Author: Deven Desai


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.

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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.

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“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.

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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.”

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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.