Author: Deven Desai


What To Do With Left-Over Class Action Money

Adam Liptak has a nice piece in today’s New York Times about the growth of left-over money from class action suits. Judges are finding that after a case is complete there is often a large pool of money that is unclaimed, and the judge must then decide what to do with the money. In one case involving models the judge designated an eating disorder and a drug abuse charity as recipients of the money. The problem is that the Second Circuit and some academics think the plan to use cy pres as a way to dispose of the money has flaws. Judges are being lobbied for money which raises corruption concerns according to Professor Issacharoff of NYU. As Dean Levi of Duke notes, this role “is not a true judicial function and can lead to abuses,” and requests to give an instiution money as a cy pres award put judges in “uncomfortable” positions. The awards can be large. For example, according to the article, George Washington University Law School and The Illinois Institute of Technology have each received $5 million from law suit settlements. Whether judges are best-placed to dole out the money might merit some research and writing. In addition, some argue that the money must go to plaintiffs. Yet, if only a handful of plaintiffs end up filing the paperwork and receive a windfall the system is apparently flawed again. Nonetheless perhaps allowing such windfalls will provide incentives to others to claim their otherwise small payments. It seems that the system fails to provide a good way to get the money to the plaintiffs which alone suggests that judge should not be in this position in the first place. That alone might be worth some writing and thought.


Transition From Prisoner to Exonerated: Times Tracks Difficulties in New Life

The New York Times has interviewed 115 people whose convictions have been overturned based on DNA evidence. Apparently support systems for these people are often thin and in some cases the resources for those who did commit crimes are better than for those who did not: “despite being imprisoned for an average of 12 years, they typically left prison with less help — prerelease counseling, job training, substance-abuse treatment, housing assistance and other services — than some states offer to paroled prisoners.” The article details the compensation claims, the employment status, and the re-incarceration rates. I do not research in this area of the law but if anyone has studied this issue please send along a cite. The article highlights that once someone has the conviction some states are slow to remove the conviction after the error is found. In addition, earlier facts such as a college degree or a good job history are overshadowed. That point raises the question of when society truly forgives or forgets what came before. In these cases it seems that the vague knowledge that someone was convicted even though now found innocent is enough to hinder if not thwart efforts to rejoin society. Although the article focuses on what sort of compensation if any these people can receive and that issue is important, the Les Miserables aspect of being hounded by one’s past even if that reputation is undeserved poses problems. Dan’s work on online reputation and his earlier work about digital persons intersect here. The continual access to this information interferes if not prevents someone from re-establishing their identity, Whether society wants to provide the space to allow such acts may be what the lack of support for the exonerated points to.

The Times also has a multi-media, interactive feature that allows one to hear many of the voices and stories of the exonerated.


Ah the Good Life: Firms and Keeping Associates Happy

massage2.JPGIt seems that associates are not so grateful to be associates. At least the ones at the corporate or mega firms paying $160,000 plus a year are not so happy. But fear not, as the New York Times reports, law firms serve not only clients but their employees as well. So some firms have “happiness committees” to pick up these abused workers with candied apples and milkshakes when they least expect it. Others allow the use of concierge services to “pick up theater and sports tickets, the dry cleaning, take a car to the repair shop or even choose a Halloween costume.” All of these efforts are aimed at winning the talent war and providing a balanced life. A balanced life? The story reminds me of an on campus interviewed a friend had.

A partner sat across from a law student and told the tale. The firm had suspended the use of messengers to pick up dry cleaning. An associate came in his office and was furious. How dare the firm suspend this service? He had no wife to take care of these details! He worked hard. The partner beamed as he told his quick response: no committee meeting needed; policy revoked; messengers for everyone.

The friend smiled and appreciated the partner’s perspective: “We love and support an associate who gives us her life,” while thinking “Wow, you need a messenger to do your own errands? What kind of job is this?”

Of course megafirms lose talent all the time. And yes, the job is difficult such that high burnout rates are common. But the firms that offer training and a real shot at having a life might keep talent longer. Less pay might even be possible if a firm really cared about giving an associate a life. With the focus on profits per partner and other useless AmLaw criteria that concern will likely be given lip-service only. In addition, the rising cost of law school means that associates will likely want the high pay. Whether the law firm recipe for success means happiness for the young attorney is up for grabs. Still given the changes in training programs (albeit based on client pressures) and the need for happiness committees, maybe it is time to rethink what being an attorney means. One way to start the reflection is to remember there are many who struggle to have jobs and many who work just as hard if not more so to serve their deserving, non-corporate clients. Talent exists in these contexts as well but they battle in wars outside the zone of why didn’t I receive the in-house massage?


Great Name But Is It a Great Product? Thoughts on Amazon’s Kindle

library 2.JPGJeff Bezos is an impressive manager. The recent Harvard Business Review interview with him, The Institutional Yes: The HBR Interview with Jeff Bezos, (payment required) shows someone offering real insight about how innovation functions at his company. So when I saw that Newsweek had an article detailing Bezos’s latest take on books, I had to read it. The product is called the Kindle, and it is supposed to be the latest reason to think digital books will replace analog ones. One possibility of the new technology is that books will continually evolve as authors change their mind or update a text. This idea brings images of revisionist Greedo shootings; more on that later. Now back to the Kindle.

First Kindle is a great name. It evokes images of fire and light which seem to travel with thought and creativity (the Newsweek article suggests that was the idea behind the name). Plus for me it reminds me of spindle which has several different practical and quite useful contexts. Second, as opposed to Sony’s eReader, the Kindle seems more useful. Both use E Ink but the Kindle does much more than the eReader. One thing that stopped me from buying the eReader was that one could not mark the text. In addition, the Kindle allows one to change font size and search within the book. The search within the text feature could be great. Sometimes when I want to find a cite or know a passage exists but not its exact location Amazon’s search the book feature is most useful. Having the same ability for my library would be even better. Perhaps the most revolutionary idea is the wireless aspect of the Kindle. Now one can read a book and enjoy what Amazon calls its service. The upside of this service could be finding related information or having easy ways to look up a definition while reading. One option was that one might even annotate a book highlighting both accurate or inaccurate aspects of it (the article notes the idea of a Coulter book annotated for misstatements). As Gizmodo points out, however, the Kindle poses some problems as far as format and cost go (apparently the Kindle does not easily support pdf, doc, rtf, etc.).

Read More


A Song in Praise of Lessig

Could this be a new sign of reputation and prestige? The folks at monochrome have a video and song dedicated to Larry Lessig. The video is part of a Boing Boing TV two part webisode. The first part is a fun demonstration of a Curie effect heat engine. At about 2 minutes 30 seconds is where the song begins. Hat tip: Boing Boing


Pew on Race and Class Issues

NPR’s piece Redefining What It Means to Be Black in America examines a new Pew Research Center poll regarding perceptions within the African-American community about the community. From the summary: “African Americans see a widening gulf between the values of middle class and poor blacks, and nearly four-in-ten say that because of the diversity within their community, blacks can no longer be thought of as a single race.” The full report is here. The NPR story provides an overview of the poll which among other findings indicates that “67 percent of black men and 74 percent of black women think rap music is a bad influence on black America,” “37 percent of African Americans now agree that it is no longer appropriate to think of black people as a single race,” and “53 percent of black Americans now agree that ‘blacks who can’t get ahead are mostly responsible for their own condition.'” I have not read the report yet. There could easily be flaws in the methods used. Still, for those interested in race issues, my guess is this report provides numbers with which one will have to engage.


Veterans Day, World War I, Land Mine Legacy

Mines_warning_sign.jpgToday is Veterans Day. The day started as a way to honor the end of World War I and those who fought in it and now honors all veterans. World War I ended almost 90 years ago. Nonetheless, as NPR reports people in France still encounter unexploded, active mines some with mustard gas and sometimes deminers die trying to remove the dangers. The story focuses on the Western Front. People living in the area near places like where the Battle of the Somme occurred still find remnants of the war: “There’s not many places you can’t walk out … and pick up old rifles, munitions, shells of all types, grenades, [and] bodies. Sadly, we’re still digging up a lot of bodies.” Perhaps most amazing is the following:

“About 1.5 billion shells were fired during the war here on the Western Front. Colin and his colleagues bring in between 50,000 and 75,000 tons of them a year. At that rate, they’ll have enough work to keep them busy for the next 500 years.”

Using the law to limit the effects of war poses odd questions. The idea of a law of war that seeks to have humanitarian limits on conflict can appear oxymoronic. Still, considering the lasting effect of World War I in just one area, the idea behind the U.N. efforts and treaties to eliminate old mines and end the use of them in the future offers the possibility that if conflict occurs societies can try and maintain some semblance of mitigating effects on civilians.

Given the use of homemade mines in Iraq and the possibility that the United States will face similar encounters in the future the United States’ position on mines is ironic.

image source and license information: wikicommons

Read More


Bye, Bye T.V. and Movies, Hello Strike

Fordfight.jpgFor those who don’t know, the Writer’s Guild of America (WGA) is poised to go on strike. The deadline was midnight on Halloween. Reality T.V. shows will again overrun the airwaves and films that might have gone straight to video will have a better chance to be in a theater. The labor law here may become interesting. The WGA has indicated that any member must “submit to the WGA all unproduced material that’s been written for struck companies, plus the status of each project.” The studios are taking the position that the writer contracts negate the labor contracts. As Variety reports Universal’s letter states:

“Pursuant to the agreement between you and Universal, you may not provide or discuss with the WGA any information concerning scripts owned by Universal, including the status of such scripts, the identity of the author thereof, whether or not a rewrite or other writing services are being performed and, if so, by whom, nor supply copies of any such scripts (including spec or sample scripts) to the WGA,” Universal’s letter read.

“The supplying of such information would be considered an unauthorized disclosure of Universal’s confidential information, and the supplying of scripts would be considered a misappropriation of corporate property,” the letter continued.

So there it is. I am not sure how labor law interacts with this position. Nonetheless, the language is familiar. The studios claim that writing is property. They own the property and that allows them to control everything related to it. In addition, the confidential information aspect of the claim gives studios another way to claim that the strike interferes with a valuable asset. As the article notes several possible claims could be brought including, “inducement of breach of contract, interference with prospective economic advantage, misappropriation, conversion and unfair competition.” The WGA argues that the rules are part of enforcing its labor rights and so that it can have information to determine whether “strike-breaking or scab writing” claims have merit. In fact similar rules were in place in 1988 as part of a previous strike.

If labor lawyers have perspectives on this issue, I would love to know what they are. It seems to me that the public policy behind labor law would allow the guild to ask it members to provide this information. Still given the recent practice of the entertainment industry when it perceives something to be property, this strike could turn into another round in the property rights fights.

(Image source: Wikicommons)

Cross-posted at Madisonian.


Bad Boys, Bad Boys, Here’s How to Hide Your Stash? Ex-Texas Officer Sells DVD About How To Avoid Drug Arrests

USBP-SRT-New_Orleans.jpgLast December MSNBC reported that Barry Cooper, a former police officer who handled drug enforcement planned to sell a video called “Never Get Busted Again.” One former colleague said Cooper might have been “the best narcotics officer in the state.” Cooper claimed to think that the U.S. marijuana policy was foolish and that his video would be a way to show people how to protect civil liberties and to reveal injustice in the system. Maybe. Today, NPR has a story about the release of the video. It is called “Never Get Busted Again” and apparently uses the film style of reality cop shows. The article details how Cooper used indicators such as college bumper stickers, Vietnam veteran stickers, and race to decide whom to pull over and search for marijuana. He even trained police departments about the technique. So perhaps he really wants to show how the system is unjust. The motivations behind that goal are, however, not necessarily about legalizing marijuana and improving civil rights.

NPR noted that Cooper’s personal experiences fueled his current activities. He moved to east Texas and arrested a mayor’s son and city councilman which apparently upset local authorities. After he left law enforcement, a divorce followed. He was arrested for late movie rental returns and “His ex-brother-in-law, a constable, showed up with an order to remove his two girls. They put up such a fight, the effort was abandoned.” Those events are at least partially behind his decision to make the film which covers topics such as “Search and Seizure,” “Hiding Your Stash,” “Narcotics Profiling” and “Canines.”

Cooper plans a follow-up called “Never Get Raided Again.” The new movie idea has upset law enforcement as it could endanger officers on a raid. Given that some argue that books like the Anarchist’s Cookbook should be banned or for example in England ownership of the book is a enough to bring terrorism charges, it would not be surprising if someone tries to stop Cooper’s films from being published based on a public safety or terror claim.