, well done, Ms. Turner.


Happy Associates? Say It Isn’t So

yellow cup reports that associates are happier than ever but here’s the punch line: they still plan on leaving firms. In fact, 44.9 percent plan on leaving their firms and 11.7 percent expect not to be equity partners. And as the article puts it, “Despite all the hand-wringing over associate retention, law firms report that in nearly half the associate departures — 49 percent — the firms were either neutral about the departures or happy to have the associates leave.” Perhaps the best part for law school readers is the prediction that AMLaw 200 firms want to hire about 10,000 associates and as the article explains “That astonishing number equals about one-quarter of all the students who will graduate from U.S. law schools next year. To put it another way, the top 20 law schools will only produce about 6,500 graduates.” The article goes on to predict talent wars and salaries in the $200K range. All of which is wild (insert appropriate the market is mad etc. comment and wait for the firms to continue on the path) but another point from the article may be more interesting: Hiring techniques of firms are suspect.

If these numbers are correct, it could be that firms should invest in human resources staff closer to what other corporate enterprises use as way to mitigate what seem to be hiring errors (These methods are suspect as well but appear better than current firm hiring systems). Alternatively it may be that hiring from brand name schools misplaces trust in those schools’ admissions. Sure the people are smart and can be attorneys, but do they want to be one bad enough to suffer through the life of a firm attorney for years and/or do they aim to be a partner? More on that question and the nature of firm hiring is below the fold.

Read More


“23 Business Days to Respond” Lessons in Goodwill and Customer Experience

luggage trolly 2.JPGThis line should never be part of a customer service message “If you have requested a response to your email, you should hear from from [sic] us within 23 business days.” In other words, thanks but we will take more than a month to respond. It takes chutzpah to send such a message, especially after the customer was directed to the email system as the phone system was overloaded. The source? Northwest Airlines. The result: A customer who will endeavor never to fly the airline again and will pay competitors a little more for that option. It is not just this experience that fueled the decision. In fact, I am willing to listen to companies’ apologies and stay loyal if the over all experience is solid and some amends are made for the poor service at issue. What is impressive is that NW has had several chances to change my impression but instead it has shown that NW is a consistent sign of source and quality – just poor quality. The full details are a bit comical and are below the fold along with some observations about customer complaints, brand strength, goodwill, and market opportunities.

Read More


Buying Diversity: Fenwick & West Offers Cash Incentives for Diversity Activities


Today The Recorder reports that Fenwick & West has a program in place that “closely ties diversity goals to partners’ compensation. Fenwick mandates so-called ‘upward’ reviews where associates specifically evaluate how much a partner has done to support diversity at the firm.” For those who wonder whether law review articles impact the non-academic world, this shift may be influenced by work by Richard Sander.

You may remember Professor Richard Sander and the papers he has published examining race and the legal profession (A Systemic Analysis of Affirmative Action in American Law Schools and The Racial Paradox of the Corporate Law Firm ). The first article prompted a response in Slate by Emily Bazelon, Sanding Down Sander: The debunker of affirmative action gets debunked, that summarizes criticism of Professor Sander’s article on law schools and has many links to the papers written in response to that one. As for the article on race at corporate law firms James Coleman and Mitu Gulati have a response (which is available from Professor Sander’s site). As Coleman and Gulati note the paper’s focus on grades may have flaws but they also note that Sander’s work documents “attrition problems, [And] Sander’s data also help either dispel myths or confirm intuitions on a number of fronts” including “demonstrat[img] that minority students are at least as interested in the practice of corporate law in the large law firm setting as their white colleagues, puncturing the myth that black students are disproportionately interested in civil rights and pro bono work and disproportionately uninterested in large-firm practice.” The response also credits Professor Sander with documenting significant minority recruiting efforts by firms and yet despite those efforts the attrition rate for black associates is high because “black associates are doing more of the grunt or rote work, receiving less responsibility and client contact, networking less with the partners at their firms, and consequently becoming more disillusioned with the firms earlier in their tenures.”

Elsewhere one critic, R. Bruce McLean, chairman of Akin Gump, had to admit “Nonetheless, the study serves as a call to action for large firms: It is time to reflect on the progress made in our minority attorney recruiting and socialization efforts and to examine where we can continue to improve.” And Kay Hodge, who chairs ABA’s Commission on Racial and Ethnic Diversity in the Profession, called “Fenwick’s practice is ‘an innovative and creative step’ for a firm.”

So what do people think? Is there something wrong with paying people to support diversity? Could it somehow aggravate perceptions about affirmative action? The Recorder article notes that many firms ask partners to list the ways they serve the firm through non-billable work and that supporting diversity is often listed. But I recall some attorneys I know feeling that amorphous service is never clearly compensated. As such perhaps explicitly tying the acts to money will have more impact on behaviors. I also think there is something odd about being paid to do something one ought to do in any event but that thought is for another time.


Your Law Firm on Trial: Jurors Investigate the Trial Attorneys


According to the New Jersey Law Journal New Jersey’s Supreme Court is considering a “rewrite of model charge 1.11(C) to include the Internet, cell phone messaging, chat rooms and Blackberries as off-limit sources for information about cases.” Although the charge is intended to address jurors seeking more information about the case at hand, the article reports that jurors are Googling the attorneys trying the case as well. A jury consultant firm asserts “Research has shown that jurors routinely disregard the instruction and want to find out as much as they can about everything related to the case, including the judges, witnesses and lawyers.” Apparently some firms are trying to cater to this phenomenon by being humorous and softening their Web image to affect possible jurors. In one case a firm made jokes about lecturing and an attorney’s love of beer beginning in college. My guess is that juries will bring all sorts of impressions to the trial. And, as one trial attorney (who at one point had won more than 30 trials in a row) told me, jurors watch and evaluate every move the attorneys make during the trial. If so, juries probably make evaluations more based on that interaction rather than the what they read on the Web. Thus it may be better to smile at trial rather than pretend to be some warm and fuzzy lawyer on the Web.