Author: Deven Desai


Not Everyone Wants to Play Google’s Library Game

oldbooks2.JPGIt seems like Google is unstoppable. Frank’s recent post about Google and his talk on the subject reminds that Google is everywhere. Dan’s new book is necessary in part because of Google and other search engines. Google has even popped up offline. Rumors of taking on phone technology abound. And as many know Google has set its sights on books too. As Frank noted Siva Vaidhyanathan among others has questioned Google’s control of information. Vaidhyanathan’s paper, The Googlization of Everything and. the Future of Copyright, which appeared in the U.C. Davis Law Review, offers that in the book realm Google’s actions may trigger a large step backwards because of the nature of fair use.

As Vaidhyanathan admits he only highlights the danger of one court or Congress listening to copyright corporations and restricting the potential of information sharing that the Internet and the book project offers. That alone merits consideration. I do think, however, the paper makes some overstatements about search issues and “stable texts like books.” He argues that Google’s search in books lacks neutrality, and its utility alone will not save it because:

It is hardly an effective or comprehensive research tool. It generates too many ridiculous results for simple searches. It cannot screen out bad results very well. And Google offers no simple information-seeking training to its customers. Searching the text of books is rarely a better way to search than searching among books. Books are discreet documents that operate with internal cohesion more than external linkages.

This idea seems to suggest that those who use Westlaw or Lexis cannot find material well. I think Google supports some level of Boolean searches and Google could easily add subject matter indices to mimic library catalogs. In short, focusing on small issues such as improving the utility of the search detracts from the bigger point. Google can fix or enhance the searches. The improvements will not necessarily stop one of the key points made in the paper. True believer arrogance in the face of laws that see the world in quite a different way can lead to bigger problems. Here Google’s contract which gives libraries an electronic copy in return for participation runs into copyright law for the law is not sure what to do with such copying other than say it is not allowed.

Thus even though some libraries reject Google’s onerous terms, Google’s acts may foment a poorly written ruling or law that hinders other movements which seek to extend access to knowledge. For those interested in one such movement check out the Open Content Alliance.

Cross-posted at Madisonian


False Cries of Foul? U.S. Law Firms in London May Have to Report Financials

euromoney2.JPGAs LLPs, law firms in the U.S. do not have to share financials with the public. Maybe they should. For example, it appears that law firms that use a business form similar to LLPs but are based in the U.K. must disclose their financials. U.S.-based LLPs that have offices in London do not, yet. A proposal under consideration would change this rule so that the U.S.-based LLPs would have to disclose their financials. That possibility met resistance in 2001 and seems to be upsetting some firms again.

Law firms make an incredible amount of money and have enviable margins. On one hand, firms seem to love being at the top of the AmLaw lists and being the highest revenue firm or highest profit per partner firm. So now when a firm like Reed Smith protests the possibility of having to disclose the numbers there is some irony. Some of this information is available through the AmLaw rankings. For 2006, Reed Smith comes in at 31, based on its 2005 gross revenue of $562,500,000. If the desire is to remain so secret — in the firm’s words “we would prefer to keep our financials private. Many of our U.S. counterparts would feel this way too.” — then how is it that AmLaw has these figures? Granted it is not the full financials but someone is likely giving the information to and others. Want to know profits per partner for the firm in 2005? Read below the fold. Hint: The firm provided the numbers.

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Suing the EPA to Act

AirPollutionSource.jpgSeveral states including California and a block of states in the Northeast are preparing to sue the EPA to act. The issue is the EPA’s delay in granting waivers so that states can use their power under the Clean Air Act to regulate automobile emissions. California has been waiting two years for the waiver. The idea is to ensure that the agency acts, but it appears that the agency could rule that the state action is not authorized. As David Doniger, an attorney for the National Resources Defense Council, put it “The real issue is, will [the EPA’s administrator] block the states or let the states go forward?” In addition, a group of 10 states are issuing regulations regarding power plants under a Regional Greenhouse Gas Initiative. New York is part of that group. Its regulations are to take effect next year. That strategy helps wind and solar power producers and will make it harder for coal-based producers. The Times article noted that the largest investor-owned energy producer in New York backs the idea and does not operate coal plants in the state. In contrast the Independent Power Producers of New York, a trade group that includes coal-based power producers, opposes the state regulations. This quote from the group’s CEO is interesting for its use of fear and the idea that some other state would gain from the regulations.

“We don’t want to put more burden on the rate payers of New York, and the last thing I would think this governor wants to do is send the message that investment should go in other states,” said Gavin J. Donohue, the group’s chief executive. “You can build plants in other states and send the electricity back into New York.”

If one wanted to study a simple way to try and hit the people this quote offers a decent, albeit transparent, example. First claim that costs will go up for individuals. That may be true, but the long-term as opposed to short-term cost question is lost in this framing not to mention that these are elected officials who just might have accounted for the perception of near-term rate increases. Second, indicate that investment will flee. Sure, coal-based and other methods of power production that generate greenhouse gases may leave. Then again, those companies interested in areas favorable to other energy production may rush in and invest more. Furthermore, they will have to build new plants just to be able to offer their energy; that may require investment. Third, suggest that one’s business is impervious because there is always a market and others will take in the producers only to allow them to sell back to New York. This last point raises an issue of whether some states lack the ability, will, or interest to stop the coal producers and thus they will allow the energy producers to generate negative effects in any event. If so, then the argument seems to be let us produce in your state and at least get the investment benefit, because we will pollute elsewhere, further global warming, and still sell our energy so nyah (imagine a tongue sticking out here). It is unlikely that the last analysis is exactly what the group wanted to say, but it seems to be a possible interpretation.

Last, I am not an environmental law person so any thoughts about the issue from the regulation to the implications of suing the EPA to act to the negative externality issues in this context are appreciated.

Hat Tip: Slashdot

(Image Source: Wikicommons)


More Firms Cut or Change Billable Hours for First Year Associates

cashinhand2.JPGDan has posted thoughts on the problems of billable hours, Frank noted students trying to impact the way firms behave, and I have suggested that one’s firm plan to cut first year associate billables completely is one to watch. Apparently a shift is indeed occurring. In the past month one firm, Strasburger & Price of Dallas, Texas, has decided to modify the first billable requirement and others are trying changes as well. Strasburger has cut billables to 1,600 from 1,920 but “will require incoming associates to spend 550 hours shadowing senior attorney mentors, participating in training sessions and working on pro bono projects.” So the total is now 2,150 which may be less than the 1,920 assuming that the previous figure expected associates to shadow, train, and perform pro bono on top of that base. A couple of firms have decided to offer a track with less hours and less pay. Whether choosing the fewer hours track allows one, at least as policy, to be on the same partner track as others is unclear.

Perhaps the most radical move is from Howrey which is trying to implement a pure performance-based model. In addition to hours, the factors to be examined will include “writing, deposition, trial practice, and client presentation skills.” Although a partner is supposed supervise associates and make sure they have opportunities for such experiences, this model seems likely to run into the problems of that the reduced billable strategies seek to address. Partners simply become too busy to oversee such programs. Another problem is that this group will come from a system where lack of training (or training by fire) was the norm so a reference to how or why they should focus on such duties could be missing. One more question is what happens when an associate is paired with a poor match? Like assigned advisors in school, those situations can be awful. The mentor may be bad at the mentoring or may not want to do it. The two participants may just not have personalities that work well together.

In any event, for those of you interviewing as students or employers it may be that the legal profession is experiencing a change. Insofar as a new law-school graduate can find a position that offers more chances to learn and experience the complexities of the practice of law with less pay, take that job. You will probably be happier. You may even work more just because you like the work. And you will gain skills if not wisdom that will open career opportunities both within and outside the firm where you began.


Melville the Blogger?

mobydick.jpgI have yet again started reading Moby Dick and think Melville may be an early blogger. Previous attempts to finish the book stalled as the details of whales and whaling life posed walls to enjoying the book. Trying to digest all the information packed into each chapter and connecting them to the larger aspects of the book in a few sittings felt rushed and unsatisfying. This time, however, I took a different tack. I searched for some critical reviews to guide me and that helped. But the structure of the book offers the key to my current enjoyment of the book. The chapters are quite short. One can read one or perhaps two chapters a day quite easily. So just as I sometimes read short story collections (I recommend The Elephant Vanishes and Strange Pilgrims) to see a range of an author’s thoughts and complete a reading in a short time, I chose to read the book in the same way.

That is when it dawned on me that Melville’s Ishmael is similar to a blogger. Most of the chapters are first person. He seems to share whatever is on his mind. Some passages advance the story; others provide details (maybe inordinate details) about rather peculiar interests. Blogs often have a single topic. They offer one person’s view of the topic and sometimes wander into musings about the world and the universe. One can read them in short bursts. Over time one gains a sense of a voice, a view, and sometimes a vision. Reading Ishmael’s account of the world as he goes from the New England whaling community to the sea as a journal of what catches his eye as worth documenting freed me to enjoy the book. Taking each chapter as a discrete unit or post allowed me to appreciate the way the recitations of details had embedded observations about life. Those hidden and seemingly untethered ideas often linked to later ideas. Like a blogger’s writings some of the details may mean nothing. They may amuse or intrigue or educate for a moment. That moment passes. Still some musings, or even just a sentence in the musings, may stick and compel further thought or action. Sometimes the text may not connect with the reader. He may put down the book or stop reading the work for some time. The text remains. If the reader chooses, he can pick it up again and find that as a new reader with new experiences and understandings the text is new and speaks more directly to him. So much so that his promise of only a chapter or two a day becomes a way to savor the text and extend the time it takes to finish it which he still hopes to do.


Tax and Its Relationship to Slavery

American Taxation.jpg On Monday Professor Robin Einhorn of U.C. Berkeley gave a talk at my school about her recent book, American Taxation, American Slavery. Professor Einhorn’s book challenges some of the stories about the American aversion to taxation. As her essay “Tax Evasion and the Legacy of American Slavery” argues, the distrust of taxation has “more to do with protections for entrenched wealth than with promises of opportunity, and more to do with the demands of privileged elites than with the strivings of the common man.” The topic is provocative. The political history Prof. Einhorn sets forth shows how the institution of slavery influenced the Articles of Confederation, later state constitutions, and tax policies. Tax reveals the problem because of the fear that slavery could be taxed out of existence. If controversy tempts you to an area, this book may be for you as it has generated some debates within the legal history world. On a final note the topic reminds me of Jack Chin and Randy Wagner’s paper, The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty which is also a fascinating read.


Welcome to the Surreal: Cisco Execs Arrested in Brazil for Tax Evasion

About 650 agents executed 93 search warrants, arresting 40 people allegedly involved in the ring to avoid import, sales and corporate taxes.” And the winner of this statement is allegedly Cisco Systems.

The whole story reminds me more of the drug tales from the eighties than an IT scam. The police seized “$10 million in merchandise, a commercial jet, 18 vehicles and the equivalent of nearly $400,000 in Brazilian and U.S. currency during the raids.” I suppose if anyone wondered how much the information economy matters this story is an odd but telling example. The Brazilian government conducted a two year investigation in which they tracked sales shipments from tax haven countries. In all, about $833 million in tax revenue was lost because of the scheme. Cisco’s U.S. office is cooperating with the investigation. Still, the size of the scam is impressive. Most likely Cisco will remain silent, then conduct some sort of internal investigation, and finally issue new best practices to show its dedication to fighting corruption within the company.


Regulating Private Military Companies

privatemilitary.jpgBlackwater has of course been in the news. And the House has acted twice in the past week to regulate private military companies. One, H.R. 2740, according to the Times “would bring all United States government contractors in the Iraq war zone under the jurisdiction of American criminal law. The measure would require the F.B.I. to investigate any allegations of wrongdoing.” The other, H.R. 400, is designed “to make it easier to convict private contractors of defrauding the federal government during wartime.”

A couple of years ago I wrote an article about this area. One thing is clear: the use of private military contractors is not going away soon and can often have benefits. As such I proposed that rather than looking to legislation alone, the U.S. government, which accounts for massive portions of many private military contractors income stream, should take an old school contract approach to the jurisdiction problem. In short if the government wants to be serious about the issue, it can simply demand that any contractor adhere to human rights and international laws and agree to U.S. jurisdiction over common crimes. An additional legislative layer is required, however. Protection for whistleblowers is vital for any criminal or profiteering law to have teeth. These events occur far away and when people have come forward as happened in Bosnia, the company involved was quick to try and paint those who spoke up as trouble makers with all the usual employment repercussions. Peter Singer’s work in the area details much of the problem and is worth a read. My paper, Have Your Cake and Eat It Too: A Proposal for a Layered Approach to Regulating Private Military Companies, covers some of the history of the use of PMCs by governments and NGOs, the way PMCs can be used well, the reasons international law falls short of addressing many of the issues that are bound to arise, and then offers a possible solution to at least make sure that when crimes occur people know about them (a real problem in many cases), and they can be prosecuted. There is of course much to do in this area. The paper seeks to be a starting point.


An Example of a Well-Planned and Run Single Topic Conference

TM-Brochure_FINAL-1.jpgEric Goldman and Santa Clara University School of Law just conducted Trademark Dilution: Theoretical and Empirical Inquiries. Rebecca Tushnet has posted summaries of the proceedings at her blog and one can see the substance of the talks there. What impressed me was that the conference brought in a range of views and had little redundancy despite the single topic approach. Indeed, with academics (from law and other disciplines) and practitioners offering views and counterviews the picture of the impact of new legislation, the history of the doctrine, the theoretical foundations of the doctrine, and the way that business views the area of the law was rather full. In addition, the panel topic selection and the strict adherence to time (enough to present but still have questions) allowed for a good exploration of ideas. None of this post suggests that other conferences with simultaneous panels are bad. Rather, the well-executed, single topic conference offers the possibility of reflection on a topic for a whole day. The danger in either format is dead panels. In a single topic format that danger seems higher. Still, Prof. Goldman and the staff of Santa Clara’s High Tech Law Institute did a great job avoiding that possibility and put on an informative, great conference.

Cross-posted at Madisonian.


The World Conference on Japanese Military Sexual Slavery

The World Conference on Japanese Military Sexual Slavery is going on right now at UCLA. I remember taking a class on the rhetoric of the law of war as an undergraduate student and some of the issues we studied come up here. Where does the law fit? How accurate is the history? How does one attain justice and still have room for atonement and a way to move forward as a society? As Beth Van Schaack explains regarding the panel about comfort women “A perfect storm of legal doctrines, foreign policy objectives, treaty provisions waiving claims for reparations, failures of political will, and Japanese intransigence has left the ‘comfort women’ with little in the way of legal options at this point.” For those interested in the specific topic or the general area of reparations, Beth’s post notes the historical context and the trouble one faces in trying to apply law to the issues. In short, it is an interesting read.