Author: Deven Desai


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.


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.


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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On Whose Authority?

Frank’s post, Dead Writer’s Society, at Madisonian about the use of authors’ names as brands well after they are dead is one that strikes close to home for me. I have just submitted my article on the topic, Property, Persona, and Publicity, to law reviews. So if someone wants to dive into issues of ownership and management of digital property and how the right of attribution as a trademark or trademark-like right offers too much power to heirs, take a look. I could go on but there are other posts to note.

So part of Frank’s post and an interesting point about the dead man writer is whether “readers might start caring less about the original author regardless of whether the contracted books are better or worse than the original authors’.” That idea reminded me of Dave’s piece about Wikiscan, and Neil’s post on wikipedia, consensus, and truth. In short, where does authority lie? Is consensus the key? Neil’s idea that facts will sort well but less concrete notions on Wikipedia will always face problems is probably right. Still my friend John Scalzi had a run in with “facts” when he tried to write about a dead writer, Fred Saberhagen. Despite using Harlan Ellison as a source, the update was not allowed. Maybe the wikiscan tool that Dave highlights will allow for more trusted sources and better posts. Yet, I seem to return to Zittrain’s Generative Internet whenever ideas of authority and trusted sources come up. I wonder whether the drive for some ideal, pure version of information or a safe version will push out the open, collective knowledge systems such that the quality of information will go up, but breadth of view will go down. Then again maybe Neil has it right: relatively innocuous facts will survive, but the harder questions may need a different forum.


Max Roach, Jazz Great Dies at 83

Max Roach, a key figure in the growth of bebop, died today in his sleep. He was 83. Why does it matter? Well, many can explain his contribution to jazz, better than I. For me, jazz was one of the bridges to my father. From there it has grown into a point of joy. From Preservation Hall style jazz to bebop to hard bop to cool to fusion and more the art is, as so many have said an Amercian one. As for the law, one can look to the work of K.J. Greene for race issues and music, but I think a simpler way to consider jazz applies. As schools start classes again, trials pick up speed, and life plows ahead, consider jazz as a way to pause and appreciate the varied rhythms of life. It does not have to be jazz, but attorneys who find a way to take in life and step back from the warp speed at which law seems to move are likely to be better at their jobs and quite possibly enjoy themselves too.

Still for those needing more law-related reasons to listen to Mr. Roach, the article notes “Roach also was a civil rights activist who brought politics into his art. In 1960 he created “We Insist! Max Roach’s Freedom Now Suite,” a seven-part suite featuring vocalist Abbey Lincoln that addressed slavery and racism in America. Some of his work with Ms. Lincoln is on YouTube (a search for Max Roach YouTube should do the trick to find several clips).

Here is a clip of Mr. Roach and his quartet in full glory, playing all out.

For those who want more, there are two clips below the fold. One is called Mr. Hi-Hat. Notice Mr. Roach’s nod to Jonathan David Samuel Jones for his mastery of the hi-hat. Mr. Roach was known for “shifting the time-keeping function to the cymbal, allowing the drums to play a more expressive and important role and, in the process, contributing to the shift of jazz from popular dance music to an art form that fans appreciated sitting in clubs” yet gives Mr. Jones his due. It reminds me of the night I saw Branford Marsalis and Sonny Rollins play a double header concert in Berkeley. Brandford started, was cool in a nice suit, and played some excellent jazz. He ended and said roughly that he was able to do two of his favorite things that night, play for an audience and get a lesson from a great. He then told people who might be foolish enough to leave to stick around. Fifteen minutes later Sonny Rollins came out. He wore RayBans, a short sleeve bowling style shirt, and blew the roof off the house.

The other clip is a drum battle between Elvin Jones, Max Roach, and Art Blakey. (Oh yeah, check out Art Blakey’s Mosaic and by that I mean just buy it.)

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Well Done: Student Wins Criminal Appeal in the 4th Circuit

Just a quick note on how law students can accomplish much (but it takes time, effort, and persistence). reports that Meghan Poirier, a West Point graduate and recent graduate of Wake Forest University School of Law, has won an appeal on a criminal conviction for possession of a fire arm. The defendant was a felon who had to grab a gun from his wife so that she did not shoot him. He tried to turn the gun in to the police but his wife cut off his calls. When he turned the gun in to his boss, the police were there based on a call from his wife. His first attorney instructed him to plead guilty, because he believed that all the police had to show was possesion of a firearm by a felon and that there was no justification defense. Thanks to Ms. Poirier’s work Judge Paul V. Niemeyer was able to write that “It was patently inaccurate for Mooney’s counsel to have advised Mooney and to have represented to the court that no such defense was ever available.” An assist goes to Professor John Korzen who runs the clinic but he states, “She did it all. She did the research and drafting of the briefs. We had three or four practice rounds of oral argument.” Ms. Poirier has just taken the bar and returns to the military to work within the Judge Advocate General corps. May she continue to do well in her career.


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.