Category Archives: Legal

Getting not pwned by technology

Posted on by

David Rowan over at the UK edition of Wired has an article about the advantages of renting out what you own:

There are assets all around us with high “idling capacity” that are essentially like an ATM machine. People use the extra cash for everything from offsetting car payments to taking the holiday they could not otherwise afford. Collaborative consumption is an easy way to become a micro-entrepreneur.

Rowan argues that the Internet is fundamentally changing the way that people think about ownership:

Now that collaborative spirit [of the sort that launched auction website eBay] is spreading to all sorts of other industries as ubiquitous internet connections bring us together in creative new ways. The peer-to-peer model has lately moved from auction houses and online classifieds to car-sharing, jewelery lending, even online banking — and each time it’s cutting out a traditional incumbent.

In an era when environmental concerns are making conspicuous consumption harder to justify, start-ups are targeting customers keener to pay for access to goods and services rather than actual physical ownership — and new web-based networks are letting all of us be both lenders and borrowers.

As the articles notes, however, such systems can only thrive within an environment of robust trust.  It’s one thing to sell a used laser pointer to a total stranger with the expectation of payment (like eBay’s first sale).  It’s quite another to open one’s dwelling to total strangers who find you through Couchsurfing.

One thing that the Wired article doesn’t address is the official legal barriers to much of these sorts of collaborative activities.  Hospitality, car rentals, banking:  these are highly regulated industries with a host of rules designed to protect incumbents by erecting barriers to entry.  While this may not be a large issue currently, it will be interesting to see how established industry players (or revenue-starved state and local governments) start responding if and when “collaborative consumption” becomes a truly major economic force.

High rate of arrests among NFL players?

Posted on by

Going into the Super Bowl, everyone knows about the legal issues Ben Roethlisberger has faced in recent years. But one sociologist has found that behavior that breaks the law is not unknown to NFL players. One website suggests that sociologist Eric Carter found “nearly 35% of all players in the league have been arrested.” Elsewhere, Carter goes into more detail about why so many NFL players are arrested at some point and how religion could help players deal with anomie:

Eric has conducted over 100 interviews with NFL players, some who have led happy and well-adjusted lives but also with many who have not.  We talk about the typical pressures that a professional player faces, coming into sudden fame and fortune.  Prof. Carter brings the research ideas of Emile Durkheim, particulary “social anomie,” to bear on what a number of these athletes face when moving into the professional ranks.  The sudden change in lifestyle combined with intense pressures to perform often leave many of them unhappy, confused and susceptible to all sorts of deviant behavior (some of which makes the news).  We talk then about the role of religion in helping players cope with these changes.  Our discussion looks at what factors might help players make adjustments to their new environments, including: a religious upbringing; the support networks they have access to at college; and religious role models in the locker room.

More details about Carter’s study of NFL players can be found here. Although this is a small sample of 104 players (there are at least 1440 players in the NFL each year – 45 players on 32 rosters), Carter found that 33 of the players had been arrested (31.7%). And Carter wrote a book, Boys Gone Wild, based on his study.

What is interesting about this is that the NFL seems to avoid scrutiny in the public eye about this. Whereas baseball stars are vilified for cheating, NFL players are regularly arrested (if this arrest rate holds true across the NFL – and even if it was really 10-20% lower, it still is a decent number) and the popularity of the NFL has continued to grow. Even with players like Roethlisberger or Rae Carruth or Michael Vick or Ray Lewis or Donte Stallworth or Marvin Harrison getting into trouble, this sort of news gets overwhelmed by the behemoth that is NFL entertainment.

In a more recent interview, Carter talks about how the NFL is able to keep this information out of the public eye:

“We see a lot of what goes on, because of the media,” Carter said. “But I was amazed at how much goes on that isn’t picked up — how powerful the NFL is in combating some of the potential bad media. I couldn’t believe how many guys contemplated suicide or attempted it, or were that unhappy with their lives that they engaged in these self-destructive behaviors.”

Carter found that 32 percent of the players he interviewed had been arrested after they entered the league — and others said they often evaded arrest by dispensing autographs to star-struck police officers — and nearly half described themselves as unhappy people.

“Fifty percent? That’s a big number,” he said, especially when you consider that these are young men who make on average more than $1 million a year to play football, and many of them much more than that.

“It just goes against our contemporary American conceptions of what happiness is. They have it all. They have the wealth, the fame, the power, the status — all of those things that many people equate with a happy life.”

Perhaps the NFL is able to bury these stories or minimize them. Or perhaps the American public doesn’t want to face this kind of information or thinks the athletes are compensated enough and can deal with the problems on their own.

Utah legislator suggests sociology degree may be “degree to nowhere”

Posted on by

A legislator in Utah made some comments recently that sociology, along with several other disciplines, do not provide helpful degrees for some students:

Stephenson, who has a four-year degree and master’s from BYU, said colleges aren’t giving sociology, psychology and philosophy majors the real story.

“These colleges refuse to inform them,” Stephenson said. “They refuse to give them the data.”

Stephenson is clarifying to say he is not calling four-year degrees undesirable. Nonetheless, his message is already being met with opposition from his legislative counterparts.

“Clearly it sends the wrong message,” said Senate Minority Leader Ross Romero, D-Salt Lake. “Basically, what we need to be saying is that these are all important and not to be pitting one against the other, because they all provide value.”

Romero pointed to sociology majors, which sometimes turn into lawyers and earn good paychecks.

“What’s most important is getting a liberal education, getting a well-rounded education and learning how to think,” he said.

Even some Republican colleagues are questioning the strength of Stephenson’s message. Tuesday, Sen. Stephen Urquhart, R-St. George, told Stephenson he was overstating the lack of value in a college degree.

Stephenson appears to be finding support for his rationale in a new Harvard University report out Wednesday. It says the education system is failing a lot of students that need to be career-ready, not college-ready.

Stephenson is calling certain four-year degrees “degrees to nowhere” as he pushes for an increase in funding for applied technology colleges.

While Stephenson is pushing for more vocational training, it is interesting that he picks on sociology (along with psychology and philosophy). A few thoughts about this:

1. These degrees do lead to some jobs or career paths. For example, sociology can often feed into social work or work in the criminal justice field. But some of these ties are not as obvious as perhaps business, pre-law, or pre-med.

2. It would be interesting to see the data to which Stephenson refers. Does this data say these majors can’t find work? Does it say that they earn less over a lifetime compared to some other majors? Do these majors have more student loans or debt after college? Does it say they have less meaningful jobs? Just curious.

3.  The skills of knowing how to interact with other cultures and people from different backgrounds seems valuable. See David Brooks’ argument about the difficulty of working with people.

4. The legislator Romero tries to defend these degrees but makes two interesting points of his own:

4a. The idea that these degrees and the skills developed in earning the degree have value even if it is not monetary value is a broader comment about society. If social workers, for example, are important and needed, shouldn’t the profession be better paying and more prestigious? Pay does not necessarily equate with social prestige or value.

4b. Romero then suggests that sociology can be fine if it is paired with a law degree. So the only way sociology is valuable is when paired with a prestigious and higher-earning degree?

5. The way this story is presented, the argument breaks down along party lines: the Republican thinks these degrees are not as worthwhile, the Democrat tries to defend them. Can we simply say that Stephenson thinks these degrees are not worth much because they support or promote values he disagrees with?

Blog and order

Posted on by

Overthinking It has posted some analysis from a painstaking survey of Law and Order seasons 1-10 (hat tip:  Above the Law):

[I]n November 1993, at the same time the DAs of L&O were stumbling to a 59% success rate, Rudy Guiliani was elected Mayor. One of his big campaign issues had been, well, law and order, and tackling the crime rate was the centerpiece of his first year….Giuliani didn’t just fight crime, he fought crime in a lot of very visible ways that average New Yorkers would take note of. I don’t mean to take anything away from his acheivements [sic] — there was a remarkable drop in crime during his administration. But even before the murder rate started dropping, Giuliani created a strong public perception that there was a new sheriff in town. He restored people’s faith in law and order, and Law & Order immediately responded.

Here’s where art really started imitating life:

The [L&O] murder rate dropped by about 15%, and the L&O conviction rate shot up by more than 20%. There was a whole new feeling of optimism in the city and on the show (not to mention a young new DA by the name of Jack McCoy).

For those of you who want to dig into the data for yourselves, Overthinking It has posted the dataset here (Excel spreadsheet).

While no one would accuse L&O of being 100% realistic, I would never have suspected that it tracked real-world aggregates this closely.  It is one thing to base a single episode loosely on a true story, but it is impressive that the show statistically mapped NYC crime rates so directly.

Complaint: “they knew and didn’t say”

Posted on by

For those of you wanting to dig into the recently unsealed legal complaint against J.P. Morgan that it turned a blind eye to the Madoff fraud, the Wall Street Journal has posted all 121 pages here (PDF).

I’m working my way through it right now.

Found hypocrisy; still searching for clarity

Posted on by

In case you haven’t heard, a few days ago Google started publicly accusing Microsoft’s Bing of stealing its search results.  Juan Carlos Perez over at PCWorld has published an interesting roundup of reactions to Google’s new “strategy” of public accusations:

While the merits of Google’s accusation are up for debate — Microsoft denies the charge — the fact that Google chose to complain in such a loud and agitated manner has become fertile ground for analysis and comment by industry observers.

Opinions range from those who view Google’s actions as hypocritical to others who say the company did the right thing by airing its grievance.

PCWorld’s link to Daniel Eran Dilger reaction over at Roughly Drafted is especially worth checking out.  Personally, I come down on the “Google is being hypocritical” side of things.  It’s hard to have the expansive view of copyright law and fair use that Google embraces for its own activities and then to complain with any legitimacy about Microsoft’s alleged behavior.

Unfortunately, copyright law in general (and fair use in particular) is notoriously unclear, malleable, and subject to judicial whims.  It’s doubtful that Google will actually sue Microsoft over this, so we may never know what the “answer” is.

However, even if a U.S. court upheld Microsoft’s right to copy Google’s search results (assuming that’s what happened here), that would only give us an answer (1) on these specific facts (2) as between parties willing to litigate (and maybe even (3) before that particular judge).  Given the high costs of litigation, most non-Fortune-500 copyright users claiming fair use rights usually find it is in their best interest to settle for a few thousand dollars when saddled with a copyright infringement lawsuit.  Indeed, there are companies based on this very business model that are out there suing people; the number of copyright infringement suits is rising.

This latest spat between Google and Microsoft is, to some extent, a sideshow, but it does highlight some of the problems that uncertainty breeds within copyright law.  I’m not worried about Microsoft’s ability to defend itself:  it’s a multi-billion dollar company with lawyers and PR specialists both in-house and on speed dial.  I am worried about the start ups that are seeking to be the next Google or Microsoft:  they generally can’t afford to get anywhere close to the line because they know that an infringement lawsuit may mean millions in legal fees and damages, so they back off and play it safe.

That’s the real cost of un-clarity in copyright law.

ABA wants free trade in legal services?

Posted on by

The International Business Times is reporting that American Bar Association President Stephen N. Zack is lobbying India to refrain from shutting U.S. lawyers out of the Indian legal market:

Currently, U.S. lawyers are allowed to travel to India on an “in-and-out basis” to advise their clients on non-Indian aspects of law. That “status quo” should be maintained as the [Bar Council of India] considers the broader issue of whether to allow the practice of law by foreign law firms in India, Zack said….”The ABA believes that allowing such activities is critical not only for the mutual benefit of the legal practitioners in both countries,” [Zack’s] letter said, “but also for fostering the vital and already close relationship between India and the United States and to promote the robust growth of trade and investments between our two countries. Allowing such activities is also essential in making India a preferred venue for international arbitration proceedings.”

This is a huge issue, and only going to get bigger in the coming years.  In most countries, including the U.S. and India, the legal profession is highly regulated and heavily skewed toward protectionism (i.e., preserving a pre-globalization status quo).  For example, in order to “practice law” in the U.S., one must generally graduate from college, attend law school for 3 years, and pass a state-specific bar exam.  Other countries have similarly stringent requirements.  Obviously, most people who have been through the trouble (and expense) of this process are vehemently opposed to competition from anyone else–including (and especially) lawyers licensed in other countries.

Which is what makes the ABA president’s statements so interesting.  Supposedly, U.S. lawyers currently provide Indian businesses with “consultancy legal services” (to use the article’s phrase) rather than “practice law” (which is the magic phrase to denote what one cannot do without an official license in a given state/country).  However, such verbal formulations are notoriously vague, and everyone who argues over their precise meanings are lawyers with a vested interest in either (1) expanding their own market for legal services or (2) keeping new competition out.

To date, new competition has mostly been kept out, especially here in the U.S.  It will be interesting to see whether the ABA president’s recent lobbying in India represents a first step moving toward a free trade in legal services between the U.S. and India.

Line-drawing and merits in job hunting

Posted on by

Although not tailored to the specifics of the legal job market, an analogous debate concerning the mechanics of the academic job market is taking place over Inside Higher Education (hat tip:  Tax Prof Blog).

First up:  Joshua A. Tucker in Academe as Meritocracy, arguing

  1. that only the paternalistic would stifle the dreams of potential Ph.D students, and
  2. that a robust meritocracy exists within the academy.

As Tucker puts it:

Like major league baseball, a successful academic career is a very good gig. Do we really owe every 22-year-old who is admitted to a Ph.D. program the right to that career solely on the basis of getting into a Ph.D. program? Or is it enough to give them a chance to succeed, knowing full well that not all of them will?…Like it or not, academia is a meritocracy. It may be a highly flawed meritocracy susceptible to overvaluing labels or fads of the day, but ultimately tenure is bestowed on those who earn the respect of their peers, and the more of your peers that respect you, the more job offers you are going to get and the more money you are going to make.

Tucker does recognize that a certain amount of truth-in-advertising is necessary, but he seems comfortable with letting admitted Ph.D students decide for themselves whether they should actually attend:

I fully believe we need to be honest with graduate students about what they are getting themselves into — the same way a minor league baseball player needs to know what the odds are of making it to the majors — but if they want to take a shot at achieving success in this kind of a career, I see no reason why we should excessively limit the number of people who have the opportunity to do so. And at the end of the day, that’s the trade-off here: the fewer students we admit to Ph.D. programs, the earlier we make the decision regarding who gets to be the next generation of professors.

While I sympathize with Tucker’s paternalism argument, I think his analysis fails to appreciate that lines must be–and are–drawn somewhere.  All of us are unfit for certain occupations, and each of us must either (1) realize this ourselves or (2) be told this by others.  Moreover, this must happen (1) sooner or (2) later.  Tucker does not escape the inevitable moment of line-drawing simply by choosing “later”, i.e., after his Ph.D. admission committee has sent out its acceptances.

Perhaps I can illustrate what I mean by expanding on Tucker’s example of professional baseball.  Personally, I am objectively unfit to play for a minor league baseball team, let alone to be drafted into the majors.  Let us suppose that, for whatever reasons, I am too deluded to realize this for myself and will need to be told by others that I will never be a major league baseball player.  Should a minor league team still admit me to its roster?  What about a college team?  High school varsity team?  At what point should I be told, “Kid, you don’t stand a chance of ever playing in the majors.  You should pursue another career”?

This is a difficult question that will need to be answered differently for different individuals based on their own specific circumstances.  Tucker, however, does not attempt to answer this question or provide guidelines on how it should be answered under various circumstances.  Rather, he simply implies that Ph.D. students should be admitted first and allowed to sort themselves out later, regardless of changing job market conditions or the odds of success.

In contrast to Tucker’s faith in the meritocratic process, “Dean Dad” responds in “Meritocracy and Hiring” that the academy is NOT the sort of meritocracy that should be generating smug feelings of superiority:

As someone whose job it is to actually hire faculty, I can attest that merit is only a small part of the picture….In this funding climate, we can only afford to staff a few of the positions (whether faculty, staff, or administration) that we need. If the position doesn’t exist, then the relative merit of the prospective candidates means exactly zero….Of course, there’s also the basic incompatibility of life tenure with the idea of meritocracy. If incumbents don’t have to keep proving themselves against newcomers, then you do not have a meritocracy. Tenure violates the foundational assumption of meritocracy.

The key is to recognize that hiring is always more about the employer than about the employee. Employers hire to solve problems they consider important. If you’re the best darn German professor who ever walked the planet, congratulations, but I don’t need you. I don’t doubt your brilliance, your hard work, your civic virtue, or your habit of helping old ladies across the street. They just don’t matter. It’s not about you.

I think Dean Dad is onto something here.  In discussions about job markets, the “right-place-at-the-right-time” factor is far too often overlooked .  Despite, for example, evidence that simply graduating from college in the middle of a recession can permanently lower lifetime earnings.  Dean Dad helpfully reminds his readers that failure to land a job in one’s chosen profession does not necessarily have moral overtones:

I’m convinced that one reason some people won’t let themselves let go of the dream, despite years of external signals suggesting that they should, is a sense that it would reflect a personal moral failing. They’ve identified so completely with the ‘meritocracy’ myth that they feel a real need to redeem themselves within it….[T]hey see the status of “tenured professor” as a sort of validation of everything they’ve done. Leaving the academy would be admitting defeat and accepting failure; lifelong “A” students, as a breed, aren’t very good at that. It’s not what they do….[L]et’s recognize the academic job market as the uneven, unpredictable, often unforgiving thing that it is. Good people lose. Frankly, some real losers sometimes win. It’s not entirely random, of course, but it’s a far cry from a meritocracy.

Although Dean Dad is writing about the academic job market, I think this is also a helpful point for recent law graduates to remember, especially in the midst of a recession.  Things don’t always work out, and that’s OK.  Sometimes, you just have to let it go and try something new.

The land of 100,000 lawsuits

Posted on by

Some enterprising anonymous researcher has determined that almost 100,000 copyright infringement lawsuits have been filed in the U.S. in the past year:

In the United States the judicial system is currently being overloaded with new cases, but the scope of the issue was never really clear until now. An anonymous TorrentFreak reader has spent months compiling a complete overview of all the mass P2P lawsuits that have been filed in the US since the beginning of 2010, listing all the relevant case documents and people involved in a giant spreadsheet.

The research shows that between 8th January 2010 and 21st January 2011, a total of 99,924 individuals have been sued. The vast majority of the defendants have allegedly used BitTorrent to share copyrighted works but a few hundred ed2k users are also included.

Of the 80 cases that were filed originally, 68 are still active, with 70,914 defendants still in jeopardy.

The raw data is available is spreadsheet form over on Google Docs.

As the disparity between 80 and 70,914 indicates, these types of lawsuits completely overwhelm the courts.  The U.S. justice system is simply not set up to handle this kind of volume, especially for suits as notoriously tricky to argue as copyright infringement.

Find (if ye know how to seek)

Posted on by

It’s a few days old now, but I just ran across a post over on TorrentFreak describing how Google has started removing “torrent”-related results from its auto-complete search results:

Without a public notice Google has compiled a seemingly arbitrary list of keywords for which auto-complete is no longer available. Although the impact of this decision does not currently affect full search results, it does send out a strong signal that Google is willing to censor its services proactively, and to an extent that is far greater than many expected.

Among the list of forbidden keywords are “uTorrent”, a hugely popular piece of entirely legal software and “BitTorrent”, a file transfer protocol and the name of San Fransisco based company BitTorrent Inc. As of today [1/26/2011], these keywords will no longer be suggested by Google when you type in the first letter, nor will they show up in Google Instant.

All combinations of the word “torrent” are also completely banned. This means that “Ubuntu torrent” will not be suggested as a user types in Ubuntu, and the same happens to every other combination ending in the word torrent. This of course includes the titles of popular films and music albums, which is the purpose of Google’s banlist.

This is quite an interesting development.  Personally, I have found Google’s auto-complete functionality very helpful in finding the names of half-remembered items.  It is a disturbing reminder of just how much control Google exerts–not only over what we find, but over what we search for.