Author: Deven Desai


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.”

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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.


One Step Forward, Two Steps Back?: Empirical Research Rising and Falling

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Just as Crooked Timber has a post about a new book that examines the impact of social science research and how the survey culture has affected how Americans view themselves, the California Supreme Court has heard a case regarding the extent to which the subject of such research can oppose the use of her information. The case is Taus v. Loftus, S133805. It involves the tension between research that may require lying to achieve its goals and the subject’s privacy rights. The defendants, Elizabeth Loftus and Melvin Guyer, are psychologists challenging the theory of repressed memory. When they first encountered the plaintiff’s information, they did not know her name but did have a case file with her picture. The article indicates that the file was “widely distributed in psychiatric circles.” The defendants questioned the story about the plaintiff’s repressed memories and investigated. The researchers’ report did not name the plaintiff but according to the article did include statements from the step mother that the plaintiff “had been a troubled teenager who slept around and used drugs.”

Now here’s the part that may sound familiar to those who followed the HP spying case: the researchers apparently hired a private investigator to dig into the plaintiff’s past and allegedly one of the researchers posed as the supervisor of the plaintiff’s therapist, David Corwin, to obtain some of the information. From the appellate decision the researcher claimed “‘she was working with Dr. Corwin and was actually his supervisor in connection with his study of [Taus].’” And there folks is the intrusion claim before the California Supreme Court. It doesn’t help that the appellate court had evidence pointing to the gathering of information from sealed juvenile court records either: “In light of these circumstances, the unanswered questions as to whether the Solano County files were confidential and, if so, how they were accessed may have a significant impact on Taus’s intrusion claim.”

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Skinny Law: Fashion Industry May Regulate Weight of Models


In September, The Spanish Association of Fashion Designers moved to ban the use of models who had a Body Mass Index (BMI) of less than 18 (note that the UN apparently suggests a BMI of between 18.5 and 25). Brazil’s fashion industry recently required that models be at least 16 and in good health. The Brazilian move came in part as a response to the death of Ana Carolina Reston who was 21 when she died of anorexia. Italy’s fashion industry is now moving to impose similar regulations. The move comes after the Italian industry’s lobbyist met with the government’s Youth Minister. It is a voluntary regulation imposed by the industry on itself. An aide to the Youth Minister indicated she favored a ban based on low BMI and said “In the Third World, if someone has an index of less than 18.5, they send in humanitarian aide.” Does this mean that similar to boxing, models will try to make weight before they can be on a catwalk (though models would I suppose gain to make weight)?

The article also noted “There are calls for a return to the slim but more curvaceous models of the 1980s, like Cindy Crawford and Claudia Schiffer.” This sentence seems to lend itself to further issues regarding the fashion industry, health, and personal image. One can imagine unhealthy skinniness and cosmetically enhanced body parts to meet this new criteria. Still for an industry often touted as being shallow and as offering inane notions of beauty, the move to address a real problem is fascinating and may even lead to more changes. I am not going to hold my breath on that last part, but one can hope.


“We’re going to buy Manhattan back one hamburger at a time,” – Seminole Tribe of Florida To Buy Hard Rock



Just a quick note. The Seminole Tribe of Florida is in the process of buying a major piece of the Hard Rock empire for $965 million from Rank Group PLC. The quote in the headline for this post is from tribe Vice Chairman Max Osceola (note: The Seminole Tribe was not the tribe who sold the island). The purchase “includes 124 Hard Rock Cafes, four Hard Rock Hotels, two Hard Rock Casino Hotels, two Hard Rock Live! concert venues and stakes in three unbranded hotels.” Curiously although the Seminole Tribe was the first tribe in the U.S. to enter the gambling industry (it started a bingo hall in 1979) and operates two Hard Rock casinos in Florida, the deal does not include the Hard Rock casinos in London or Las Vegas as those were already sold to others prior to this deal. As someone who teaches trademark, this set of affairs promises to foster at least one or two good problems or essay questions for my next class.

Regarding Mr. Osceola’s remarks about buying back Manhattan and comparing the sale of Manhattan to the Dutch to the current deal, the article reports that the Seminole Tribe has 3,300 members who benefit from the Tribe’s gaming activities. My guess is they are doing rather well. In addition, the article states, “U.S. tribes now have more than $22 billion in annual revenues from gambling, according to government figures.” Given that the Stuyvesant Town and Peter Cooper Village in Manhattan, was sold for $5.4 billion recently the Seminole tribe has some progress to make before it could do the buyback but then again I wonder if anyone thought they’d be this close either.


Copyright as Protecting a Business Model

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Apparently a cell phone company is suing to have the U.S. Copyright Office reverse a ruling that allowed people who buy cell phones to disable the software lock on the phone so that the phone could be used with other carriers. The company is called Tracfone. Many have noted that the DMCA goes well beyond classic copyright protection. I think that in some ways one could argue that as opposed to the government providing a system of incentives with all the attendant issues of intangible and nonrivalrous goods, this case shows that industries are using copyright law to protect business models not expressive works. At least one other person has said as much. The software at issue is a lock. Disabling it simply means one can use the item at issue as one wants. It seems that this sort of use (or abuse according to some) is simply a way to hinder competition and allow otherwise weak business models to survive. Whether one could argue that the changing landscape means that the classic form of the music industry is also a dying business model because of the drop in creation and even to some extent marketing prices, I leave for others to argue. Nonetheless, one could imagine a system that puts more money directly into artists’ hands and where rather than megastars we have a proliferation of more ministars who can actually earn a living as artists and indeed give up their day job. Yet it seems that copyright may have better arguments when capital is the question. If I recall correctly, Benkler (the Wealth of Networks) and Fisher (Promises to Keep), are two people who have delved into these questions and are worth reading. Even if a media industry is capital intensive and we give it copyright laws to protect it, that does not mean we are not subsidizing it, it may just mean that we have made a choice. If so, the question may be when should we subsidize an industry if at all?

In any event Tracfone’s complaint is here. Counts five and six cover the circumvention issues. The reply of the Wireless Alliance (with an assist by Stanford’s Cyberlaw Clinic) is here. It seems to be a part of what lead to the exemption that Tracfone is now opposing.


More on Santa, Beer, and Giving In General


So I was about to post about Santa’s Butt Winter Porter but students interrupted and Heidi beat me to it. I too would love to know what people think about her questions so thanks Heidi for framing them. (By the way the Shelton Brothers had a similar fight over the label to the right in Connecticut and the state dropped its opposition).

Moving on, in the spirit of Christmas two recent articles seem worth mentioning. First it appears that a man in Kansas City is a true Secret Santa. He has given out more than $1.3 million. The man started from practically nothing and lived in his car for awhile. He made millions on telecommunications but began his giving in 1979 before he made his fortune and in fact right after he was fired from a job. Recently he found out that he has cancer that has spread and receives expensive treatment to fight it. His response to this turn of events has been to train others to carry on his tradition. The Web site is here.

In a mildly similar vein, The Timesonline reports that the producers of the film The Constant Gardner have established a charitable trust of 100,000 pounds to help the remote regions where the film was shot. The trust is not shutting down anytime soon and apparently “consult[s] elders about the practical needs of their communities” as it decides on infrastructure. In addition the producers of the King of Scotland, a film about Idi Amin, the former ruler of Uganda, are considering establishing a trust in Uganda.


Semi-Secret: How U.S Intelligence Agencies Share Information

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The New York Times Magazine has an article called “Open Source Spying” that is worth a read. In short, the intelligence community has started to use blogs and wikis to enhance their work. The article sums up, “The premise of spy-blogging is that a million connected amateurs will always be smarter than a few experts collected in an elite star chamber.” One person involved with the project noted something that has drawn my interest of late: the nature of secret information may have changed. He observes that previously the intelligence game revolved around high cost acquisition of information and retaining it in secret on the premise that the more secret and secure it was, the more future valuable information one would acquire “But that’s now appropriate for a small and shrinking percentage of information.” Enter blogs and wikis and what might be called the world of semi-secrets.

The article details the way in which some members of the intelligence community used public blogs to get the fastest information on the Orange Revolution in the Ukraine as an example of the power of the Internet as an information tool. But that point is probably not so surprising. The most interesting part of the article details the way in which the intelligence community apparently uses private wikis and blogs to cure information gaps. The previous system that kept walls between agencies and that was blamed for a lack of understanding regarding the 9/11 attacks was only part of the problem. Even within an agency, reports or ideas could die on a desk because of hierarchy. To address these problems the intelligence world is using some link methodology a la Google and launching Intellipedia, “a wiki that any intelligence employee with classified clearance could read and contribute to,” and given birth to what I am calling the world of semi-secrets. In other words even in a partially closed system, the advantages of open information flow are being embraced such that what might have been a closely held secret is more valuable as a shared or semi-secret. Here’s one compelling tidbit on how the intelligence community has seen success with a more open approach to information:

Intellipedia proved itself just a couple of months ago, when a small two-seater plane crashed into a Manhattan building. An analyst created a page within 20 minutes, and over the next two hours it was edited 80 times by employees of nine different spy agencies, as news trickled out. Together, they rapidly concluded the crash was not a terrorist act. “In the intelligence community, there are so many ‘Stay off the grass’ signs,” Rasmussen [a knowledge engineer at the National Geospatial-Intelligence Agency who contributes to the project daily] said. “But here, you’re free to do what you want, and it works.”

The article notes that wikis are prone to error but this one does not allow anonymous posting so credibility is on the line as a potential control. But wait. Don’t order yet. A blog is running as well.

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