Patent Reform Act of 2007 (PRA), eBay v. MercExchange, KSR, Leapfrog : Vested Interests & Territoriality : Justice Harlan I Wins Again for Modern Law

The Problem of Vested Interests for any Reform Activity

One of main problems encountered in attempting to instigate reform of any kind is the problem of vested interests, which can be described academically or historically as the sum of advantages, real or perceived, that mark the status quo in a given area, and which advantages are enjoyed by some person or group in that area. It goes without saying that the status quo of the patent system is also marked by such vested interests. Indeed, these are fighting tooth and nail to hang on to the advantages that they now enjoy after 20 years of unhindered proliferation.

Consequently, pursuant to the aforesaid, it is important to recognize in this context that most argumentation about reform of any kind is not conducted with a view toward objective improvement of any given status quo, but is rather a battle between opposing camps – those who stand to lose something – and – those who stand to gain something – by any reform. Neutrality is especially not be expected from those who themselves presently work in the system to be reformed, as they are not about to bite the hand that feeds them.

One result is that those insiders who know any particular system best, often say nothing, because they have no interest to rock the boat in which they are comfortably sitting. Similarly, if they do say something, their argumentation will openly or subliminally support the “insider” position that they are trying to protect. Since insiders who wash dirty linens publicly are generally ostracized by any group, very little legitimate criticism about a system thus ever comes from within that system and one should expect very little help from them.

For example, the USPTO will always support measures that give them more personnel and make them bigger and more powerful than they already are, quite apart from any objective gains or losses suffered thereby by the patent system or legal system as a whole. Similarly, the USPTO will oppose measures which curtail their powers and personnel, regardless of the objective value of such measures.

In the same vein, patent judges, patent attorneys and patent academics will tend to favor “patent solutions” which elevate their own position within the legal system and make them more important and more successful in the patent system as reformed. Any reforms which limit or minimize their roles will be rejected, based on allegedly “objective” grounds, of course.

Territoriality – The Territorial Imperative

Similarly, not only established ways of doing things but also expressed opinions will be defended as a type of territory – as a vested interest, a territorial imperative, true to the motto that “new ideas do not prevail on their merits, rather, they prevail when their “old guard” opponents die out or fall into the minority. There is a lot of truth to that territorial wisdom: see e.g. Michael D. Coe’s Breaking the Maya Code for a spectacular and also sad example of the territorial imperative in academia.

Territoriality is a primary force and even the concept of legal jurisdiction is based upon the territoriality principle. Only two American Presidents worked as land surveyors prior to be being elected – Washington and Lincoln – and they are often ranked as the two greatest Presidents that America has ever had. They understood land, and they understood territory.

See Kal Raustiala, The Evolution of Territoriality in U.S. Law, for the proposition that US territoriality is becoming increasingly uncoupled from sovereignty and geography.

Vested Interests and Territorial Claims Burden Patent Law Reform

Vested interests and territorial claims are the main impediments to patent reform in the United States. These vested interests have been instrumental in hindering Congressional patent legislation, discussed below.

The Sluggishness of Patent Reform and the Voices of Neutral Outsiders

True reform in any field, especially in patent law, thus depends primarily on the voice of more-or-less neutral outsiders who have sufficient knowledge about a particular system under scrutiny, but who are not dependent upon that system and who suffer no losses and/or who gain no advantages from a reform of that system.

Indeed, one reason that the patent law system had come into such disarray in the last 20 years is precisely because not enough outside voices had come to bear on the vested interests and territorial claims within that system. Now that these outside voices are becoming louder and more numerous, the patent system has no option but to change in the direction demanded, like it or not. As every smart investor knows, no one is bigger than “the market”, i.e. the entire public, viz. republic, is stronger than the special interests.

We are one of those neutral voices in the larger public “market” with no personal stake in the outcome of patent reform. Rather, we are suggesting changes in patent law that we think to be absolutely necessary for the good of the legal system and the country as a whole. That there will be winners and losers in such a patent reform is clear, but this is not our main concern, as we see a need to curb the current powers of the vested interests for the good of the common weal. Anyone arguing for or against a PARTICULAR group of territorial claims therefore has little standing with us since our concern is the WHOLE big picture. We view other voices in this debate from the standpoint of their allegiances, vested interests and territorial claims. Do their arguments seek the best for everyone, or just a chosen few?

The Patent Reform Act of 2007 (PRA)

Via the University of Chicago Law School Faculty Blog we are directed to Richard Epstein’s column at the Financial Times (FT.com) website which views the Patent Reform Act of 2007 (PRA) as A dangerous one-two punch, arguing that changes to rules on patent-based injunctions and patent infringement damages would dampen patent innovation.

As far as injunctions are concerned, Epstein points to the standard voiced by the US Supreme Court holding in eBay v. MercExchange. That rule, as Epstein writes, is:

[A] four-factor public interest test [which asks] whether the patent holder suffered an irreparable injury, whether damages were an adequate remedy, what was the relative balance of hardships between the parties, and how best to serve the public interest.

According to Epstein, the US Supreme Court wrongly bypassed “the long-standing rule of equity from the Court’s 1908 Continental Paper Bag decision, which treated the issuance of an injunction as a matter of course whenever a patentee practices an invention“.[link added by LawPundit]

That decision, found in a badly reasoned opinion by Justice McKenna (who studied law at the Benicia Collegiate Institute, closed in 1867), was rightly dissented to by Justice John Marshall Harlan (the 1st Supreme Court Justice to have earned a modern law degree and the lone dissenter to the segregationist case of Plessy v. Ferguson – a case which ranks with Continental Paper Bag as an unfortunate historical anachronism of American jurisprudence):

“Mr. Justice Harlan thinks that the original bill should have been dismissed. He thinks the facts are such that the court should have declined, upon grounds of public policy, to give any relief to the plaintiff by injunction, and he dissents from the opinion and judgment.” [emphasis added by LawPundit]

In supporting Justice McKenna and in not supporting Justice Harlan, Epstein is as wrong as those who supported Justice Henry Billings Brown (who never earned a law degree) in Plessy v. Ferguson and who similarly ignored the wise corresponding dissent of that same Justice Harlan.

Epstein writes about the PRA and the new damage rule:

The key damage provision states “The court shall conduct an analysis to ensure that a reasonable royalty . . . is applied only to that economic value properly attributable to the patent’s specific contribution over the prior art.” Thereafter the PRA also instructs courts to exclude from the damage calculations any economic value properly attributable to other patented or nonpatented improvements.

Epstein claims that these rules combined will “dampen patent innovation on the heels of Ebay“.

That is simply an allegation without proof, for which there is no evidence of any kind. Nothing indicates that patent innovation ever has been dampened or will be dampened in any manner by sensible rules on injunctive relief and damages.

What we as observers of the world of patent trolls have seen up to now is that the threat of broad injunctive relief leads to the kind of ridiculous court-based virtual extortion witnessed in the NTP v. Research in Motion case (the Blackberry case) and that the possibility of outlandish damage awards leads the kind of egregious court-based virtual extortion witnessed in the Eolas vs. Microsoft case. In those two cases, none of the patent-holders contributed anything to the economic development of the highly profitable products that were created by thousands of other people and the amount of money demanded as damages in those two cases bore no reasonable relationship to the inventor’s alleged contribution to those products.

The Eolas and Blackberry cases are prime evidence of patent law run wild – a development which has not escaped the notice of the US Supreme Court, whose decision especially in KSR v. Teleflex clearly and thankfully points to the inexorable swing of the patent law pendulum in the opposite direction. The subsequent Federal Circuit decision in Leapfrog confirms that assessment.

The danger that Epstein sees, especially to the pharmaceutical industry, is a straw man:

It is no wonder that the pharmaceutical companies dread the PRA, because of its potential to slash their returns while increasing their costs.

We worked in that industry for numerous years and it is one of the most profitable businesses on this planet due to the monopoly powers granted by patents. Just take a look at the Fortune 500 Global 500 and then look at the pharmaceutical industry specifically – and then compare profits with revenues. The Fortune Global 500 lists as the most profitable the company that has the most dollar profits, regardless of revenue. But a better way to judge profits is by comparing profts as a percentage of revenues. For that list, the pharmaceutical industry wins hands down. Just take a look at the year 2007 profits as a percentage of revenues in the pharmaceutical industry’s top echelons:

Top Ten Profits as a % of revenues are as follows
Fortune 500 Global 500 in 2007 – The Pharmaceutical Industry

Pfizer 36.9% of revenues
GlaxoSmithKline 23.2% of revenues
AstraZeneca 22.8% of revenues
Johnson & Johnson 20.7% of revenues
Wyeth 20.6% of revenues
Merck 19.6% of revenues
Novartis 19.4% of revenues
Roche Group 18.1% of revenues
Eli Lilly 17.0% of revenues
Sanofi-Aventis 13.6% of revenues

By comparison, even the multinational oil companies, known for taking the public for every cartel penny they can, are mere amateurs in filling their coffers. The rationale for patent-supported high drug prices in the pharmaceutical business is to recoup research costs and to finance new research, but in fact, those patent-created monopolies lead to phenomenal profits far beyond research recoupment.

It is not just for the period that patents are granted that monopoly profits are made, but far beyond those patents, as patent monopolies create strong market positions which serve as powerful barriers to entry to competitors down the road – long after patents have expired. In fact, many generic pharmaceutical companies – who sell the patent-expired products – are owned by patent-based companies, as the cow is milked long beyond patent protection.

Fiona M. Scott Morton writes at the Journal of Economics and Management Strategy in Horizontal Integration Between Brand and Generic Firms in the Pharmaceutical Industry that about 70% (SEVENTY percent) of all generic pharmaceutical companies are owned by branded companies.

We have nothing against the pharmaceutical industry, by the way, as antibiotics have saved our own life several times, but using the incomparably profitable pharmaceutical industry as the prime example for not invoking badly needed patent reform is – when one views the above profit figures – er, what shall we say, amusing.

In our opinion, limiting injunctive relief and bringing damages down to rational levels in patent infringement cases will not harm the powerful pharmaceutical industry significantly, and we have seen no presentation of evidence that this has ever occurred or will ever occur.

Legitimate, socially useful patents, correctly granted by the USPTO for non-obvious inventions, and demanding reasonable royalties, have nothing to fear from patent reform. Patent reform is aimed at the parasitical patent trolls and at all those who seek to profit unreasonably from any invention, where that invention is – 99% of the time – just a tiny part of the entire economic framework of the modern world and which should thus not be unduly rewarded and not be given broad injunctive powers of extortion fully at odds with modern economic realities.

History and Law : Solon and Democracy : Hereditary Aristocracy vs. a Meritocracy of Wealth

N.S. Gill at the Ancient History pages of About.com posts in Democracy Then and Now – Rise of Democracy – Solon’s Constitution on Solon’s contributions to democracy and law.

A revolutionary step toward the modern world was the fact that, as Gill observes:

Solon replaced the hereditary aristocracy with one based on wealth.

The meshing of law, politics and economics by Solon was a major change in the “political way of doing business” and had a major impact on the development of Western civilization.

See Solon’s Reforms and the Rise of Democracy in Athens

What Does "Good Coaching" Mean in College Football : The Example of Nebraska vs. Colorado and the Talent for Making Necessary Adjustments

The Colorado Buffaloes football team has a bright future under head coach Dan Hawkins and his coaching staff because they apparently understand what coaching is all about. This is exemplified by the content of the following posting at Buffs.tv which hits the nail fully on the head. It’s title is We don’t live in Lincoln:

Let’s give credit to the CU Buffaloes. In a cold game, they made the adjustments they needed to and won an offensive battle. It was a strange game because it literally took on four personalities. In the first, Nebraska attempted to run the ball. As predicted they went no where. Then the Cornhuskers adjusted to a near exclusive passing game in the second. They racked up 3 touchdowns in the second and looked ot have the Buffs on the ropes. Colorado was running nickel and dime coverages exclusively, and the Husker receivers were just sitting open in the seams. And after freshman Jimmy Smith gives up Nebraska’s fifth touchdown, I figured the Buffs were done for the day. Nebraska had adjusted and we hadn’t

At halftime apparently Ron Collins sat his defense and asked them what needed to change. They suggested going back to their base defense and Ron Collins honored that request. And that there may have been the turning point of the game. Jimmy Smith sparked the third quarter with an interception returned for a touch down. Made me think that Brown and Smith on the corners next year may be more formidable than I had originally thought. Next pass is another interception. The buffs put that one in the house too. Follow that with a blocked punt by Alonzo Barrett recovered by Jordan Dizon and that was the straw that broke Nebraska. Colorado reeled off five straight touchdowns to put this one out of reach of the Huskers.” [emphasis added by LawPundit]

One reason that the Callahan-coached Huskers went 0-17 in games after trailing at the end of the first half – and why they also lost many games in which they were leading at the outset – was that the Callahan staff had their “game plan” and was apparently unable to adjust their coaching of a game to adapt effectively to changes that the other team made, especially at the half. What this means is that NU coaches thus obviously overestimated their own abilities of planning and underestimated the abilities of opposing coaches. That is a loser’s flawed approach to coaching.

In the game against Colorado, the Huskers led 35-24 at halftime and should have won the game with sensible play and correct adjustments in the second half. However, as the posting from Buffs.tv above indicates, this was not done. Running the ball one quarter and passing the next is not an “adjustment”, it is simply one kind of game plan. Optimally, adjustments mean “real-time” adaptation to whatever the other team is doing before any real damage is done and not after the damage has been done.

A really gifted coaching staff for the Huskers would have known that Hawkins is a very good coach and could be expected to make serious adjustments to his nickel and dime defense at halftime rather than continue to be beaten by the NU passing offense. The NU coaching staff at halftime should have pondered, discussed, answered and instructed as to what the Colorado adjustments could be and how Nebraska would counteract such adjustments when they faced them, i.e. if Hawkins went to Defense A, the answer of the offense would be B, if Hawkins went to Defense C, the answer of the offense would be D, etc. But of course, none of this was done, so that two interceptions on two succeeding series of downs were totally unnecessarily inflicted upon an offense unprepared by its coaching staff for the defense they were facing.

A similar NU coaching lapse against Texas in the final quarter gave the Longhorns a win in a game that the Huskers should also never have lost, but when Texas went into the “zone read” offense in the 4th quarter, Nebraska did not immediately react and change its defense to minimize the threat that the zone read offense posed to them, so that a very fast Jamaal Charles ran off one big gainer after the other, leading to an easily avoidable Husker loss.

“Fixed system” coaches are simply not well prepared for modern football and will be beaten by coaches who are able to play any offense or any defense required to get the upper hand over their opponent – and this can change situation to situation, play to play, quarter to quarter, half to half, game to game, and season to season.

Law : Ubiquity of Personal Information : Discrimination

The ubiquity of it all.

The University of Chicago Law School Faculty Blog has a November 26, 2007 posting on
Strahilevitz on “Law in an Era of Ubiquitous Personal Information”.

Strahlevitz hypothesizes that anti-discrimination will be reduced by the ubiquity of personal information enabled by modern technology.

We remain sceptical.

Happy Thanksgiving from LawPundit ! How about the Question of the Origin of the Word Turkey for the Turkey Bird

Happy Thanksgiving!

If you have ever thought that the Turkey bird takes its name from the country Turkey, you would be wrong.

Believe it or not, there is no accepted etymology for the word for the bird “Turkey”, a word which has been analyzed lexically at great depth by Alain Theriault in his 1996 posting at the Linguist List.

There is also a comprehensive lexical list at the Wiktionary. The closest words to English “turkey” are German Trut-hahn, Latvian ti-tars, Hebrew tar-negol hodu“rooster Indian”, Igbo (southern Nigera) toro toro, Irish turcai, Italian tacchino, Ladin (Switzerland) tachin, Lower Sorbian turk, Sorbian truta, Romanian cúrca, Telugu (Dravidian language of India) Tarkee Kodi (compare those two words with the Hebrew). Many other languages of the world have a word for the bird turkey starting with a word like hind- or ind- or something similar to it meaning “bird of India”.

If the Turkey originated in Europe, the Latvian terms tark-sket or tark-skis might give the essential clue since these words mean to “chatter, clapper, patter, rattle”, i.e. “to gobble”.

But as explained by Michael Qunion at World Wide Words, the turkey originally came from Mexico of the New World and was brought to the Old World by the Spaniards, in part via India and the East Indies, which is how the bird got called the “Indian” bird.

The Maya term for the turkey cock was ah tzo based on current evidence so that an original *tzor– form is not inconceivable. Since Tzorkin viz. Tzolkin means “cosmic matrix” (whence “calendar”) and Chorti, the name of the Maya people, means “river of stars”, the name of the Turkey bird may have come originally from the contact of the first European explorers with the tribal populations of Mexico prior to the colonial era, i.e. rather than a “bird of India”, which the explorers thought they had discovered, it was actually a “bird of the Maya” Chorti, whence also names of the Turkey that reference Peru.

Patents and The Prior Art Blog : The Doctrine of Sovereign Immunity : Legal Modernism and History : King Henry II and the Constitutions of Clarendon

We ran by chance today across The Prior Art, a new blog started this month by Joe Mullin, who describes himself as:

a reporter for the San Francisco and Los Angeles Daily Journals, covering intellectual property law.

We noted with particular interest his posting Sovereign Immunity at Street Level, citing to Peter Lattman at the Wall Street Journal Law Blog and his posting titled Critics Take Aim at California’s Patent Shield.

State universities such as the University of California claim to be beneficiaries of the doctrine of sovereign immunity, according to which THEY can sue private citizens for patent or copyright infringement of patents or copyrights owned by such universities, but not vice versa, since such universities are allegedly immune from such suits through the sovereign immunity doctrine.

The sovereign immunity doctrine is of course a legal fiction, as documented by the exceptions to that doctrine:

Suits brought by the United States… Suits brought by another state… Suits in which the Supreme Court is reviewing the decision of a state court… Suits filed against state officials under the “stripping doctrine”… Suits brought against a political subdivision of a state… Suits as to which Congress has abrogated the states’ Eleventh Amendment immunity….”

Essentially, the sovereign immunity doctrine is a modern legal “double standard” of the kind which people in power historically try to apply to ruling institutions (and thus to themselves and their vested interests), regardless of whether those institutions be of government or of religion.

The classic example here is the struggle over the double standard of the Church in England at the time of King Henry II and Archbishop Thomas Becket. Ecclesiastical servants (about one of every six of the population in those days) benefitted from the “sovereign immunity” of the Church and were not tried for crimes in secular courts, but rather in ecclesiastical courts, where leniency or exculpation was practically guaranteed.

It was this battle between Henry II and Thomas Becket – which Becket rightfully and thankfully lost – that was a landmark in the development of legal modernism in England and which laid the basis for modern English law and the Rule of Law in modern Western Civilization. As written at BritainExpress.com:

Legal Reforms – Henry introduced several major reforms. Prior to 1166 trial by ordeal was a common way of determining guilt or innocence in criminal cases. Under this system, an accused person might have to pick up a red hot bar of iron, or pluck a stone out of a boiling cauldron. If their hand had begun to heal after three days they were considered to have God on their side, affirming their innocence. One has to wonder how many “not guilty” verdicts were rendered by this system! Henry replaced this rather painful system with a jury of 12 men. He also introduced the first personal property tax. At the same time he forced Wales to at least nominally acknowledge the sovereignty of the English crown.

The Constitutions of Clarendon in the year 1164 were thus at their core not a “personal” battle between Henry II and Thomas Becket, but rather a battle between the enlightened forces of the future against the dark religious and establishment forces of the past. As written at BritainExpress.com:

The Constitutions were composed of 16 articles, which laid out the extent of papal influence in the realm and the degree to which church members were subservient to the crown and English legal custom. The majority of the Constitution was simply a restatement of English custom and practice, but severe controversy erupted over two clauses which made “criminous clerks” (i.e. clerics accused of a crime) answerable to the legal authority of crown courts rather than ecclesiastical courts, and prevented appeals to the church in Rome without royal permission.

The church leaders in England, including Archbishop of Canterbury Thomas a Becket, reluctantly agreed to the provisions. When Pope Alexander condemned the agreement, Becket reversed his field and also condemned the Constitutions. This led to bitter conflict between Becket and Henry, conflict which finally ended in Becket’s murder in 1170. After the murder Henry revoked the two controversial clauses, but the rest of the Constitutions remained in effect and were integrated into the common law of England.

This task of destroying ancient vestiges of power in England was thus not finished, however, until the rule of King Henry VIII:

In 1220, Becket’s remains were relocated … to … the recently completed Trinity Chapel where it stood until it was destroyed in 1538…. This was done on orders from King Henry VIII as vengeance for his ancestor, Henry II. The king also destroyed Becket’s bones and ordered that all mention of his name be obliterated.

England at that time finally shook off this ancient loadstone and was then in a position to start to become one of the world’s leading powers, unencumbered by “sovereign immunities”.

The idea that any State is somehow “above the law” or “‘immune from the Rule of Law” in any manner is a rustic notion propagated in our day by dark age nostalgia and historically uninformed judges and Supreme Court Justices, some of whom seem to have lost sight of what the trend of modern law is and what the justifications for the Rule of Law are all about.

As a matter of constitutional law, we agree fully with Stanford Professor Mark Lemley, quoted in Peter Lattman’s posting:

The underlying problem is that the Supreme Court is applying an antiquated doctrine — the 11th Amendment — to circumstances in which it was never intended to apply … The Framers never contemplated states suing people for patent infringement.

Whenever a State claims rights that the citizens do not have, you have the beginnings of tyranny. When the top judges in the land affirm such claims to be the law of the land, the legal system has a significant problem. Indeed, to the degree that States themselves claim not to be bound by the laws of the land, so also shall their subjects follow suit.

Zoho features Zoho Writer as an Online Word Processor and Other Useful Ajax-based Programs

We recently ran across a rather intriguing site, Zoho, which is currently in Beta and features a large number of Ajax based progams, including Zoho Writer, an excellent online word processor for creating both private as well as public documents. Zoho is MSOffice and Open Office compatible. We took one of our own larger hobby publications and gave it a try, resulting in a document that we published on Zoho as a public document titled Horus Falcon Cult as Astronomy. Published documents are also automatically given an RSS Feed. The original document formatting had to be tweaked a bit, but the result was most certainly acceptable.

In addition to Zoho Writer, Zoho features the following Zoho programs:

Zoho Sheet (spreadsheets online)
Zoho Show (online presentations)
Zoho Meeting (web conferencing)
Zoho Notebook (online note taker)
Zoho DB & Reports (online database & reporting)
Zoho Planner (online organizer)
Zoho Projects (project management software)
Zoho CRM (on-demand CRM solution)
Zoho Creator (for database applications)
Zoho Wiki (with many features)
Zoho Chat (for group decisionmaking)
Zoho Mail (collaboration groupware)
Zoho Business (online business solutions)
Zoho Polls (online polls)
Zoho Viewer (view and share documents online)
Zoho Challenge (to evaluate candidates)
Site 24×7 (website monitoring service)
Zoho Start (dashboard for Office files)
Zoho Plugin for Microsoft Office
Zoho QuickRead for IE and Firefox
Zoho API (to create applications)
Zoho Widgets (for the desktop)
Zoho CRM Plugin (for MS Outlook).

Russia and the Baltic: The Modern Version of No Permanent Alliances Only Permanent Interests : The Baltic Must Move Forward, Not Backward

Via CaryGEE, thank you.
In the New York Times
Adam B. Ellick has an interesting November 11, 2007 piece
on Russia and the Baltic States
aptly titled As It Rises, Russia Stirs Baltic Fears.

To pick a paragraph from Ellick:

“In the Baltics, history is a ghost that still walks the streets in a very active way,” said Daina Eglitis of George Washington University. “It’s not just past, it’s present. But people have different readings on it.”

Of interest beyond the Baltic is that the relation of the Baltic nations to Russia is a pretty good barometer of Russian relations to the Western world generally.

We ourselves are political pragmatists and are seldom surprised by political developments in this region. We are reminded of the phrase that there are no permanent alliances, only permanent interests, and these are traceable back in human history over millennia. Brendan Miniter writes in the online Wall Street Journal at The Cows Come Home:

In his 1796 Farewell Address, George Washington noted that there are no permanent alliances, only permanent interests. The speech has often been used to justify an isolationist foreign policy. But in fact, Washington advised the nation to get involved in foreign affairs only when it is in this nation’s interests to do so, while expecting the same from other nations. The original George W. didn’t have a U.N. to proclaim irrelevant, so he simply said, “The period is not far off when we may defy material injury from external annoyance . . . when we may choose peace or war, as our interest, guided by justice, shall counsel.”” [emphasis added by LawPundit]

In his Farewell Address, Washington wrote further:

Taking care always to keep ourselves, by suitable establishments, on a respectably defensive posture, we may safely trust to temporary alliances for extraordinary emergencies.

Harmony, liberal intercourse with all Nations, are recommended by policy, humanity and interest. But even our Commercial policy should hold an equal and impartial hand: neither seeking nor granting exclusive favours or preferences; consulting the natural course of things; diffusing and deversifying by gentle means the streams of Commerce, but forcing nothing; establishing with Powers so disposed; in order to give to trade a stable course, to define the rights of our Merchants, and to enable the Government to support them; conventional rules of intercourse, the best that present circumstances and mutual opinion will permit, but temporary, and liable to be from time to time abandoned or varied, as experience and circumstances shall dictate; constantly keeping in view, that ’tis folly in one Nation to look for disinterested favors from another; that it must pay with a portion of its Independence for whatever it may accept under that character; that by such acceptance, it may place itself in the condition of having given equivalents for nominal favours and yet of being reproached with ingratitude for not giving more. There can be no greater error than to expect, or calculate upon real favours from Nation to Nation. ‘Tis an illusion which experience must cure, which a just pride ought to discard. [emphasis added by LawPundit]

In offering to you, my Countrymen these counsels of an old and affectionate friend, I dare not hope they will make the strong and lasting impression, I could wish; that they will controul the usual current of the passions, or prevent our Nation from running the course which has hitherto marked the Destiny of Nations: But if I may even flatter myself, that they may be productive of some partial benefit, some occasional good; that they may now and then recur to moderate the fury of party spirit, to warn against the mischiefs of foreign Intriegue, to guard against the Impostures of pretended patriotism; this hope will be a full recompence for the solicitude for your welfare, by which they have been dictated.


The Founders’ Constitution
Volume 1, Chapter 18, Document 29
http://press-pubs.uchicago.edu/founders/documents/v1ch18s29.html
The University of Chicago Press

The Writings of George Washington from the Original Manuscript Sources, 1745–1799. Edited by John C. Fitzpatrick. 39 vols. Washington, D.C.: Government Printing Office, 1931–44.

Russia follows what it regards to be its permanent interests, the Baltic States follow what they regard to be their permanent interests.

In the case of Russia and the Baltic, these diverse and often conflicting permanent interests have survived all of the wars fought in this region and the alliances formed to fight them. Many have died – and achieved nothing. A modern Realpolitik (pragmatic politics) in this region, in our opinion, therefore would be better advised to apply the lessons of history rather than to continue to repeat repetitively occurring tragedies, leading nowhere.

Our own ancestors stem from the Baltic, but we are in a minority in our political views on that region since we find it pointless to continously drudge around in the past. We would counsel modern Balts to stop complaining about undeniable historical injustices, for which the Balts are themselves in part to blame through their historically recalcitrant and antiquated politics. He who constantly focuses on past losses appears to the world as a “loser”. Spending all of one’s time lamenting past history brings nothing. Rather, one should start to don the garbs (Latvian gerbes = clothes) of winners – which means to look forward to the future with a realistic assessment of the position of the Baltic countries within the larger European and Eurasian pantheon and to act accordingly. Cooperation and not confrontation will lead to better results in the modern international world.

“Clothes” make the man. Dress your spirit like a winner. Act like a winner. Be a winner. Forget the past, no one can change it. Look to tomorrow and do it better than the generations that preceded you.

Let’s take a look at one example.

In terms of Baltic development, the Baltic states are – and always have been – a buffer zone between Eastern and Western Europe. It was thus both the German and Russian aristocracy who built their opulent vacation homes at – and spent their glorious summers at Jurmala (pronounced Your-ma-la). Jurmala Beach Resort and the surrounding villages with their over 30 kilometers of beautiful white sandy beaches form the Gulf of Riga‘s Baltic Riviera, a part of which was a candidate as a World Heritage Site. (See the graphic at the beginning of this post, linked from the official Jurmala city site).

Why not emphasize such through-and-through positive aspects of history and capitalize upon them? Countries with much smaller and far less inviting beach areas have learned to make a fortune from them and to boost their regional economies immensely.

But look for example at the presentation of the Baltic Riviera on the Internet in general. One has to look very hard to find anything which makes this vacation area internationally desirable for potential visitors, who have increased by only a mere 10% in 2007 – and yet, there are millions of tourists who would potentially come to Jurmala (including of course the many scenic villages there) and help bring wealth to Latvia, if the people in Latvia were to turn more to such projects and to turn away from the endless jabber about past eras and past wrongs.

Instead of complaining about Russian money coming into the Baltic, welcome it. Better to see that money invested in banks in Riga than elsewhere. There is nothing like capital to get capitalism going. Money drives the world, that’s just the way it is.

Take the example of Vancouver, today ranked as one of the most beautiful cities in the world and one of the most desirable to live in. A mere 10 years ago there was talk in Canada about a dreaded “Hongcouver”, a Chinese Vancouver, because of “the Hong Kong Chinese, who sought out Vancouver as a safe haven after the British colony returned to Chinese rule on July 1, 1997.” Today, 10 years later, Vancouver is the “Switzerland of the Pacific“.

MOVE FORWARD – otherwise, the past will overtake you, and you will be back where you were – in that unwanted past.

66 Science Blogs : The Largest Online Science Blogging Community : Seed Media Group : plus Larry Lessig and UGC and J.K. Rowling and Originalism

Updated November 12, 2007

Science Blogs is the largest online blogging community dedicated to science. It was created as an experiment in science communication by the Seed Media Group, an emerging science media and communications company, who write:

We have selected our 60+ bloggers based on their originality, insight, talent, and dedication and how we think they would contribute to the discussion at ScienceBlogs. Our role, as we see it, is to create and continue to improve this forum for discussion, and to ensure that the rich dialogue that takes place at ScienceBlogs resonates outside the blogosphere.

One blog – The Scientifc Indian – even links to a simply fantastic Larry Lessig video presentation on user-generated content (UGC)… a confluence of science and law. Even if you read no further, make sure you see that video in entirety to fully understand modern “digital culture” and the major issues facing intellectual property law today.

See also particularly the Evolution Blog about evolution and creation, and examine particularly What the Dumbledore Flap Teaches Us About the Constitution citing to Harry Potter and the Framer’s Intent, a scathing demolition by Michael C. Dorf – via J.K. Rowling and fictional intent – of Constitutional originalism. Dorf writes:

Speaking at Carnegie Hall last week, J.K. Rowling, author of the phenomenally popular Harry Potter series, revealed that Albus Dumbledore, the headmaster of the Hogwarts School of Witchcraft and Wizardry, is gay. Rowling explained that she was prompted to out the fictional Dumbledore when she noticed a reference to a female romantic interest of his in a draft of the screenplay for the planned sixth Potter film.

If the film version of Harry Potter and the Half-Blood Prince makes Dumbledore’s sexual orientation explicit, then that will settle the matter, at least so far as the fictional cinematic version of Dumbledore is concerned. But given that the Potter books, now complete, make no mention of Dumbledore’s sexuality, Rowling would not appear to have any authority to declare the print version of Dumbledore gay, straight or bi. Her views on such matters are naturally of interest to fans of her books, but the work must stand on its own.

These principles may seem obvious enough when considering the relation of a fiction writer’s intentions to her text, but they are highly contentious when it comes to legal documents. In the balance of this column, I will explain why James Madison is no more of an authority on the meaning of the U.S. Constitution, than J.K. Rowling is on Dumbledore’s sexual orientation.

Read the rest here.

Below is the list of the current 66 Science Blogs together with our comments – or not – about them, and/or including a link to a sample posting we have selected.

Sacred Earth : A Photographic Tour of the Sacred Sites of our Planet by Martin Gray

In our opinion, Martin Gray, some of whose photographs have been published by National Geographic, is one of the outstanding photographers of our age. He specializes in photographing our planet’s “Sacred Sites”. His recent “Places of Peace and Power : Sacred Sites Newsletter” (newsletters@sacredsites.com) indicates that he has finally completed his photographic book:
Sacred Earth

You can at the moment even get an autographed version.

As written in the foreword by Graham Hancock:

Acclaimed photographer and anthropologist Martin Gray has spent the last twenty years on a pilgrimage photographing and exploring more than a thousand sacred sites in eighty countries. Now, this stunning beautiful and deeply rewarding book conveys the essence of this remarkable journey to locations and sites imbued with the power to awaken feelings of transcendence, awe, and peace….

Accompanying each photograph is an insightful commentary that takes us deep into the history, mythology, and spiritual magnetism of the particular place. We come to realize that these stone rings, pyramids, shrines, and temples are often situated in locations that were discovered to possess special powers and energies by pre-industrial peoples who recognized the earth as a living and sacred being worthy of deep respect.

Please note that this blog posting is not a paid advertisement but our own honest opinion.

America the Beautiful? Not at Wal-Mart : Tyrannical Retailer Attacks Lawfirm Associate Payhikes in a New Mockery of Democracy and Freedom

Legal Week reports today, November 8, 2007 in Wal-Mart memo slams associate pay-hikes, an article by Michelle Madsen that:

Wal-Mart has demanded a freeze on across-the-board rate-increases from its US outside counsel, claiming that associate salary-hikes have had an unacceptable impact on law firm billing rates.

A memo sent out last week by the retail giant to the relationship partners at its network of outside counsel said that while the salaries firms chose to pay junior associates were “none of its concern”, the company was worried by the impact pay-rises were having on charge-out rates.”

It remains a mystery to this observer that what must be clueless Americans and customers in other nations continue to buy any wares at all from this terribly tyrannical company, the world’s largest retailer, for whom democracy, freedom and human rights are mere shadows, as one can read later in this posting.

As reported by Deutsche Welle in World’s Biggest Retailer Wal-Mart Closes Up Shop in Germany, an article by Louisa Schaefer, Wal-Mart tried to crack the retail market in Germany starting in 1997/1998, but had to throw in the towel in 2006 after losing about $1 billion in that ca. 10-year period. It was a sum which we could have saved that company easily, if they had just asked for our opinion early enough. We walked into a Wal-Mart store here in Germany at the beginning of their initial retail campaign and it was instantly clear to us that such a crass low-class cheap-quality and tyrannical outfit had zero chance of success in quality-conscious and – because of WWII – human-rights-savvy Germany.

As Louisa Schaefer writes:

Andreas Knorr and Andreas Arndt of the University of Bremen didn’t mince words in their study calledWhy did Wal-Mart Fail in Germany?[link added by LawPundit]

The authors wrote: “Wal-Mart’s attempt to apply the company’s proven US success formula in an unmodified manner to the German market turned out to be nothing short of a fiasco.”

One example of that might be that Wal-Mart’s American managers pressured German executives to enforce American-style management practices in the workplace. Employees were forbidden, for instance, from dating colleagues in positions of influence. Workers were also told not to flirt with one another.

A German court ruled last year against the company’s attempt to introduce a telephone hotline for employees to inform on their colleagues.

High labor costs may have been a big hurdle for Wal-Mart Germany, as well as workers who tried to resist management’s demands which they felt were unjust.

One Wal-Mart employee told the newsmagazine Der Spiegel that management had threatened to close certain stores if staff did not agree to work to working longer hours than their contracts foresaw and did not permit video surveillance of their work. “

As Knorr and Arndt write, in addition to the United States:

Wal-Mart is serving Argentina, Canada, Germany [no longer], South Korea, Puerto Rico and the UK through wholly-owned and Brazil and Mexico through majority-owned subsidiaries.

It has preferred, however, to forge joint ventures to enter the Chinese market, and a small minority shareholding in an established local retailer in Japan.“

To the citizens of all of these countries, we have the following message. Tyranny does not take over the lives of citizens suddenly, but is rather a slow process of theft. Your freedoms are not taken all at once by the political body that governs your state, but are eroded little by little through the undemocratic processes that you tolerate daily in your lives as imposed upon you by institutions and companies such as Wal-Mart. Once you are used to your rights being taken away, it is no problem for political bodies to put you into chains.

Under the cover of doing a “good deal” for you, cheaper wares are being offered to you at YOUR cost, not at the cost of the people who own Wal-Mart, who are profiting handsomely by your ignorance. Those cheaper prices are obtained by curtailing YOUR freedoms, whether in the person of Wal-Mart workers, or now, in the case of law firms serving this company. In order for Wal-Mart to make an even greater profit than ever before, your rights are being curtailed, more and more.

Indeed, the Wal-Mart failure in Germany led to a documentary cinema film to be made about this human rights fiasco entitled Wal-Mart: The High Cost of Low Price. As written by Deutsche Welle in Wal-Mart Slammed at Berlinale:

The documentary, “Wal-Mart: The High Cost of Low Price” is a foray into the shocking reality of cost-cutting retail management, into a world where employee rights play second fiddle to just about everything, particularly the deadly serious issue of making money….

One of Greenwald’s protagonists, a young single mother of two, says that when she first started her six-year stint at Wal-Mart, she really believed in the company. But that belief turned to disbelief when she discovered that male workers with less experience were being paid more than her. And that was not all. She was forced to perform dangerous work when seven months pregnant, and hassled by management for taking leave of absence to nurse her dying parents….

Another former employee who features in the film tells of the unscrupulous code of conduct he was expected to comply with during his time as a Wal-Mart manager. From shaving hours off employee’s time cards to paying off town councils which planned to block plans for new stores, Weldon Nicholson tells Greenwald “there’s so much wrong with this company, I wouldn’t even know where to begin….”

Although the film director managed to assemble a diverse cast of people who have endured the worst of the supermarket giant, the hunt for characters was not without its difficulties. “We found heartbreaking stories from people who worked at Wal-Mart, but many of them were just too frightened to appear on camera,” he said in a written introduction to the film. “We found businesses run out of the country, with CEOs who were terrified of talking with us on or off camera because of retaliation by Wal- Mart.“

Many people in America wonder that many Americans prefer to live abroad. Perhaps it is time for Americans to take a closer look at the good old USA they call home. Where is the freedom and democracy that the founding fathers hoped to establish in America? Gone with the wind?

As written by Deutsche Welle in Labor of Love in the German Workplace:

A court in the city of Düsseldorf ruled that the German subsidiary of the world’s largest retailer, Wal-Mart, was acting outside the law in trying to impose restrictions on the nature of relationships allowed between its employees.

The court said that while such regulations might be acceptable and indeed common practice in the US, they are neither compatible with German labor law nor the personal rights of employees.

Wal-Mart introduced a code of ethical conduct earlier in the year. It prohibits company employees from dating or falling in love with a colleague in a position of influence, and from exchanging lustful glances or flirting in any way.

In its 28-page code, the discount chain, requests that its workers report anyone observed to be breaking the rules, via a special telephone hotline. Failure to comply with the rules can lead to the termination of an employment contract.

The Germans know all about that. That is how East Germany and the former Nazi Germany used to work – by denunciation. Perhaps this experience with tyranny is the reason that Wal-Mart had no chance in modern Germany.

But the face of facism is alive and well, in the ownership and management echelons of Wal-Mart.

And now … my dear friends, they and Wal-Mart are after YOU … the lawyers.

It will be interesting to see how – and if at all – the American legal community will react to this new visage of evil. I am betting you will all duck, because the mass of men are sheep and cowards at heart if the visible evil does not affect you DIRECTLY – what do you care?

But I would remind you all …:

First They Came for the Jews

First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me.

Pastor Martin Niemöller

BEWARE.

Diversity in Major Law Firms : Paul Weiss Heads the Minority Law Journal List 2007

Diversity is a big issue in the United States and also affects law firms and law firm recruitment. We point out here, pursuant to the citations below, that Paul, Weiss et al. in New York City, our former law firm, ranks number one in this regard, for the second year in a row.

Citing the Minority Law Journal 5/1/07, the Northwestern University Law School Center for Career Strategy & Advancement’s Market Trends writes on the topic of diversity at major law firms as follows:

The overall percentage of ethnic minorities of the 255 largest U.S. firms (209 respondents) jumped to 12.4 percent from 11.3 percent in 2006 and 10.4 percent in 2005 according to The Minority Law Journal’s Diversity Scorecard. The percentage of minority partners, however, is only up slightly from 5 percent in 2006 to 5.7 percent in 2007. The individual law firm with the highest percentage of minority attorneys, 25.3 percent, is Paul Weiss Rifkind Wharton & Garrison (New York). Diversity in partnership is increasing, with 11 percent of all new partners being lawyers of color. Wilson Sonsini Goodrich & Rosati has the highest percentage of minority partners, 15.1 percent, and Greenberg Traurig reported the highest total number of minority partners, 58. –The Minority Law Journal, 5/1/07” [emphasis added by LawPundit]

At the main page of the Paul, Weiss website we find the following links:

Asian Legal Business Names Paul, Weiss Best IT/Telecommunications Law Firm for Seventh Year

Paul, Weiss Named One of the Best Law Firms for Women

Paul, Weiss Ranks Sixth in The American Lawyer‘s 2007 “A-List” of U.S. Law Firms

Paul, Weiss Ranked Most Diverse Law Firm in the United States for Second Year in a Row

See our previous postings about Paul, Weiss starting here.

Legal OnRamp : A Collaborative Online Legal Network Community of In-House Legal Staffs and Outside Law Firms

Via The Common Scold and Monica Bay, we read some news about Legal OnRamp, “a community of legal professionals from leading companies, law firms, and law schools” being created by invitation only, although interested organizations, firms and companies should contact them at the email given at that website.

Inside Counsel, “[t]he premier business magazine for general counsel and corporate legal executives“, has an article by Keith Ecker about Legal OnRamp at Counsel Connection., where he wrote in July:

By enabling attorneys to collaborate, the creators of Legal OnRamp hope legal departments can leverage each other’s knowledge to reduce costs. For example, Cisco has already considered the possibility of collaborating with other legal departments to create online training modules at a fraction of the price….

Aside from allowing GCs to collaborate with their peers, Legal OnRamp offers features that will help in-house counsel leverage the services and knowledge of outside law firms.

Terry Carter in New Routes Into the Corporate Door at the ABA Journal wrote in August:

If Cisco Systems general counsel Mark Chandler is right, the information superhighway will be littered with law firms like so much road kill.—

Chandler’s new baby, the LegalOnramp, is one example of those change efforts. It is a members-only online community of corporations’ in-house legal staffs and outside law firms. Everything about LegalOnramp is geared to information sharing, collaboration and (its main reason for being) negotiating honest value for legal work.

In place of surfing from one law-firm Web site to another in search of legal updates, FAQs, forms, templates and the like, LegalOnramp offers all that and more in a single, limited-access site. Added to that mix are:

  • The entire knowledge-management databases of individual member firms.
  • Wiki collaboration on legal knowledge and strategies.
  • A version of the Facebook social-network site for greater community.
  • A developing, “craigslist” way of pitching and getting business that avoids the troublesome features of requests for proposals.

LegalOnramp won’t be formally announced till later this year, if at all, says Paul Lippe, a lawyer with expertise in Web technologies who Chandler tapped to build it. But after 15 corporations came together in its legal services network last March along with about 25 law firms, the program started growing quickly. By early June, the tally was 30 companies and more than 100 law firms.” [links added by Law Pundit]

What is intriguing here is that no one knows where this will end and what consequences it will have on the established legal scene. The intent, of course, is to reduce costs and save money, but experience shows that lawyers are often needed, perhaps moreso than before, to handle new problems which arise from purported solutions to old problems.

Indus Valley Script Is Discovered to be Astronomy and is compared with a Zodiac in Easter Island Rongorongo Script

Daniel Salas has alerted me to his website and his interpretation of Indo-European Sanskrit decipherment of the Indus Valley script as astronomy. He writes there:

I found that the Indus Valley script signs matched the star constellations along the ecliptic.

I am very sympathetic to his approach since it mirrors some of my own views about the common astronomical origin of many symbols in disparate cultures. I do not however agree with many of his individual interpretations, but I think he is definitely on the right track in seeing symbols of the Indus Valley script to be astronomical signs for the Nakshatras (ancient Vedic Sanskrit moon stations of the sky). In other words, he is very right in seeing the astronomical connection. I then saw it as my responsibility, based on my experience with ancient astronomical scripts, to identify those symbols that I can.

Below, I compare one of the seals that Daniel Salas shows on his website with my decipherment 26 years ago of a wooden tablet from Easter Island known as “Honolulu Tablet No. B. 3622”, which I showed to be an ancient zodiac, as published in the year 1981 in An Astrological Zodiac in the Script of Easter Island. That there is a clear connection between that Easter Island script and the Indus Valley seal pictured by Daniel Salas is beyond doubt, and I interpret the Indus Valley seal accordingly below.

At the bottom of the graphic below, to the right (and reproduced backwards next to it left), is the Indus Valley seal pictured by Salas:

To our eye, the second line appears merely to be a variant writing of the same symbols.

In the middle of the page below is found the Easter Island Zodiac deciphered by me in the year 1981:


If we now directly compare the Indus Valley seal with the Easter Island tablet we get the following comparison and identification of astronomical signs:

indus valley easter island zodiac astronomical signs

The second row of symbols on the seal appears to be a variant form of the same group of symbols – or – perhaps this lower group of symbols applies to the southern heavens, which would support the ancient Vedic Sanskrit legends that the ancient seafarers mapped the southern heavens so as to be nearly identical to their northern counterparts. Richard Hinckley Allen in Star Names, Dover Publications, N.Y. 1997, reports of ancient legends that the southern stars were initially created by ancient seafarers to approximate the shape of Northern constellations in similar positions. Allen writes in Star Names (p. 436) as follows:

Before the observations of the navigators of the 15th and 16th centuries the singular belief prevailed that the southern heavens contained a constellation near the pole similar to our Bear or Wain; indeed it is said to have been represented on an early map or globe. Manilus wrote:

The lower Pole resemblance bears
To this Above, and shines with equal stars;
With Bears averse, round which the Draco twines;’

and Al Biruni repeated the Sanskrit legend that at one time in the history of the Creation an attempt was made by Visvamitra to form a southern heavenly home for the body of the dead king, the pious Somadatta; and this work was not abandoned till a southern pole and another Bear had been located in positions corresponding to the northern, this pole passing through the island Lunka, or Vadavamukha (Ceylon). The Anglo-Saxon Manual made distinct mention of this duplicate constellation ‘which we can never see.’…“

Footnote: The name Rongorongo for Easter Island is an unfortunately erroneous rendering by misled scholars and their equally detoured followers. The ancients doubled their symbols and names to form plurals and the term rongo is cognate with Indo-European e.g. Latvian runas “talks, stories” of which runa is the singular. To form the plural, the ancients doubled the rongo “runa” symbol. The Latvian term RUNA “talk” viz. RUNAS “talks” explains why the carved messages found on ancient megaliths are called RUNES in the Scandinavian pantheon.

Travel to Boomtown Riga Latvia + Baltic Optimism

The Baltic States are booming. Jon Fasman writing for the New York Times in his recent 36 Hours in Riga, Latvia observes:

RIGA’S property boom drives Latvias economy, one of Europe’s fastest growing, giving it the edgy, electric appeal of a boomtown. With stunning Art Deco architecture, a vibrant night life and varied and inventive restaurants, the city’s Soviet gloom has been replaced with a sense of Baltic optimism.”