Author: Deven Desai


“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.


Sending Up the White Flag?: Music Labels Moving Away From DRM


Today, CNET reports that the music industry is backing off of DRM in part because download sales are not at the numbers it desired. In a previous post I highlighted what appears to be a misuse of the DMCA. In that post I offered that copyright might be seen as protecting a business model and what may be wrong when that is the case. What’s the connection? I think that if the CNET article is accurate and the music industry is moving away from DRM because of failed sales, that shift supports the idea that DRM is not about copyright but about protecting an unviable business model.

To elaborate, one might say that in general copyright protects an otherwise untenable position. That is, one argument holds that promoting the useful arts requires that the law provide protection for those who generate copyrightable or patentable subject matter. The nature of the thing created means that without intellectual property protection these items would arguably not be created, as once one invested in the creation others could copy easily.

I am suggesting that one could also say that the law is protecting a business model (in intellectual property) that otherwise would not survive. Yet, specifically in copyright that claim of necessity may not be as true as before because of the broad swath that copyright covers. Film and other capital intensive copyright industries may have an argument for copyright laws and strong protection. They may even have arguments that if we want to protect the incentives to produce these creations, we should offer remedies for those who work to get around copy protections (I am not saying these arguments are correct; I am simply saying there may be a logic to them). But in other less capital intensive copyright industries the premise for protection may not be present.

In addition, one could argue the DMCA was forced through Congress by the copyright industry. That may be. Regardless, the question is what does the DMCA or a specific copyright protection do? Does it foster or adhere to the incentive premise or not? And one should ask is the premise in play when we talk about using the DMCA to protect non-copyrightable areas such as a business model? Put differently is the law fostering creation and/or competition or merely being used to protect a market’s status quo?

The music industry offers an example of what asking whether the incentive theory is in play or not might reveal. In other words does music fit the premise regarding incentives to create? As the CNET article notes eMusic has “surpassed 100 million downloads; it’s the second-largest digital music retailer after iTunes, all sans DRM” which might indicate that the claims by the copyright industry for the need for extra protection are unfounded. Cory Doctorow offers that the advent of radio had a similar outcry as live performers gave way to recorded broadcasts:

Performers lobbied to have the Marconi radio banned, to send Marconi back to the drawing board, charged with inventing a radio they could charge admission to. “We’re charismatics, we do something as old and holy as the first story told before the first fire in the first cave. What right have you to insist that we should become mere clerks, working in an obscure back-room, leaving you to commune with our audiences on our behalf?”

Furthermore I suggest that similar to Doctorow’s position on the value of a creator being known and shared rather than locking up access to his works, the creator’s “biggest problem is obscurity, not piracy.”

Read More


And So It Goes: Possible Reasons to Care About Saddam Hussein’s Execution

Dan’s post asks whether we should care. This morning I was reading arguments regarding whether the United States could or should hand Saddam Hussein over to the Iraqi government because of international law concerns. The New York Times reports that news agencies have been debating whether to show the event. Now CNN reports he is dead. As I watch CNN and write this brief post Anderson Cooper notes that the execution was videotaped and photographed and that CNN will review this media possibly to show it but with some warning regarding the contents before it runs the footage.

Perhaps the reason to care is precisely the sense that Dan offers: even when we might not care about the specific person and “the intentional killing of another human being [does] not generate deep discomfort” — maybe especially at that point — we should care and look to the questions of justice that we otherwise would consider. Isn’t this in part what Arendt is addressing in Eichmann in Jerusalem: The Banality of Evil?

In other words, maybe we should slow down and see how we treat even the most extreme criminals rather than rapidly move from debates about international law to whether we should show or not show the execution not to mention indulging in the voyeurisitc reports of each moment before, during, and after the execution.

Then again to borrow a phrase from Vonnegut, and so it goes.

PS For those wishing to read the 298 opinion it is available at the Case Western Law Web site.


Science vs. Free Will: Maybe Eating All That Holiday Food Wasn’t Your Choice


The Economist reports that some aspects of neuroscience indicate that certain notions of when we exercise free will may be on the ropes. The article notes the case of someone who was a pedophile only when a tumor was present. When the tumor was removed the behavior ceased, but when it grew again, the behavior returned. The article focuses on the idea that much of criminal law (“the criminal law—in the West, at least—is based on the idea that the criminal exercised a choice: no choice, no criminal.”) and theories of the market (“Markets also depend on the idea that personal choice is free choice.”) rest on the idea of free will. According to the article one implication of these discoveries is “The British government[’s move] to change the law in order to lock up people with personality disorders that are thought to make them likely to commit crimes, before any crime is committed.” And for the market notions about our choices regarding consuming “Fatty, sugary foods … addictive drugs such as nicotine, alcohol and cocaine [and] [p]ornography” may be suspect as well.

I think the article is correct when it offers

Science is not yet threatening free will’s existence: for the moment there seems little prospect of anybody being able to answer definitively the question of whether it really exists or not. But science will shrink the space in which free will can operate by slowly exposing the mechanism of decision making.

Nonetheless as science continues to chart better how we think and behave, the way the law addresses certain issues will necessarily be challenged. For example Rebecca Tushnet presented a paper examining decision-making and dilution doctrine at a recent works-in-progress conference. The paper raises some great points and questions about assumptions in the doctrine and what research supports or undercuts those views. (In deference to Rebecca I offer this quote from her regarding the paper “I’ll just ask that people recognize this as a draft, and if you want to cite or quote it, please just be willing to update the reference if and when it’s published.”)

I am sure others are pursuing analagous research so if readers have other examples of law and neuroscience, please share them. Then again if all of you simply want to kick back, relax, and run to left-over “Fatty, sugary foods,” I understand. You can’t help it. You have no choice. In fact I think I hear my something in my pantry calling and must go now.


Floyd Landis and A New Wrinkle on the Court of Public Opinion


Some of you may recall that Floyd Landis is fighting allegations by the U.S. Anti-Doping Agency and World Anti-Doping Agency that Landis used testosterone to win the Tour de France. Today’s L.A. Times has an article about the fight and of possible note to this readership the way in which Landis is challenging the process. Landis has posted 370 pages of documents including the lab reports related to the dispute. According the Times, “The result is a vigorous debate on Internet message forums and bulletin boards about the science underlying the charge and whether Landis … has been unjustly accused.” Even more interesting “Landis’ representatives say they have gleaned a wealth of clues about how to attack the evidence when the case goes before an arbitration panel.”

The approach is being called the wiki defense.

Landis’s move seems to accomplish at least two things: 1) He is forcing an otherwise closed process into the open and 2) He is tapping into a large pool of knowledge including experts in the field to challenge the claims.

If this approach works, perhaps the court of public opinion will enter a new phase where defendants use technology to reach a larger audience to plead their case (and I suppose possibly taint juror pools though this instance is an arbitration) and where perhaps better science and analysis will come to bear on cases. My guess is that those who see this as a total revolution in how cases will operate will overstate its impact. Nonetheless, I wonder what would have happened in the O.J. or Kobe cases if there were a wiki where evidence was available to the public. If the material online were already in the public record and then posted online, it may simply be a further aspect of television broadcasts of trials. Yet, if one were a poor defendant or under-resourced public defender and could use the Web to access scientific and/or legal defense knowledge similar to what O.J. or Kobe could afford that could be quite an interesting development for the defense bar.


Possible Empirical Support for Corporate Social Responsibility: What Would Uncle Milty Say?


Milton Friedman is famous (or infamous depending on to whom you talk) for many things including the position he takes in The Social Responsibility of Business is to Increase its Profits. In that article he asserts that corporate social responsibility is

a “fundamentally subversive doctrine” in a free society, and [] that in such a society, “there is one and only one social responsibility of business–to use it resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud.”

Yet along comes McKinsey & Co., not exactly a bastion of socialism, and asserts “The case for incorporating an awareness of social and political trends into corporate strategy has become overwhelming.” (the full article is available only to subscribers, sorry). McKinsey conducted a survey that found “Eighty-four percent of the executives from around the world who participated in a McKinsey survey agreed that their companies should pursue not only shareholder value but also broader contributions to the public good.” Could it be that these executives wish to offer, in Friedman ’s words, “hypocritical window-dressing” because “our institutions, and the attitudes of the public make it in their self-interest to cloak their actions in this way”? Or are the executives simply acting in congruence with Freidman’s observation that that it may be in a corporation’s interest “to generate goodwill as a by-product of expenditures that are entirely justified in its own self-interest.”

Read More


Suggestions Please: Gifts for Those Who Read (And Maybe Those Who Just Pretend)


A recent article from the Wall Street Journal Online details gifts for those seeking “High I.Q. Décor.” Apparently people buy skulls (for that Hamlet moment we all have sooner or later I guess) or books by the foot. Yes, you read that correctly: books by the foot a.k.a. “insta-libraries”:

sales of insta-libraries, including editions in French and German, are up 140% this year. “I’m not sure if those folks knew how to read those languages,” says Ms. Wyden [a specialist in books by the foot] of some recent customers. Prices range from contemporary fiction for $50 a foot to leather-bound classics for $400 a foot. … [One client] include[s] private-equity king (and board member of the New York Public Library) Stephen Schwarzman and his wife, Christine, who Ms. Wyden says spent $200,000 on books for their Park Avenue triplex, including pastel-colored books for a bedroom antechamber and movie-reference works and academic books for the family room. Through his spokesman, Mr. Schwarzman declined to comment.

The last part of the quote reminds me of scenes in Hannah and Her Sister’s and The Moderns where artist characters must face buyers interested in how much wall space will be covered by a canvas or whether the art matches blue walls. In a further moment of irony the article notes “Not everyone approves of decorating to look brainy. ‘Queer Eye’ interior designer Thom Filicia compares it to wearing eyeglasses without a prescription. ‘It’s creating a façade,’ he says.”

All of which leads to an offer and a request for help. As Christmas approaches and gifts are on the mind I offer a few possible books to buy for those who read or for your own pleasure with gift cards to come. In return I hope that the readership will share the names of books they recommend or books that have received acclaim but may not be so worthwhile.

To start things off I recommend my friend John Scalzi’s book Old Man’s War. It’s a science fiction novel, but I believe those who want to enjoy a good story filled with private military companies and more will like it. Don’t take just my word on this one: Instapundit liked it as did Eugene Volokh and Professor Bainbridge . Not to mention it was was nominated for a Hugo Award and won the Campbell Award for best new writer in science fiction. If you want a more recent book of John’s try The Android’s Dream.

For those interested in intellectual history John Gribbin’s In Search of Schrödinger’s Cat and Schrödinger’s Kittens and the Search for Reality are both great reads (although I should warn that quantum theory can be most unsettling to one’s view of reality). In addition, I have just started James Landale’s The Last Duel (in part because of confusion about a similar book Kaimi mentioned to me) and have enjoyed the interplay between the specific story of the duel in question and the history of dueling in general.

Last I suggest two all-time favorites: Haruki Murakami’s The Elephant Vanishes and Mark Helprin’s A Winter’s Tale . Both writers pay close attention to the use of language such that I believe anyone who enjoy’s excellent writing will enjoy them on that score alone. I can also say that each time I have given a copy of either book to someone they have enjoyed it, but Helprin’s work is a bit more accessible, and at least two friends have said they could not stop reading A Winter’s Tale once they began reading it.


Civil Procedure to the Rescue: Suing the Big Guys


The NY Times has a small entry about a frequent problem: lack of customer support for a computer (scroll down to “You Got Served” to read the entry). In this case, the customer apparently tried to use Dell Computer’s customer service resources for five months including 19 phone calls. When those attempts failed to result in a fixed or new computer, he sued Dell. The catch: he provided service of the lawsuit via a kiosk in a mall. Dell failed to appear, and the customer won a default judgment of $3,000.