Author: Deven Desai

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The Right to Bear Ar–, Or Is It Access the Internet?

scissors2.JPG CNET reports that the government of Burma a.k.a. Myanmar has apparently cut-off Internet and cell phone access as a way to suppress information about the protests occurring there right now. The claim is that an undersea cable is damaged but given the convenience of such a coincidence that claim is being viewed with suspicion. As many know the information that has come through has been via cell phones, blogs, and text messages. Apparently some have even used FaceBook or e-cards to get messages out.

All of these events make we wonder whether the Bill of Rights would explicitly state that there is a right to free access and distribution of information over the Internet had the American Revolution occurred today. Now before everyone gets into a dither about the nature of the free press and what the First Amendment encompasses, I am suggesting that the situation described above shows the precarious nature of sharing information given the choke-points in place today. In other words, it seems that the benefits of technology also offer a much easier way to clamp down on society. Many have made this observation in the privacy context. Neil Richards’s post about the First Amendment gets to this point as well. We must consider what is at stake in today’s context. Put differently, could it be that the individual’s ability to access and use the Internet is now one of the key ways individuals serve to balance the power of the state?

Cross posted at Madisonian

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Stay Tuned: Judge Mukasey (Ret.) May Be Nominated For Attorney General

Here’s a quick heads up. Judge Michael B. Mukasey former Chief Judge of the Southern District of New York looks to be President Bush’s nomination to replace Alberto Gonzales as Attorney General. Judge Mukasey has a curious background. He was a federal prosecutor with Rudy Giuliani and has ties to his campaign, served 19 years on the federal bench, and according to some interviewed by the Washington Post, is not well-known or likely to be favored among conservatives. Perhaps his rejection of the claim that Jose Padilla could be held indefinitely as an enemy combatant, which resulted in the case being transferred to South Carolina, upset some folks. Still as the Post notes, William Kristol of the Weekly Standard has written an editorial defending the choice. Kristol suggests that even though Judge Mukasey denied the government’s motion in Padilla’s case he will be acceptable to conservatives. To support this position he quotes Andrew McCarthy’s statement from the National Review Online:

He deftly handled the enemy-combatant detention of Jose Padilla (recently convicted of terrorism crimes), forcefully endorsing the executive branch’s wartime power to protect the United States from an al Qaeda operative dispatched to our homeland to conduct mass-murder attacks, but vindicating the American citizen’s constitutional rights to counsel and to challenge his detention without trial through habeas corpus.

I can’t say I know enough about the man at this point. As Kristol posited, the right may be choosing someone who will not be challenged (Sen. Schumer of New York seems to like the choice) and do little harm from the right’s view in the year and a quarter left in this administration’s term. We will see what happens when the announcement is official which is predicted to be Monday.

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Shifting Out of Neutral: Net Neutrality Defenders Fire Back

networkcable.jpgThe net neutrality debate continues. Groups such as The SavetheInternet Coalition have some resources on the issue. As an advocacy group, the Coalition offers some statements about the issue that may be, shall we say, skewed. Recent attention from our own Frank Pasquale and Boing Boing show that the issue is not resolved and better information on the topic is needed. Enter legal academics who have been addressing the issue in journals. One of the more vocal participants against net neutrality is Christopher Yoo. Although others may have fired back, Brett Frischmann and Barbara van Schewick’s paper, Network Neutrality and the Economics of an Information Superhighway: A Reply to Professor Yoo, on the topic merits a read. One great thing about the paper is that apparently Professor Yoo discussed it with the authors. Hopefully, these sorts of exchanges will inform the policy debates and help fashion a solution less pushed by lobbying spin and more driven by the heart of the issue.

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Cheaters Here, Cheaters There, Cheaters Everywhere?

aceupthesleeve2.JPGDave’s post about New England Patriot’s head coach, Bill Belichick, being fined for apparently cheating points to a larger question. What does it take to stop cheating? Sure Bellichick has offered the obligatory apology saying how it’s his responsibility, and he made mistakes. He also said “As the commissioner acknowledged, our use of sideline video had no impact on the outcome of last week’s game. We have never used sideline video to obtain a competitive advantage while the game was in progress.” Ah contrition or is that no harm, no foul?

In Formula One racing the fine is much larger. The McLaren racing team must pay $100 million for spying and loses all its team points for the construction title; the drivers are allowed to keep their points and are eligible to win the driver’s title. On a related note, remember James Frey? He had a moving, personal memoir about his struggle with drugs and his wild days called A Million Little Pieces. No. Wait. That was a crock. No matter. Frey now has a new novel coming out. Oh and what about the book that forced the publisher to refund duped readers’ money? It sells around a thousand copies a week.

So where does cheating get punished? The cases above seem to agree with Yahoo columnist Dan Wetzel’s view that “Cheating is everywhere” in sports and that fans really don’t care about cheating. Instead he offers they “want victories and nothing else.” He sums up “Nobody cares. Nothing matters. If you’re not cheating, you’re not trying. Just win, baby.” Wetzel seems a bit overboard, but not too much. More worrisome is the possibility that society really has changed its view of cheating. Sure if one gets caught red-handed, the knee-jerk reaction is talk show emulating outrage and narcissistic assertions regarding how it affected and hurt you. False contrition ensues and allows everyone to feel better. Soon the cheater is redeemed, perhaps even embraced. A true confession and repentance is a powerful phenomenon. The slaps on the wrist and farces of today fall well short of that. Whether the law and the lack of accountability reflect or feed the view that one should win at all costs is a matter for another time, but I do wonder.

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Best Practices for Lawyering: Parrish and Yokoyama on Effective Lawyering

effective lawyering.jpgAusten Parrish and Dennis Yokoyama of Southwestern Law School have a new book out, Effective Lawyering: A Checklist Approach to Legal Writing & Oral Argument. The book takes its own advice. The writing is tight, and each section is almost sparse. Then again the introduction is quite clear. This book is designed as a tool for lawyers and students. It is not an extensive, exhaustive handbook. Instead, the book offers best practices. If one does not know the practices, the book helps identify them. If one knows the practices, the book presents a way to ensure that one follows them.

The first chapter sets forth the elements of effective writing and concludes with a checklist. The next chapters address trial court briefs, appellate briefs, effective oral arguments, interoffice memoranda, letter writing, and academic writing with checklists for all the topics. Each chapter has tips specific to the topic being covered. The tips are a great touch. They reveal fundamental insights that experience teaches and one usually must learn the hard way. The writing samples allow the reader to have a more solid grasp of the lean presentation of writing methods, and the bibliography provides the necessary readings for those who seek greater instruction on any of the covered topics. Without the samples and the bibliography, the text’s usefulness would be much less. With them, however, Parrish and Yokohama present a book that aids the novice, the expert, and anyone in between who strives to improve and maintain high quality skills in writing and all aspects of lawyering.

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A Fellow of Infinite Jest? Platinum and Diamond Skull Sells for ₤50 Million

yorick.JPG

Alas, poor Yorick! I knew him, Horatio: a fellow of infinite jest, of most excellent fancy: he hath borne me on his back a thousand times; and now, how abhorred in my imagination it is! my gorge rims at it.

An artist has taken the skull of a man who died in the 1700s, made a platinum cast, kept the original teeth, and encrusted it with “8,601 near-flawless pave-set diamonds, including a large pink diamond worth more than £4m in the centre of its forehead.” The Financial Times reports that a group of investors that includes the artist has bought the skull so they can put it on tour and then sell it at a later date. The event almost makes Helmsley’s trust for her dog seem like a commonplace and reasonable act.

The claim is that the piece, “For the Love of God” symbolizes “the maximum celebration you could make against death”. Mr. Hirst has also said it is the “the ultimate victory over death, the most you could get from decoration, because our society loves money and wealth”. Infinite jest indeed.

The only pictures of the skull I could find are Getty Images and I think restricted. You can see it here. Besides I think Hamlet’s nod to his dead friend would be less compelling if it were a shiny, enhanced version of his skull. Having just seen an excellent production of the play here in San Diego (and I recommend the Old Globe summer Shakespeare performances should you be in San Diego during their season), I’ll take the older artist’s view that money and wealth seem to have little to do with victory over death. Last I heard, death and taxes are still inevitable. Which is not to say people won’t try to avoid both, but really it seems to be a rather quixotic quest.

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Look Left, Look Right, Look at 100 People Around You and There Are Guns for 90 of Them

shotguns2.JPG A new study shows that the U.S. has 90 guns per 100 people. Let me say that again 90 per 100. That makes us the most armed country in the world. As Reuters reports there are other ways to think about firearm ownership: People in the U.S. own 270 million of 875 million arms in the world and of about 8 million firearms made each year, 4.5 million are bought in the U.S. Leaving aside the whole gun control question, exactly what are Americans worried about? I mean that is a large amount of guns. Do these people know something the rest of us don’t? Furthermore, I am fairly certain that the people I tend to encounter do not own arms. Maybe I need to get out more and meet some new people (likely a true statement), but really who owns all these guns? My guess is that a gun owner in the U.S. tends to own several guns rather than just one. If so, are there a whole bunch of people packing concealed heat? Or perhaps there are enclaves where Cold War-style bunkers are filled to the brim with arms. All jest aside the report shows that some of the presumptions about firearm ownership may be off.

For example, Yemen (61/100) is second to the U.S. on a per capita basis and Finland (54/100) is third. Finland? I suppose Russia next door is something to worry about but still. The article notes that the perception that many poor countries are armed and violent is misleading. As the director of the Survey noted “Firearms are very unevenly distributed around the world. The image we have of certain regions such as Africa or Latin America being awash with weapons — these images are certainly misleading.” In fact the director pointed out that there is a correlation between wealth and firearm ownership. So it may be that as countries develop the demand for and acquisition of firearms in those countries may increase. (Oh yeah, new markets!) Last, the numbers about the recent increase in overall firearm quantity and lack of registration are impressive if not chilling. Five years ago there were about 640 million firearms, now there are 875 million. In addition, of the current 875 million firearms, about 650 million are in civilian hands and only around 12 percent are registered.

I’d like to say more on the topic, but the last shootout in Mr. and Mrs. Smith is on and man, it has some booms. The Blues Brothers riff (Girl From Ipanema playing in the elevator while mayhem awaits outside) mixed with the pseudo-Butch Cassidy ending — the shed in the Costco-style warehouse instead of South America, a battle that has a complete array of weapons from knives to handguns, shotguns, machine guns, and a grenade launcher, and all to Joe Strummer & the Mescaleros’ “Mondo Bongo” as Brad and Angelina survive the absurd odds (can’t kill heroes in modern film) — is just too cool.

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Intermediary Liability and Animal Cruelty: Humane Society Sues Amazon

rooster2.JPGIt seems that everyone wants to stop information that is allegedly bad. The present example: the NY Times reports that the Humane Society of America has sued Amazon for selling the cockfighting magazines The Feathered Warrior and The Gamecock (seriously, those are the names). The magazines carry ads “for blades that attach to birds’ legs” and the Society claims that in essence Amazon is selling a catalog for illegal goods. Amazon has offered the online cha-cha 1) censorship and 2) can’t ask us to police what we sell. As of next summer when Louisiana’s ban goes into effect, cockfighting is illegal in all states. Nonetheless, “possessing cockfighting paraphernalia is legal in 39 states, while possessing fighting birds is legal in 17.” Which might be why a lawyer for one of the magazine’s asserts that “federal law prohibit[s] promoting cockfighting or shipping birds or gear across state lines, [but] the advertisements themselves were aboveboard.”

I have no idea how one distinguishes between fighting birds and non-fighting birds. Furthermore I don’t think I want to know exactly what qualifies as paraphernalia as the oddities of blades or who knows what attached to animals for sport. Nonetheless, it seems that pinning down what qualifies as either is hard to do. As far as the claim that the Humane Society does not want to censor, the article notes that the Society’s president has named Amazon as facilitator of the activity stating in an op-ed “if ‘your passion in life is watching tormented birds tear each other to pieces, in a bloody pit,’ then “Amazon is the place to go.’” The tactic at issue seems to conflate information with people’s behavior. It forgets a key point about information.

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Firm Decides To Put Billable Hours On Hold

empty ledger2.JPGThe cry that the billable hour is dead or makes little sense seems to go up every year with little action taken, but Ford & Harrison, a good-sized firm in Atlanta, has taken the idea to heart and decided to suspend its minimum billable hour requirement for first year associates. The firm claims that first year associates will have more time to train without worrying about whether they meet the billable minimums. As such they will be able “to spend their time observing depositions and witness interviews and attending hearings and litigation strategy meetings.” If it works, the idea should keep clients happy as well (a stated goal of the program). The firm pays $125,000 for incoming associates which is less than the $160,000 large firms in larger markets pay. Still I wonder whether a large firm could emulate the model to its advantage. Of course the cost of law school and living costs in a large city matter, but I wonder whether a first year would take the lower pay if it meant less billable hours and more training.

Now, before law students get excited by the idea of less work, consider that the amount of work could be the same or even increase. The key difference is the quality of the work may improve. After all those who end up on a year-long document review could bill eight to ten hours a day, be paid well, and have less stress. In contrast, the model Ford & Harrison is using is based on medical training. Those folks are paid much less, work quite hard, and then are rewarded with more of the same if they want to specialize. I think the analog to medicine has flaws (for one thing patient and client management do not map onto to each other all that well). Nonetheless, the idea that one could have a slightly more sane life, enjoy the job, and not worry that the learning and training one must have in the first year—if not years—of practice were somehow counterproductive, is a great one. Hopefully, Ford & Harrison will lead the way. It’s an idea to watch.

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How To Generate Nonsense Controversy

Mussolini2.JPG Dan’s post about Four Books A Year noted a recent poll about U.S. reading habits. One may question the survey and ask what about other reading material that may fill any alleged gap, but the attempt to turn the poll into a statement about whether one party is somehow deeper than the other is foolish. Unfortunately Pat Schroeder has tried to do just that by blaming Karl Rove for focusing on simple slogans and claiming that liberals “can’t say anything in less than paragraphs. We really want the whole picture, want to peel the onion.” As Dwight Garner put it “Tony Fratto, more or less knocked that one out of the park: ‘Obfuscation usually requires a lot more words than if you simply focus on fundamental principles, so I’m not at all surprised by the loquaciousness of liberals.’” Furthermore, it is not as if Democrats have avoided a good slogan (remember “It’s the economy, stupid.”?) It is just that the Republicans have been better at using them. There may be a host of reasons for that of late but to say that conservatives don’t read is silly or that reading somehow prevents myopic arguments is silly. Just go to San Francisco and you will see what I mean. I love the Bay Area, but honestly reading does not cure foolishness. Indeed reading does not cure folly for either side of political spectrum. As the movie A Fish Called Wanda put it:

Wanda …you think you’re an intellectual, don’t you, ape?

Otto: Apes don’t read philosophy.

Wanda: Yes they do, Otto, they just don’t understand it.

Now there is something to the idea that the Republicans have been better at framing the debate. The recent excitement for Lakoff’s Don’t Think of an Elephant: Know Your Values and Frame the Debate–The Essential Guide for Progressives (Lakoff is O.K. but not as interesting as Richard Lanham or anything Kenneth Burke has written. For that matter take a look at James Boyd White’s work especially When Word’s Lose Their Meaning: Constitutions and Reconstitutions of Language, Character, and Community) and the writings of James Carville have tried to offer better ways for Democrats to use language to their advantage. Ironically (and somewhat painfully), Ms. Schroeder missed that part of the literature and went for an inaccessible metaphor (or perhaps worse one that resonates only with a small chunk of true believers). To illustrate this idea consider the work of Frank Lutz of whom Al Franken wrote “Language is like music. Unfortunately, the Republicans have a Paul McCartney and we Democrats got stuck with Yoko Ono.”

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