Statements of Interest

African crossroads - Part II, Rwanda's future

2010-02-27T04:06:51Z

I saw on BoingBoing recently a harrowing blurb:

Phone texts in Nigeria urged mass murder
"War, war, war. Stand up and defend yourselves. Kill before they kill you. Slaughter before they slaughter you. Dump them in a pit before they dump you." — One of many mass-text-messages sent last week in Nigeria, inciting people to murder. And they did: some 350 were killed in Christian/Muslim violence.

What was so particularly disturbing about this news was watching history repeat itself (albeit this time in Nigeria). In the 1994 Rwanda genocide cell phones weren't widely available, but there was the radio, and xenophobic Hutus used this media to convince ordinary Hutus to do their murderous bidding.

So what is the antidote for this sort of thing? To clamp down on free speech so no one may ever seek to inflame violent ethnic tensions? Hardly.

]]> The story of Rwanda often stops abruptly. The genocide ended, and then apparently they all started living happily ever after. Would that it were, but history is never so simple. There were reprisal killings. The Gacaca courts, despite even the best of intentions of instituting grass-roots, community-based justice, often raised serious due process problems for the accused and were not-infrequently abused by the victims (and vice versa).

And then there is now-President Paul Kagame, who runs the country. In a way it seems like Kagame is essentially playing a sort of Sim City with Rwanda's development. And I don't necessarily mean that as a criticism. In many ways he's doing an excellent job. He takes aid for infrastructure when he can get it, while at the same time he tries to encourage private investment so the country's economy will not forever be dependent on the West's tithes. He understands where Rwanda fits in to the global economy now, and where he wants it soon to be.

In particular, he has aspirations for Rwanda to be a high-tech hub. Sitting at the crossroads of mid-continent Africa, he wants it to be a knowledge economy full of information workers. The Singapore of Africa, he has proposed. While today the investments he makes in Internet connectivity may seem daft in the face of massive poverty and subsistence farming, he knows there's a generation of Rwandans about to grow up and need jobs, and he wants those jobs to be there.

But while Kagame's government may be doing good things for this country, it's still just Kagame's government. Kagame does legitimately have a lot of popular support, but his government's policies make it difficult for opposition parties to form, effectively campaign, or share in the governing.

Kagame's Rwanda presents a paradox. As an illustration, on my plane flight back from Rwanda I sat next to some Koreans who were working on a fiber backbone along the country's western border, and the news is full of updates on the project to connect Rwanda's internal networks to the undersea cables running to East Africa's shores. And yet, on my plane flight into Rwanda I met a lawyer who had flown in to take up the case of a journalist being prosecuted for criminal defamation. By free speech standards it was a laughable charge. But in Rwanda, where free speech is a much more tentative concept, it was very real.

Last year Kagame had an op-ed in the Washington Post imploring Obama to institute policies that would encourage more private investment in Rwanda. If the US didn't, he warned, China would. China may not care about whether civil liberties exist in Rwanda, but the US should. Not only so we don't inadvertently donate our resources to equip a government to dominate its people, but also because these freedoms are ultimately necessary to help stabilize Rwandan society -- and thus enable an eventual return on this investment. It is simply not possible to achieve its economic goals and be at the center of African innovation if the nation must be under a single leader's thumb. Remember that even if he is a benevolent autocrat, whose unilateral exercise of power is generally positive, at some point he won't be in power. Rwanda needs to be able to transition power from one leader to another -- and without a violent coup.

Rwanda's history does present some unique complications, however. For one, some of the opposition is comprised of divisive extremists, including those who are unhappy that the genocidal project to destroy all Tutsis was not completed. But Rwanda's future depends on it being unified, and should anyone succeed in dividing it again it will fail and fall back into violent chaos. Furthermore, while the physical wounds from the genocide and its aftermath have largely healed, the psychic ones remain. Every Rwandan knows at least one person who was killed and one who did kill. They may even see the latter still living and working in their communities. Free speech is not necessarily what they are clamoring for; in order to function, Rwandans often adapt to the horrors of their past by just not talking about them.

But while the situation makes Kagame's reflex to control understandable, what Rwanda needs is the exact opposite. Rwanda needs law that creates a sphere of intellectual liberty necessary to stoke the unshackled creativity of its 10 million souls. Law that presents a healthy outlet for dissent and disapprobation. Rwanda needs law that will be looked upon by society at large as a legitimate force -- indeed, as a legitimate alternative to force.

Here Rwanda faces another unique challenge. Despite a population of 10 million, it has only a few hundred lawyers. And of those, around half are trainees, many of whom want to practice with international commercial transactions, to help broker all these new Rwandan deals because, reasonably, that's where the money is. But that money won't be there if Rwanda is too unstable to justify the investment.

Of course, it's not that more lawyers are called for per se but the role of law itself within Rwandan society. Rwanda needs law that fills the vacuum where violence and hatreds otherwise have reigned. Which doesn't mean just any law: Rwanda needs law that doesn't ban, but rather enables. Law that facilitates freedom, not law that controls. Law that is available to all, equally -- not law that itself continues to inflict the oppression of the past.

More specifically, Rwanda needs greater due process guarantees (e.g., attorney-client privilege should be ensured). It needs greater checks on government power (e.g., the judiciary should be independent of the executive). And it needs law that doesn't stand in the way of Rwanda having the culture of vibrant, free discourse it needs if it is ever to become the vibrant, bustling knowledge economy Kagame intends it to be.

African crossroads - Part I, Rwanda's past

2010-02-27T03:51:44Z

It is not possible to go to Africa without becoming immediately smitten with it. "Africa," of course, is a bit overbroad -- I speak more of what it means to visit any developing country, of which the African continent is teeming. Developing countries are such dynamic places; as they endeavor to grow into safe, stable, and successful communities, it's impossible not to root for them.

But they do have so much to overcome. Though often blessed with an abundance of natural resources, many African countries have generations-long histories of exploitation and heartache, either from external colonization forces or internal ethnic tensions, or some combination of the two.

Rwanda is no exception to this. This small but verdant country sits tucked away near the geographic crossroads of this vast continent: just below the Equator and wedged in between the large English-speaking East African countries of Uganda to the north and Tanzania to the east, and the French-speaking tiny Burundi to the south and enormous Democratic Republic of Congo to the west. Rwanda has no oceanfront; all connections to the world need to pass through at least one of its neighbors.

The upside to this situation is that Rwanda's geographic isolation protected it from some of the earlier ravages of colonization. But by the beginning of the 20th century colonization had begun to take hold, and by the end of World War I it was firmly under Belgian control.

Colonization can be something of a double-edged sword. While it often brings handy western technologies, it does so with the loss of local autonomy -- or worse. In Rwanda's case, what Belgium wrought was much worse, taking a largely stable society and turning its peoples against each other with the most catastrophic results. Thus Rwanda is not just a developing former colony struggling to attain its place among modern countries; it is also a young country struggling to heal a most grievous internal wound. By many accounts it has done remarkably well. But at the beginning of this decade Rwanda is at a crossroads: can it continue to progress towards prosperity and stability, or will it give in to the darker forces that have pulled it into pieces before?

]]> Other countries have had poverty. Other counties have had power-mad dictators dispatching their militias to seize their countries' resources for themselves. But Rwanda had something worse: Rwanda had genocide. And not "just" a genocide wrought by an invading force; it was a genocide wrought by its own people upon their fellow countrymen. Rwanda today isn't just trying to overcome the loss of the 500,000-1,000,000 Rwandans killed. No, Rwanda must deal with the reality that the killers of all those people are fellow Rwandans.

While being mindful that history is always told by those with the power to tell it, a common view of Rwanda's past is that historically it has been populated primarily by two groups: the Hutus and Tutsis. These distinctions were generally economic, and intermarriage and the swapping of designations were common. The Belgian colonists, however, believed "Hutus" and "Tutsis" were physical, racial distinctions, and thus permanently divided Rwandans into these two groups, even issuing identity cards officially denoting which group people belonged to. The Belgians then played favorites, giving the minority Tutsis more privilege and power in this colonial society than the majority Hutus. As a result, when Rwanda finally gained its independence in the 1960s there wasn't just resentment towards their colonial rulers but also towards the Tutsis who had reaped more of the economic benefit of the colonial system.

In the years after independence Rwanda saw periodic fighting among Rwandans as Hutu-Tutsi resentments often spilled over in ugly ways. But never as ugly as it did in 1994. Immediately following a plane crash that killed Rwanda's then-leader, a group of xenophobically vicious Hutus took over and began their wholesale slaughter of Tutsis and moderate Hutus. Over the next 100 days their Interahamwe militias committed acts of barbaric cruelty against Tutsis, including by setting up roadblocks and hacking to death with machetes any Tutsis who came through. But that wasn't all: through the media they controlled they stoked ordinary Hutus to turn against their Tutsi neighbors. People who had dined at friends' houses now murdered those friends. Intermarried families now purged their in-laws. Teachers killed students. Students killed teachers. Priests led entire flocks to slaughter. Not only did the streets run filled with the blood of innocents, including women and children killed in the most gruesome ways, but all civil society -- indeed, it seems, all civilization -- in Rwanda completely dissolved.

The genocide ended, for the most part, after a group of rebels -- Rwandan exiles who had been living in Uganda -- fought their way back into the country. Those rebels were led by Paul Kagame, today the president of the country. And eventually Rwanda began to rebuild.

It has indeed come a long way in those 15 years since. Western guilt about having done little (or worse than little) to stop the genocide has led to the injection of huge amounts of aid to the country to rebuild its ruined infrastructure. Women now sit in greater numbers in parliament than in many other countries, including many Western ones. Innovative Gacaca community "courts" sprang up to address the wrongs committed during the genocide that the standard criminal justice system would have required decade upon decade to process. Rwanda is no longer a nation of Hutus and Tutsis; it is now a nation of Rwandans.

Mostly. Because while many narratives about Rwanda stop here, mine will continue. Because right now Rwanda is at a crossroads, and whether and how it can survive as a safe, stable, and successful nation of Rwandan people depends on the choices it makes today.

Read Part II.

Boston: an INTAresting destination

2010-01-26T20:18:59Z

I had a great time at last year's INTA conference in Seattle, mixing and mingling with IP lawyers from all over the world. (INTA = International Trademark Association.) This year's conference will be held in Boston, a city where I recently spent three years attending law school. So for my out of town friends, especially those from other countries, I thought I'd post some information to help get people oriented. Feel free to add more information or post questions to the comments; I included only what I was most familiar with or could readily remember, since I don't live there now. Edit 2/9/10: Also be sure to read the comments for even more handy information.

]]> Overview

Boston is one of the United States' oldest cities. Established in the 17th century as part of Britain's Massachusetts Bay Colony, by the time the American War of Independence (known locally as "The Revolutionary War") came around in the mid-to-late 18th century the city was home to many a rabble-rousing revolutionary. Today the city continues to pay homage to that period of colonial history as well as other periods in its past, especially if it involves the Kennedy family. Surrounded by an expansive waterfront on one hand and numerous colleges and universities on the other, this seafaring center of learning has been home to both blue-blooded American nobility and many an immigrant new to its shores, all of whom have left their mark.

Boston is in many ways as American a city as you can get, while still being its own unique community with its own quirks, accents, and fervor for its local sports teams... It is a modern city full of art, culture, and history in a compact, walkable package.

Orientation

Much of downtown Boston is clustered in "the hub," or the original island(s) later expanded and connected to other communities via landfill and bridges. In addition to much of the city's skyscrapers, this central area contains many of the city's most historic sites and famous neighborhoods, including the North End, which replaced its Irish heritage with an Italian flavor, and Chinatown, which still retains its Chinese, as well as Beacon Hill, one of Boston's oldest and ritziest. Downtown Crossing is a shopping district sitting roughly in the middle of the hub.

Jutting out to the west from the expansive Boston Common is the Back Bay area, full of well-preserved old brownstones and shopping for the well-heeled. Continuing down Commonwealth Avenue (pronounced "Comm Ave") one first comes upon comes across Copley and the Prudential Center, one of Boston's taller buildings, and then Kenmore Square, where Comm Ave intersects with Beacon Street. If one continues down Comm, one first passes Boston University, whose campus runs along the avenue between it and the Charles River just to the north, and then the neighborhoods, and nightlife, of Alston and Brighton.

Wedged into the triangle formed by Comm Ave and Beacon is the separate (and very pleasant) town of Brookline. (Years and years ago Boston had tried to annex it, but failed.) Where Beacon and Harvard Street intersect at the back of the triangle is known as Coolidge Corner, which is a nice neighborhood of shops and restaurants. Just off of Harvard Street is the birthplace of President Kennedy, and just converted into condos at Freeman and Pleasant was the church where he was baptized. (American humorists Conan O'Brien and John Hodgman are both from Brookline too.)

To the north above the Charles River is Cambridge. The main part of Harvard's campus is towards the west, near Harvard Square, while MIT's is generally towards the east and Kendall Square. Meanwhile, the convention itself will be in the South Boston area. (Note: it is NOT at the older Hynes Convention Center, which is near Copley.) It's to the south of the downtown center, and across the canal. This part of Boston has seen a lot of recent redevelopment and the new facilities are very nice. However, the area is more spread out and with less to see than other neighborhoods have. (It does have a nice waterfront, however.)

Getting there and getting around

In case you were tempted, do not rent a car for the conference. Not only is parking very expensive, but driving itself is not be fun. (It's congested, streets are poorly marked (even GoogleMaps is generally useless), and you need to be as aggressive as the other drivers.) Even after having lived there for three years it still gives me conniptions.

Fortunately, the mass transit is very good. Like London has its Underground and Paris its Metro, Boston has its "T". (If you ask for the subway, people may ignore you. But for best results, ask for the nearest "T" stop.) The T is comprised of several lines of subways, streetcars, buses, or some combination of them all... But the routes are pretty simple. (Note, though, that the T stops running around midnight.)

The Red Lines and Orange Lines generally run North-South. There are few locations tourists would want to visit that would require taking the Orange Line, but the Red Line handily links South Station (where Amtrak and many regional trains and buses depart), with Downtown Crossing and Park Street (key transfer points), and with MIT and Harvard to the north. The Blue Line is also of minimal utility, but it does stop near the Aquarium and provides one of the transportation links to the airport, as well as easy access to Revere beach. Transfer points are eaily identified on the “T” ‘map.

More important to the average visitor's travels is the Green Line and its various permutations. Within the city center the Green Line functions as a subway. However, upon reaching Kenmore Square, or, in the case of the "E," Copley, the line splits into the "B," "C," or "D" lines and continues as a streetcar. The B line follows Comm Ave out past Boston University towards Alston and Brighton until eventually reaching Boston College, while the C line runs along Beacon Street past Coolidge Corner. Tourists are unlikely to need to take the D except within the city center where it runs underground along the same route as the B, C, and E. The E offers access to the major museums and the Longwood Medical Area, but doesn’t stop at Fenway Park (Kenmore).

There are also the new(ish) Silver Lines, which begin at South Station. In particular look for the S1 and the S2, which go past the convention center. The S1 also goes to the airport. So does the Blue Line, although it's necessary to take a (free) shuttle bus between the airport and the Blue Line's T stop. (Watch the signs, as there are different shuttles to different terminals.) In theory the Silver Line may be more direct, but it depends where you are starting from. If your lodging is on the Green Line you may have fewer transfers overall if you take the Blue Line to and from the airport. (Due to the configuration of the Blue Line's T station I generally prefer to take the Blue Line to the airport, and the Silver Line from it.)

Exact fares can be paid in cash the buses or trolleys at street level. The underground turnstiles require tickets, which can be purchased in the stations. But it may be more convenient to instead purchase a "Charlie Card" for your visit. This card gets its name from an old song about a guy named Charlie who got stuck indefinitely riding the T because he didn't have enough money to pay to get off! With a Charlie Card, however, you will not have to worry about such a fate. You can either load the card with any amount of money on the card, which gets deducted upon every ride at a discount, or buy a T-Pass. For $15 a 7-day pass is a bargain. You can buy these Charlie Cards at any subway station fare machine and in some stores.

The preceding all presumes you have gotten to Boston somehow. Boston's Logan Airport (BOS) is an international airport, but not all carriers fly there directly. You may likely be routed through Dulles (IAD, outside of Washington DC), one of the New York airports (JFK most likely, but possibly LaGuardia (LGA) or Newark, NJ (EWR)), or even, conceivably, Chicago O'Hare (ORD). Now that JetBlue, Southwest, and Virgin America have entered the Boston market and driven down the price on some domestic tickets, you may find it cheaper to fly into one airport from abroad and then buy a separate ticket for the flight into Boston.

Or you could fly into a New York airport and take ground transportation the rest of the way. The trip by train or bus takes 4+ hours. Amtrak runs trains throughout the day from Washington, DC, up through New Jersey and New York City to Boston. There are also affordable buses connecting NYC and Boston, which, traffic permitting, run between the two cities in about four hours and for about $20 (they even have free WiFi!). I've had good luck with BoltBus and heard decent things about MegaBus, although there are others (I'd avoid the so-called "Chinatown buses," however. These are the ones where the pickup spot is in Chinatown. An interesting concept culturally, as they were the initial businesses who decided to serve the NYC-Boston routes cheaply in order to connect the cities' Chinatown residents. But they are not known for having well-maintained bus fleets.)

Where to stay and what to eat

The hotels by the convention center will be close to the convention but not very close to most other things. Because of the compactness of the city and the usefulness of the T, however, it is not necessary to stay quite so close. Any hotel in downtown Boston will suffice. As will those surrounding Copley. Even further out towards Kenmore (e.g., Hotel Commonwealth) and Brookline (Brookline Holiday Inn or Courtyard by Marriott) the commute will be manageable. Plus don't forget about Cambridge... As long as the hotel is near a T stop (as are many clustered around Harvard Square) a simple hop on the Red Line will get you close to where you need to go. (You can either walk the rest of the way from South Station, or switch to the Silver Line.)

There's lots of good places to eat in Boston, and lots of good, local food you should eat...

For Italian there's the North End, which was at one time a community of Italian immigrants. Today most have moved on, but some restaurants remain. They are a little more formal and a little less "of the neighborhood," but many are still good. Expect a long outdoor wait for pizza at Pizzaria Regina. For Italian pastries people like to go to Mike's or Modern Pastry. But what I like about the Boston area generally is that you can often get good pizza and good cold-cut sandwiches at nearly any hole-in-the-wall Italian place. (These sandwiches are known as grinders locally, or heroes or hoagies or sub(marine)s and are common to Italian-American communities throughout the Northeast US. They are basically what the Subway chain sells, but on proper bread with proper meat and done up properly.)

I find ordering Chinese food in Boston to be a risky undertaking (e.g., sweet and sour chicken involves huge strips of breaded chicken, with a red dipping sauce on the side), but certain restaurants can do certain things really well. Out by Boston University (and not too far from Kenmore Square) I like Quan's on Comm Ave (especially its crispy noodle dishes) and there's another decent place on Beacon at St. Mary's. I've also had good, cheap dim sum in Chinatown but the specific restaurant name eludes me. (I do remember it was on the second floor.) Also out by BU is the Noodle Street restaurant, which I liked, but none of these places are worth a special trip.

Then there are foods local to the region. As you will notice, Boston has a large waterfront. Thus it is a seafood town. Therefore you must try New England clam chowder at least once. Other shellfish like oysters, scallops, and lobsters are also popular local specialties. Many people like the restaurant Legal Seafood. It is a chain, but it is a locally-based one. It's also a slightly upscale sit-down restaurant. Daily Catch is good, especially if you like calimari. Whereas out towards the convention center are more kitschy places. In my experience they also are a little overpriced and touristy, but they are probably worth experiencing, especially on a nice day when you can sit outside. Boston is also known for its baked beans, and certain restaurants, like Durgin Park, are known for them. Again, these restaurants are a little touristy and overpriced, but they are also very local.

Meanwhile Brookline has a vibrant Jewish community, and out by Coolidge Corner are several kosher restaurants. Zaftigs Delicatessen on Harvard Street is only kosher style (with huge waits, overpriced portions, and only so-so food), but down the street Ruben’s is the real thing, and I believe ice cream shop JP Licks does kosher ice cream as well. (There may also be kosher Chinese somewhere in the neighborhood too.)

Overall, though, one of my favorite restaurants in the area is the Elephant Walk, which serves Cambodian and French cuisine. There are two, but the nearest one is on Beacon Street near Kenmore. Slightly pricey, but worth it.

And then, as long as you are in America, you might as well enjoy our proliferation of chains, since that's the way we do business. Chain restaurants can still be local to certain parts of the country though, as we saw with Legal Seafood. Personally one of my favorites, which I always like to go to when I'm in the area, is Friendly's, which serves diner-type food and great ice cream sundaes. Bertucci's is an Italian restaurant that even my authentically Italian contracts professor enjoyed. Kelly's is popular for roast beef sandwiches. And then there's Dunkin' Donuts, whose offerings are as obvious as they are ubiquitous. Unfortunately the Boston-area DD shops don't generally seem to sell my favorite of their donuts, the chocolate creme-filled, but all of their donuts are good. And if you want to try drinking coffee like an American, theirs is quite popular.

I am not a big drinker, but in my time I've been to a few bars and pubs. Avoid any bar calling itself "Cheers." Cheers was an American TV show set in a Boston bar, which was roughly modeled on the Bull and Finch tavern. Just skip anything connected to that show. For best results, go to a neighborhood hole-in-the-wall. Boston has a large Irish immigrant presence (granted, mostly immigrants from 150 years ago...), so Irish bars abound (I don't know how much they are like bars in modern Ireland; they seem to be more of the Irish immigrant community as it once was.) I know of one on Beacon at St. Mary's, but there are surely many others. If you were going to get out that way, though, the Dugout on Comm at St. Mary's has more local flavor. But closer into the city center are several more ancient bars, like the Bell in Hand.

Things to see and do

When you are not preoccupied with the conference, there's plenty to see or do. First and foremost, avail yourself of the Freedom Trail, a pedestrian route connecting many of the city's most historic sites, from Fanueil Hall (pronounced "Fan-Well") to Paul Revere's house, and beyond. Most of these sites date from the American War of Independence (locally known as the "Revolutionary War" or "American Revolution.") Although little of the war took place in the city, it was ground zero for many of Britain's efforts to clamp down on its colonies and America's rebellion against them. Today these rebels are lauded as patriots and their history preserved accordingly.

Along the waterfront are opportunities for boat and ferry tours (you can even take commuter ferries). If you have a lot of time you can even take one out across Massachusetts Bay to Provincetown, at the tip of Cape Cod, a picturesque village. Nearby the convention center is the Federal Courthouse, a new building with a sweeping vista of the harbor. The courthouse (and most court hearings) are open to the public. Be prepared for x-rays and metal detectors and bring some ID, but in addition to admiring the building its proximity offers a chance to see some American wheels of justice in action.

Boston Common is famous for its swan boats, and for a pleasant walk you can either explore the park or walk down Comm Ave. You can also walk along the Charles River, on either the Boston side or the Cambridge Side, or both. There are several bridges along the way linking the two. (The Charles used to be famously polluted but in recent years has been substantially cleaned up.)

Near Boston Common is the theater district, which hosts traveling Broadway productions. With so many colleges and universities and art departments there's also plenty of smaller theaters around as well, and at least two improv comedy establishments: ImprovAsylum in the North End and ImprovBoston near Central Square in Cambridge.

The schools themselves are something to visit too: Northeastern and Suffolk both have law schools near downtown (Suffolk's is across from Boston Common). Boston University is just down the Comm Ave (the law school is a 17-story tower, you can't miss it...). Boston College is even further down Comm Ave, although its law school is located elsewhere. The Berklee School of Music is around the Copley area, and MIT is across the river in Cambridge. Harvard is also over in Cambridge and worth seeing for its architecture, given that it's one of the oldest universities in America. (Tuft's University is also on that side of the river, up past the Porter Square T stop.) Some of these schools may offer tours of their campuses.

There's also plenty of museums to see. One of the most famous is the Isabella Gardner museum, and the MFA is also world renowned, but there's plenty of others, especially near the Copley area.

Boston is a big sports town and takes its sports teams *very* seriously. Though I am no fan of them, the Red Sox play in Fenway, which is one of the oldest ballparks in the country. I believe there are no home games though during the convention, and even if there were it is very difficult to get tickets. But if you'd like to pay a visit to the venerable old park, it is just a short walk south of Kenmore Square.

If you stay a few extra days there's more to see beyond Boston. To the north along the coast you will reach Maine and its rocky, lobster-rich coastline. Due north is New Hampshire with its White Mountains, and northwest there's Vermont with its Green Mountains. (Both places are known for their maple sugaring and produce excellent maple syrup and candy. Vermont is also known for Ben & Jerry's ice cream.) To the east is Cape Cod and its sandy Atlantic beaches (plus the islands of Nantucket and Martha's Vineyard), and due south is the nautical Rhode Island. (Picturesque Newport was a summer retreat for America's most wealthy a century ago, who have left behind enormous mansions now open for touring.). Due west are the Berkshires and Tanglewood, which puts on classical music concerts all summer.

I am inevitably missing things, but one way or another I'm sure you'll have a great trip. See you there!

Friends don't let friends friend them on Facebook

2009-12-12T00:49:23Z

Facebook is always in the news for something or other, it seems. But this week it's in the news because of changes to its privacy model. Some of these changes are welcome and may even be effective, but many threaten to be disastrous for users' privacy, to the extent they haven't already been.

I myself do use Facebook, albeit reluctantly. It seemed like something I needed to do if I wanted to have any credibility as a cyberlawyer, to go there and see how it worked and what the appeal of it was. Because its appeal wasn't at all obvious to me: there was nothing Facebook offered in its closed, proprietary way that basic Internet technologies didn't offer in their more open and flexible way. I've never understood the point of closed systems. I didn't get them back when AOL was the closed system of choice either. As an Internet user, why restrict yourself to the finite universe of content and users AOL or Facebook provides when there is an unlimited universe just beyond its borders in the Web at large?

But perhaps I'm not sufficiently crediting individual preference. Just as I preferred a large university to a small college, many others prefer the exact opposite. Small feels safe. Predictable. Knowable. Limited. So perhaps that's why so many people have liked Facebook, because it felt like a quiet cul-de-sac away from the tumult of the information superhighway. A quiet place for just you and your friends. But maybe it's not the quiet, out-of-the-way place people thought after all, thanks to Facebook's inadequate privacy model.

There are lots of horror stories about Facebook users being "outed" in some unfortunate way in their real lives by something seen on their Facebook pages, like people being denied insurance coverage for looking too healthy, or even fugitives ending up captured because they posted about where they were. But interesting as those stories may be, what I want to focus on is the illusion of privacy Facebook fosters for its users, which thus enables so many to later be blindsided when content they thought was private is later proved not to be. In particular, I want to focus on the weakest link: friends.

]]> The Facebook privacy model has many limitations, not the least of which is the cryptic and unintuitive UI that prevents even the most privacy-conscious people from using what privacy protections Facebook does afford as effectively as possible. But the most major shortcoming may be on its conceptual model of privacy through relationships.

In real life, it's a sensible model. You know whom in your life you trust, and with what information. You know who will keep your secrets, and you endow people with your information accordingly. Facebook, however, despite its concept of "friending," does not adequately mimic real life "friending." Real life has degrees of friendship, whereas for Facebook it tends to be all or nothing and it is hard, if not completely impossible, to endow "friends" with varying degrees of your information in the kind of nuanced way you would in real life. I myself don't have too many privacy concerns with Facebook -- most of my Facebook content is my Twitter stream, which is public anyway -- but I still "friend" fairly few people because it presupposes an underlying relationship of trust I'm not always sure is well-founded.

To be fair, some of the current changes to the Facebook privacy settings give back a little more control by plugging some of the biggest holes, like by doing away with geographical networks. Personally I think there could be some utility in geographical networks, but the Facebook implementation never came close to capturing it. Instead it presumed trusted relationships among members of these potentially enormous communities where none should ever have been so assumed. Thus any change by Facebook ceasing to presume trust is a good one and most welcome.

But even among Facebook relationships that aptly analogize to trusted real life ones, there remain underlying trust problems. It is simply too easy for someone, someone who ordinarily would guard your information with appropriate discretion in real life, to expose it online.

Admittedly, Facebook is not the only problematic online forum for this kind of thing. People who post about their own lives on the Internet inherently threaten to reveal information about the lives of the others they interact with. Often there's enough obfuscation that those other people may effectively remain anonymous, but it's become a particular issue for those who tend to tweet about where they are. It may be fine to let people know your GPS coordinates when you are at a train station, but what about when you are at someone's home?

But sometimes it's not a lack of discretion that causes too much about another to be revealed: sometimes it's the tool itself that causes such disclosure, and here again Facebook is justly criticized for its architecture that makes it so easy to reveal so much about others -- and its insistence that there's nothing wrong with that. In Facebook's view, certain information is never private in the first place, such as information like friend lists.

I offer an example of why Facebook is wrong about that: I know someone who is somewhat famous, and as a consequence of his fame he needs to guard his privacy more carefully than most. If he wanted to use Facebook to intermediate his connection with his fans perhaps this situation would be less of an issue, but his lack of disclosure (in fact, his previous outright denial) of any Facebook presence suggests he is not interested in using it as such, as is clearly his right to decide. If he did want to use Facebook simply for communicating with immediate relations, with all his privacy settings locked down, plus a fairly common name, he should be able to stay pretty well hidden on Facebook except to those immediate relations he revealed himself to.

Such as his brother, whom I also know a bit, and who happened to have commented on a status update appearing my news feed that was posted by someone else I'm "friended" with. I wasn't yet "friended" with the brother, who also has a common name, so I clicked on the comment to see if he was the person I knew. His profile was pretty well locked down so there wasn't a whole lot of information to go on, except there was his friend list, right there in the open. And there in the middle of his it was the smiling face of his brother's avatar. I guess he was on Facebook after all.

Does this kind of thing matter? Well, in theory Facebook users like them are still ensconced behind their locked-down profiles, and they don't have to respond to any friend requests they don't want to. Of course, then they have do deal with the not-inconsequential social consequences of ignoring friend requests. But let's not look past the basic problem: if you thought you were hidden, wouldn't it be alarming to discover you actually were not?

Moreover, what other such surprises are out there? What other information about you is escaping from your control? And who is getting access to it? While Facebook has relented somewhat on whether friend lists should be public, the only option it offers is to hide your own list; you still can't force your friends to hide you on theirs. No matter how well-placed your trust in your "friends" that they will protect your information with appropriate discretion, there's only so much discretion the Facebook tool will allow. In addition to the limited and confusing privacy settings interface, the Facebook application programming interface is also notorious for allowing app developers to suck in large amounts of its users' data, including large amounts of their "friends'" data as well, when people use those applications.

But what's most concerning about the situation is that Facebook's users don't expect it. Facebook fosters the illusion that it's a private place, when in reality it is already anything but (and perhaps even pointedly becoming even less so). Ironically it is Facebook, which gave us the term "friending" as a verb, which is proving to be no friend to its users at all. In real life a friend who shares information about another indiscreetly will face real social consequences, including a loss of trust. Perhaps it's time for Facebook start to face that consequence itself.

In the midst of gorillas

2009-10-06T16:55:27Z

Rwanda is sort of odd as a tourist definition. Its main city, Kigali, is a fairly clean, temperate, and orderly city by African standards, but it's spread out over several hills and valleys with no tourist-friendly mass transit system. Of course, apart from the genocide museum, there's not much to see in the city. It does have many quality hotels and restaurants (it even has a casino), but these mostly cater to the foreign ex-pats living and working in the country.

Rwanda's main tourist attractions lie outside the central capital, in the further corners of the country. To the east is Akagera, the portion of the country most similar to Kenya and Tanzania and home to the elephants, giraffes, hippos, crocodiles, et al. that one would expect to see on a safari. To the southwest is the lush rainforest of Nyungwe Forest, and to the northwest Parc National des Volcans, which is home to Rwanda's share of the volcanic range that runs through the Rift Valley section of middle Africa. (Rwanda's volcanoes are all extinct, but some of the ones on the other side of the border with the Democratic Republic of Congo remain active.) Meanwhile, running along much of the country's western border is Lake Kivu, a sizeable lake separating Rwanda from the DRC. Several cities and towns dot the Rwandan coastline, including Gisenyi to the north.

Unfortunately I never made it to Akagera. By the time my schedule settled down it was too late to research and organize affordable transportation. (Nothing in Rwanda is more than a few hours away from Kigali, but unless you are prepared to take local buses or matatus, which still requires figuring out, the other options are to take an organized tour or organize your own transport. I think the latter, especially if you join up with others, makes the most sense. Private car rental may be possible in Kigali, but for sanity's sake it probably is a better idea to hire a driver with a car.) But for the second weekend we headed to points west.

]]> Our first stop was Gisenyi, on the shores of Lake Kivu. Lake Kivu has some unusual properties for a lake: because the region is volcanic, the ground produces a lot of carbon dioxide and other gases. In theory the carbon dioxide poses a threat to the region: in 2002 a carbon dioxide build-up in the bottom of a similar lake in Cameroon exploded up to the surface, saturating the local atmosphere with CO2 and suffocating all life in the area. No one knows if or when that might happen in Lake Kivu, or what can be done to prevent it, but meanwhile the country is looking to harvest the methane that's also produced, which may help.

In the meantime, it's a very nice place for a break, with a nice beach and several good hotels along its shores. We stayed in the Serena, which is part of a South African chain. It was probably a four or five-star quality hotel, costing $100-$150 per night. There are other hotels in the area too, which including the bizarrely sterile but otherwise well-regarded Gorillas Hotel, where we ate dinner, but the Serena may be the only one right on the beach. A small resort, it offers the rental of sea kayaks, sailboats, and windsurfboards, but I couldn't help noting the unique waiver they made customers sign -- it was the first time I've ever seen one that advised, "Do not sail to Congo."

Because of all the gases the lake is supposedly bilharzias-free, so I went swimming. I once read about a program where swimming teachers went to Africa to teach locals how to swim, and as a 20+ year veteran swim teacher I've often thought it would be something I'd enjoy doing. Never followed-up on the idea, but splashing around in the lake I got a taste of it. A man was already in the water working on swimming skills with some women. I introduced myself as a swimming teacher and ended up taking over the lesson! One at a time I worked on front floating, back floating, and crawl stroke for him and the three women. Moreover, I did this all in French!

Linguistically Rwanda is interesting. Everyone speaks Kinyarwanda, and some, particularly in the east, speak Swahili. Those who have some education then speak either French and/or English. Traditionally, it would have only been French, but with the genocide and all the refugee waves pre- and post-dating it, many Rwandans ended up growing up in their English-speaking neighbors' countries. (The current Rwandan president, Paul Kagame, for instance, grew up in Uganda and speaks no French.) But others grew up in Congo and Burundi, which are French speaking. Thus, visitors to Rwanda who speak no French can usually get by, but I found my ability to speak French conversationally enormously helpful -- particularly for swimming lessons and cab rides...

After the swim, it was time to head towards the Volcanoes National Parc. The guesthouse we stayed in just outside was considerably more rustic (although it did have running water and electricity) but beautifully located on the gentle lower slopes of the volcanoes. I wandered out to the road to take in the scenery, where some local boys happened upon me. In the silly goofball way of 8 year old boys they tried out their tiny English vocabularies with me. Then they noticed my camera and started hamming up for the pictures. Normally I use a film camera, but on this trip I brought my mom's old digital camera and was trying it out. Which ended up the perfect toy for the moment, because I could snap the pictures, then run around and show them what they looked like on the view screen.

But for the next day I decided to stick with my usual film camera because the digital one was sort of broken and I don't really know how to use it. And I knew I'd want to take pictures, because this was the day we were going to see the gorillas. (The digital pictures are also tinting awfully grayish blue; although the sun was setting behind dark clouds, Rwanda was generally a much brighter place than the pictures would suggest.)

The gorillas are probably Rwanda's biggest tourist attraction. There are only a few hundred mountain gorillas in the world, and most of them live in the Rwandan park. The genocide and related fighting has been hard on them, and today the Rwandans and gorillas find themselves in an interdependent relationship. While it might be better if the gorillas could be left to roam an expansive natural habitat in peace, if it weren't for the tourism they would be hunted and their remaining habitat decimated. Because they are such an attraction and revenue source for the country (a permit to go see them costs $500) it is in Rwanda's interest to protect them and their environment.

At 7am people with permits congregate across the street from the guest house to be divided into groups of eight. Each group then drives off to a trail head leading up to where a group of gorillas has recently been spotted. They don't typically move too far in a day, and the park sends up trackers in advance to help locate where they are that day. Our group, the Umubano group, was on the lower portion of Mt. Bisoke.

This group is a fairly new group. Charles, the 18 year old silverback, had been a subordinate silverback in a different gorilla group. This situation didn't serve his ambition, so he challenged the leading silverback and ran off with a woman to form his own group. He then raided other groups and got more girlfriends, and now lives with about a dozen gorillas.

After driving up an absurdly rough road we parked at the trail head. We crossed some fields of potatoes and chrysanthemums (their oil is used to make a natural pesticide) and then headed up the steep, narrow trail. It was a tough, though not impossible, climb. Sort of slippery, the biggest problem was that there were thorns and stinging nettles all around. I regret not wearing canvas workgloves, but even wearing long sleeves and long pants didn't completely help. On my way down I slipped and my entire elbow landed on a stinging nettle plant, whose stinging nettles then got stuck in my shirt and continued to sting me until we finally got out of the woods and I could take it off. Fortunately, nature is balanced, and the sap from a different plant provided a balm to lessen the sting and deflate the wad of hives that had formed all over my elbow.

But after climbing about an hour and a quarter, suddenly we were stopped by the guide. The trackers had found the gorillas, and we began our final approach. There is no particular danger to seeing the gorillas, but the powerful silverback is basically the king of the group and it is basically his "court" we are petitioning to visit. The gorillas are habituated; they understand people and see them every day. But the silverback must still be appeased, and the guide will frequently emit a guttural growl to do so.

In this case Charles was busy lounging in his nest and not particularly put out by our visit. He was, however, pretty huge -- and not even done growing. Meanwhile, at the other end of the scale, a mother was nursing and cuddling her two-month old baby. In between there were also some other kids, including a three year old that swung around in trees mugging for the cameras, and a two year old alternatively pounding and spinning in the dirt and play-fighting/testing the patience of his older brother.

My descriptions are not doing the experience justice, and the words inherently reduce the memory. In some ways it seemed completely normal to see the gorillas. They looked just like animatronics... (again with the Disney...) Charles looked like King Kong. But there definitely was the sense of being in the company of wild animals. And yet, they hardly seemed like animals. Darwinists are right; these are our relatives. Unlike other animals we have to anthropomorphize, it took no great feats of imagination to see their humanity. The baby grabbed at its mother's hair, and the mother kissed it back. The gorilla swinging in the tree miscalculated the strength of the tree and comically came crashing down, at which point he studied his situation, and figured out how to climb back up. Charles groomed himself with his massive digits and opposable thumbs. And the brothers fighting and playing, except for the chest thumping and overall fuzziness, looked like any brothers you might find anywhere.

Lake Bunyonyi

2009-10-06T16:06:49Z

I just returned from my first trip to Africa. I was mostly in Rwanda, but over the first weekend I was there we drove a few hours north to Lake Bunyonyi just beyond the border in Uganda.

]]> Despite the proximity to the Equator, the hills of the region are at such altitude that it's not all that hot. (Being equatorial, though, the sun does tend to set rather promptly after 12 hours, which took some getting used to.) But it makes the parts of northern Rwanda that we drove through rather verdant. A densely populated country that's getting denser all the time, little land is left uncultivated, and every spec of hillside is covered with a patchwork of terraced plots.

Once over the border to the north, the terrain of Uganda opens up in a way reminiscent of Napa Valley geography, although here, like in Rwanda, nearly all the available land on the hillsides is tilled as well. Yet while life here, like in Rwanda, seems rural and rustic, it's another place, a different place, with a different language, people, and history. So much of what is seen in Rwanda dates back to 1994, when the genocide destroyed the country, its infrastructure, and its people. What you see there now is either what remains ruined from that time, or what has been explicitly repaired subsequently with foreign funding. Thus while in Rwanda the houses are often dilapidated but the roads are in excellent shape, in Uganda, which has had more internal stability and less foreign attention, the situation is generally reversed.

About a half hour after crossing the border we reached the town of Kabale, where we turned left onto the main drag through town. There were plenty of cars on the road, as well as mopeds (motos), bikes, pedestrians, cows... Turning onto the road towards the lake we also passed lots of little kids minding small herds of goats (older kids minded the cows). One thing that's striking in both Uganda and Rwanda (and reminded me of Cambodia) is the tendency of little kids to smile and wave with unbridled enthusiasm at the cars that drive by. Although occasionally older kids do it, the kids of preschool age wave with a particular form of innocent friendliness, completely devoid of any cynical inkling that might inhibit them. (Unfortunately it makes driving treacherous having kids walking and playing so close to the roads. The "sledding" some did on empty plastic jugs down dirt mounds would have looked a lot more fun if they weren't ending up in the streets.)

All around the area people were working hard, tilling land or herding animals, but in the midst of it all is the lake. It's a clear lake, free on bilharzia, meaning people can swim and boat on its peaceful waters, and several hotels catering to foreign travelers have sprung up to serve them. We tried Nature's Prime. Originally developed by some Swedes in 1996, it sits on its own small island and hosts several private cabins and elevated tents, as well as a central lodge. Each cabin is far enough from any others to feel completely private and is oriented so as to take in its own gorgeous view of the lake and surrounding hillsides.

Hillsides that aren't all that far away. Though you may be in the middle of a lake and feel you are in the middle of nowhere, you're in the middle of a community. A boisterous community of farmers farming, children laughing, roosters crowing, cows mooing.... And cell phones ringing, because even though we were in the middle of Africa, it's still the 21st Century there too. (Even my phone surprised me with the vibration of an incoming text.)

Worried it would be hard to get a room, we had called ahead to reserve, but we needn't have worried: we had the whole island to ourselves. A large cabin, with electricity and running water, a yummy three-course dinner and a large breakfast cost us $36 a person. (The visa to get into Uganda also cost me $50.)

It was very pleasant being on the island, and a little disorienting. The whole time on the island I kept flashing back to Disney World. Our stilt-mounted cabin reminded me of the Swiss Family Robinson treehouse. The log-timbered lodge with campfire kitchen out back felt like it belonged in Frontierland's Thunder Mountain Railroad. The throngs of squawking birds (the lake's name means "place of many little birds") in the morning seemed right out of the Jungle Cruise, and the drums calling people to church on Sunday felt like the soundtrack to the Tiki House. But whereas Disney World presents a fictionalized, plastic vision of far-off places, here it was all startlingly real and authentic.

Lockerbie revisited

2009-08-23T17:59:51Z

Mike Semple Piggot, aka "CharonQC" has a post on his blog critical of the legal logic employed by Scotland in releasing and repatriating convicted Pan Am 103 bomber Abdel Basset Ali al-Megrahi far earlier than his sentence otherwise would have allowed for. Having invited comments, I posted the following (with a few edits), suggesting that the role of retribution in justice has been seriously overlooked in this matter, and thus explains why America and Americans are so upset:

]]> I should say here that I am an American. I should also say that I believe myself to be much less a retributist than many other of my fellow citizens. The view from abroad of American attitudes towards crime and sentencing may be accurate, but I myself am rarely among the "string 'em up" ilk. (Further, I believe that this current administration is also much less so than their Republican brethren.) Philosophically I much prefer to focus on the rehabilitative aspects of sentencing than the more vengeful. And yet even my sensitivities are offended by this turn of events.

I point you first to this article about local reaction to the release in The Record, a newspaper for northern New Jersey, a suburb of New York City (where, for the record, I grew up and was living at the time of the bombing). Remember that Flight 103, an American-flagged carrier full of Americans, was on its way back to New York. New York may be this large global metropolis, an entry point into America's vastness, but for many of us it is the final stop. New York is our "home town." When terrorism strikes New York it of course strikes America and the world, but for us it's a kick in our gut, an injury to the heart of our local community.

It's a wound that needs salving. And that's where the retributive argument comes in re: Lockerbie, because for all intents and purposes, it has not been.

Or maybe we thought it was, but now it feels like the sutures are getting ripped out. We trusted Scotland to represent our interests in its proceedings against al-Megrahi. We HAD to. Libya refused, despite penalty of sanction, to extradite him to the US to face charges for the harm he was alleged to have caused us. We were faced with the practical choice of Scottish justice, or no justice at all. So we took the leap of faith in believing Scotland could adequately stand in for us in prosecuting where we could not.

It would appear we were wrong. Because even without condemning the Scottish decision to commute the sentence (perhaps it really is consistent with Scottish law?) it shows that the only community capable to seeking redress for its own injury is the injured community itself. No one else can speak for it, for it isn't just the result that matters (guilt or innocence, sentence or pardon) but the process of reaching that result. The very exercise of causing a defendant to answer to the aggrieved community, even if then exonerated, is what exorcises the injury. Moreover, even if America had on its own behalf reached the same result -- a sentence commuted "in mercy" -- it would have been OUR mercy to give. Instead, here Scotland has stepped in and unilaterally granted it on our behalf, yet against our will.

I hear the arguments that the early release and repatriation is the Scottish way and consistent with the Scottish legal ethic. That may be, but Scotland was in an unusual position of needing to advocate for more than just itself. It certainly had its own interests at stake, but it also had America's, and Scotland's ease in canceling out the result of the proceeding America entrusted it to reach seems an abrogation of its commensurate duty to this other community.

And not without consequence. Qaddafi now looks presciently brilliant to have manipulated the situation to get the trial in Scotland in the first place. What a "compromise" that turned out to be. What state sponsor of terrorism would ever refuse such a compromise in the future? But what chance is there for America to ever accede to such an arrangement again? The world often complains about America's willingness to reach across the world to avenge its own injuries. But with this state of affairs America is learning that it may have no other choice.

Contract lawyering II

2009-08-21T17:37:14Z

From time to time the legal blogosphere erupts into discussion about contract lawyering, or, more specifically, contract document review. And this week seems one of those times.

In American litigation there's always a stage known as "discovery," where parties request documents from each other. In commercial litigation these requests often result in voluminous productions of documents, which require review at least twice: once before it's produced, to ensure that the documents being disclosed are responsive to those requests and also not privileged, and once when it is received by the requesting party to see if it is helpful to its case. Both reviews (though particularly the former) can be extremely labor intensive. While they used to be done in vast warehouses of bankers' boxes, thanks to advancements in technology the reviews can now be done electronically, by clicking through documents on a computer screen. (On the flip side, however, this same technological innovation has also increased the workload, as the ease of emailing and electronic document creation has vastly expanded the universe of documents that need to be reviewed.)

So to handle the workload, many law firms turn to contract lawyers to help them. As I've written before, I think contingency work should be a perfectly legitimate way for licensed attorneys to make a living. In fact, I think contingency work should be a legitimate way for nearly everyone to make a living. Instead of employers having to guess at their workloads and permanently staff up in order to cover the busier periods, bearing all that overhead for salaries and benefits, they can bring on people as needed, who get paid more cash for their time in lieu of the stability and benefits of a permanent position. As long as the contractor prefers this arrangement -- and many, for many reasons, do -- everyone wins.

Or can win. But clearly not everyone does, and a few blogs have sprouted to lament the plight of the contract doc reviewer.

As someone who has done contract document review I sometimes follow these blogs in order to keep abreast on the industry, but at the same time I'm often put off by the overwhelming bitterness they espouse. At the same time, underneath the anger I think they reveal some valid, and unfortunate, points about this aspect of the legal profession. So I was moved to answer some of the recent criticism of these blogs I saw on another.

]]> Susan Cartier Liebel recently hosted a comment by a former document reviewer in one of her posts at her Solo Practice University blog. Susan is very enthusiastic about lawyers knowing their worth and finding ways of tapping into it through the independence of private practice, and I don't mean to impugn that enthusiasm, or, necessarily, the commenter to the extent that she echoed that encouragement for contract document reviewers who are dissatisfied with that sort of work.

Unfortunately I thought the commenter was at best glib about the logistics of contract document review, and correspondingly condescending. While she's right to say, "if you don't like it, do something else," it's naive to pretend it's so simple to make the switch, and it ignores the fact that many of the unsavory qualities to contract document review are a needless disgrace to the profession. Why, I commented, must contract document reviewers be treated to the scorn of their fellow attorneys?

Contract doc review SHOULD be a legitimate work choice, imbued with the respect of the profession. For we are actually professionals — full-fledged lawyers, in fact, with the commensurate duties to clients, the bar, etc. — doing necessary work to advance clients’ interests. However, as those blogs often point out, and as [the comment] itself exemplifies, it is often denied that respect.

I also criticized comments that implied it was so easy to switch gears and move on to other legal work.

[C]hanging one’s circumstances is much easier said than done. Even the most optimistic and driven person is going to have issues. At best the [contract document review] work is simply too feast-or-famine to leave much in the way of time and energy to pursue other avenues, and the pay too inadequate to have enough of a cushion to take that leap. It’s also hard to plan for the long term when you are busy in the short term trying to figure out where your next paycheck is coming from. Even the highest doc review rates (which are plummeting precipitously) do not provide enough of a cushion to comfortably and confidently ride out the slow spots, particularly as more lawyers compete for diminishing assignments and bar obligations, loan repayments, et al., keep helping themselves to sums predicated on much larger incomes.

I don't think it's impossible, mind you. But difficult. The current economics of becoming a lawyer are simply unsustainable, built upon the myth that it's necessarily a well-paid profession, when it only is for some. So of course these bloggers scorn the ABA when they come asking for membership dues when ABA policies, such as those advancing off-shoring document review work, make their livelihoods even more strained.

Moreover, as I wrote, I don’t even think that’s the biggest problem with the ABA ethics advisement enabling offshoring. As a lawyer with professional and ethical obligations I believe offshoring amounts to a dereliction of those duties. The reason contract attorneys have been hired in the first place is because we have those obligations. We are bound to use professional judgment in our reviews, as well as protect client confidences, and there is recourse with our local licensing authorities if we don’t. Not so if privileged and confidential information is sent overseas. Yes, maybe the review may be cheaper. But you get what you pay for.

But bottom line, if this work is important enough to be done by lawyers, then it's important to treat the people who do it with the respect those qualifications have earned them. When that respect is lacking, everyone -- lawyers, clients, the profession -- is harmed.

Blawg Review #219

2009-07-06T09:15:13Z

This past week we celebrated an important anniversary. That's right: July 5 was Huey Lewis's birthday.

Though other 80s rock stars have been in the headlines of late, I've been ~~plotting~~ planning this Huey Lewis and the News-themed Blawg Review for quite some time now. People who know me know I'm a big fan of Huey Lewis and the News (hereinafter "HLN"). People who know me know their music has been a big part of my life, particularly in recent years as I've pursued my legal career.

But while I had the prescience to become a fan some 20+ years ago, obviously not everyone has been so fortunate. It would therefore be very wrong of me to waste this opportunity to share all the great things I know about this band and their music.

So join me in this week's Blawg Review as I share the latest in legal blogging along with this crash course in HLN appreciation.

]]> In the beginning

A logical place to start talking about Huey Lewis and the News is obviously with Huey Lewis himself. Born Hugh Anthony Cregg III to a jazz drumming radiologist father and WWII Polish refugee artist mother, he spent much of his childhood growing up in the San Francisco Bay Area, surrounded by the beatniks and artists his parents knew (poet Lew Welch later became a step-father figure to him), until high school, when he went off to prep school in New Jersey.

Blawg Review > As someone who went to high school in New Jersey this fact always interested me. Law firm Stark and Stark has a New Jersey-focused blog, and recently Barbara Strapp Nelson had a post about the history of New Jersey land title, which also interested me.

After achieving a perfect score on his math SATs (he also had skipped the second grade), Huey was admitted to Cornell's engineering program. But before he went his dad told him to take a year off and travel around Europe.

Blawg Review > In 1984 Huey told David Letterman how he managed to get himself to Europe. After spending his money crossing the country he had none left for the ticket. So he camped out at JFK, befriending gate agents, until he was able to stowaway on a flight over. Obviously, as this post from Popehat notes, Huey must not have been carrying comics with him, or else the TSA would never have let him anywhere near a plane.

In the process, he learned to play harmonica, sitting by the side of the road waiting for rides.

Blawg Review > In the David Letterman interview Huey said his favorite country that he visited was Yugoslavia. Of course, now there's no such thing anymore, and I'm not quite sure his travels necessarily would have taken him through Kosovo. (Julian Ku at Opinio Juris notes that Kosovo is now a member of the IMF and World Bank, a somewhat complicated turn of affairs given Serbia's unhappiness with international recognition of Kosovo's independence.) On the other hand, he definitely spent time in Africa. (Aurelia J. Schultz posts on Afro-IP about an unfortunately-named joint venture in Nigeria, bound to offend just about everyone.) And chances are good he also spent some time in France. (Gilles Cuniberti has a post on Conflict of Laws.net about a recent decision by a French court refusing to uphold a surrogacy ruling by an American court as being against French public policy.)

His experience in Spain also proved pivotal to his musical career.

Blawg Review > Carmen Márquez Carrasco writes about Spain's move away from exerting universal jurisdiction in this post on IntLawGrrls.

In Spain he played his first paid gig, which, along with his busking, taught him he could support himself playing music. He realized he was, "Never going to work for anybody."

Blawg Review > That spirit of independence is captured in that of the solo practitioner. Carolyn Elefant has this post on My Shingle about efforts by the New York courts to stop wasting so much of their attorneys' time, and Susan Cartier Liebel recently wrote about the virtues of working from home on Build a Solo Practice.

Still, upon returning to the U.S. he enrolled in the engineering program at Cornell, just in time for the SDS to start taking over the campus.

Blawg Review > Cornell is not the only school that has had issues. Elie Mystal at Above the Law discusses the dean-resignation controversy at DePaul and Dan Filler has a post about the controversy at the University of Illinois at The Faculty Lounge.

After a year and a half he left college and returned to the Bay Area where he eventually fell in with a group called Clover, whose other members included Alex Call (who later wrote the song 867-5309/Jenny) and John McFee (who later joined the Doobie Brothers). After grinding for years in semi-obscurity in California, Clover made a fortuitous encounter: UK musician Nick Lowe and his manager saw them one night, liked them, and through that connection Clover moved to the UK to record two albums: Love on the Wire and Unavailable (sometimes called, more sensibly from a marketing perspective, simply Clover).

Blawg Review > Not that everything's necessarily perfect in the UK. Geeklawyer chronicles the troublesome idea of merging the libraries of the Inner and Middle Temples on his blog, and CharonQC blogs about the latest embarrassment involving Michael Martin and Parliament at his. Meanwhile at The Invisible College Tobias Thienel discusses the conflict of laws issue between the European Court of Human Right and UK law in the case of Al-Saadoon and Mufdhi v United Kingdom.

Clover's music is sometimes referred to as California country rock, but it's actually more soulful than that description might conjure. My favorite song on the two albums Clover recorded with Huey as part of the line-up is Motown-inflected "Take Another Look," and in terms of HLN history it seems an emblematic snapshot. Huey had joined Clover as a harpist (picture here; caution: polyester...), but over time took over some lead-singing duties, and on this song you can hear not only his harp but also his still raw, yet emotive, lead vocals. You also can hear the soothing bass vocals of keyboardist Sean Hopper, whose own musical soulfulness in voice and keyboard stylings would later be an important ingredient in the News' sound.

In England Clover's sound was also often referred to as pub rock, which was unfortunate, because the day Clover landed in England, the Sex Pistols played their first gig and no one wanted to see pub rock in England anymore.

Half of Clover (including Sean, but not Huey) backed Elvis Costello on his debut My Aim is True album, which was reprised in a performance in 2007, while Huey appeared on the Dave Edmunds/Rockpile album Repeat When Necessary playing harmonica on "Bad is Bad" (a song written by Clover) and Marcus David's "Catch Me If You Can" (he also sang on the track). (He also worked with Thin Lizzy's Phillip Lynott, whose "Boys are Back in Town" the News would later often cover in concert.) But soon Huey was back in Marin County looking for a new musical adventure. A local club called Uncle Charlie's had an opening on Monday nights, so Huey started inviting the local musicians he knew for a night of covers and jamming. But as for lead singers; now that was his job.

Eventually six musicians from the Monday Night Live line-up came forth and formed a band: Huey, Sean from Clover, Bill Gibson (drums), Johnny Colla (sax), Mario Cipollina (bass), and Chris Hayes (lead guitar).

Blawg Review > With the help of Blawg Review sherpa Colin Samuels of Infamy or Praise I found that Bill Henderson has a post about the relevance of law school to the practice of law at the Legal Profession Blog, Sean O'Connor has a guest post lamenting AT&T's trademarking practices over at The Legal Satyricon, and Mario Madrid has a post about the perils of pain pills at Houston Criminal Law Journal. Meanwhile Christine Hurt, who may or may not go by "Chris," has a post at The Conglomerate comparing Madoff to Dillinger and society's relative attitudes towards each, and John Steele, who may or may not ever go by "Johnny," had an interesting conversation with Brad Steele about Sotomayor and Belizean Grove that was recorded on this blog post at Legal Ethics Forum.

Bill, Johnny, and Mario had had played in a band called "Sound Hole," a local Clover rival that once had backed Van Morrison, whose sound was something of a cross between Tower of Power and Steely Dan. Bill also played with other local bands including SVT, while Johnny had played with Sly Stone and Mario with his brother John Cipollina of Quicksilver Messenger Service, among others acts. Chris, who comes from a family of musicians (his sister Bonnie is a singer/songwriter whose credits include several hits for Bonnie Raitt, his brother Kevin plays drums with Robert Cray, and another brother Jonathan is a guitarist with his own band), meanwhile had extensive jazz credits. Ultimately the News sound tended to gravitate towards R&B (Huey had always preferred musicians like Otis Redding to the psychedelic bands his mother took him to see at the Fillmore), but at the same time there were always other influences to pull it in other directions.

Huey Lewis and the American Express

Monday Night Live eventually came to record a song called, "Exodisco," a disco spoof of "Exodus." This song led to a singles deal with Phonogram, which funded the studio time necessary for HLN to make a demo. This demo got them a manager, who then got them a gig, which then got them a record contract with Chrysalis Records. But they still didn't have a name.

One of the important facts of HLN history is that by the time the band formed, its members had some experience under their belts, lessons learned of what worked and what didn't, from how to behave as professional and responsible musicians (a maturity which certainly has helped enable their career longevity) to how to structure themselves internally. While the band is an ensemble, the amorphous structure of Clover, which had several singers, was dispensed with in favor of the clear structure of a frontman and his band: Huey Lewis (as he was now calling himself) and the... and the... and the American Express. ("Don't leave home without them.") Except that name didn't last long for fear the band would soon find itself sued.

Blawg Review > Trademark lawyers have been busy blogging this week. On her IP-Brands blog Shireen Smith comments on the landgrab spawned by Facebook's debut of personalized URLs. Ron Coleman contemplated Burger King's messy trademark situation on Likelihood of Confusion. Michael Atkins noted a case about unclean hands in trademark litigation at Seattle Trademark Lawyer. And Marty Schwimmer recently posted about another decision saying that the removal of the UPC symbol on grey market goods could be actionable on The Trademark Blog.

So "Huey Lewis and the News" they became instead, and in 1980 they put out an album of the same name. It was not a commercial success, nor was it necessarily well-produced. The key thing to remember about HLN is that they are the consummate live band; formed out of jam sessions, they always were. By recording this album quickly, with a minimum number of takes, they hoped it would capture their live sound. But recording an album is not like performing live; the act of recording requires its own method, and the sound on the record is a bit distant. On the other hand, some key features to the band's overall sound emerged, particularly on songs like "Some of My Lies are True" and "Trouble in Paradise," which they still play today. Features like sax solos. Backing vocals. Keyboard and bass line textures. And, most notably, an overwhelming energy, especially when playing live.

Fortunately their record contract allowed them to do a second album, and they managed to win the right to produce it themselves. It is something I've always admired about this band -- indeed, it may be a critical factor in why I ever liked them at all -- that the creative output of this band is their creative output. However much anyone wants to criticize the commerciality of any of their music, unlike so many pop acts, there's no contrivance to it. No record executive or producer somewhere sat down and concocted the idea of Huey Lewis and the News; they are who they are, and their art is what they as artists create.

Which is not to say that they don't do covers. In fact, the first hit HLN ever had, off of this second album Picture This, was "Do You Believe in Love," a song written by famed producer Mutt Lange (who had produced Clover's UK albums years earlier). But HLN's songwriting has its own potency. Take "Workin' for a Livin'," a song that 27 years later still has enough legs that people like Phil Vassar and Garth Brooks have covered it. One of HLN's more rockabilly songs, the lyrics retain a timeless quality, talking about the plight of the working person.

Blawg Review > Daniel Schwartz comments on the impact of Ricci v. DeStefano on employers on the Connecticut Employment Law Blog, and Andrew Moshirnia at the Citizen Media Law Project has this post on employee social networking.

Musically, however, other songs from this album stand out as pivotal in the evolution of HLN. "Change of Heart" and "The Only One" exhibit the kind of melodically blistering guitar solos Chris would bring to so many of their hits, as well as the seemingly effortless yet powerful percussive choices Bill would drive them with too. While both pre- and post- News Chris's musical heart generally lies with jazz and gospel, all his solos have a distinctive quality to them apart from those influences. Rather than relying heavily on power chords, his solos seem to dance around the fretboard in quick successions of notes. Sometimes his solos sound almost like they are being sung, a second voice picking up the story where Huey's leaves off.

Bill's drumming meanwhile constantly captivates me. A devotee of Zildjian cymbals for the crispness of their tone, he nonetheless isn't a cymbal-happy flashy percussionist. Steady, constant, and solid as he pushes the songs, his patterns and tones become an integral part of the story each one tells.

Another significant feature to this second album was the introduction of the Tower of Power horn line. HLN had always had horns with Johnny's saxophone (although on some songs he plays guitar instead). But on "Hope You Love Me Like You Say You Do" the entire 5-piece TOP horn section appeared. And soon began to join HLN on stage as well.

Rise to power (of love)

The success of Picture This bought HLN another bite at the apple, and soon they were hard at work on their next album. Unfortunately once they were ready to turn it over to Chrysalis, Chrysalis nearly fell apart. Paranoid, they hid the master tapes, their only leverage, while they hit the road and waited for the dust to settle.

Blawg Review > Hard to imagine record companies being so imperfect, isn't it? It's not like they like to sue music fans for $2 million dollars or anything... Ray Beckerman at Recording Industry v. the People keeps track of the recording industry's antics, and at this post asks for help tracking several RIAA cases on PACER. At At Last ... the 1909 Copyright Blog Ben Challis also takes the measure of some recent RIAA cases.

But Chrysalis eventually pulled itself together, the album was released, and twenty-five years ago, almost to the day, Sports hit #1 on the Billboard charts.

The features to the HLN sound that had appeared on earlier records were fully presented on this one too. Including two other elements not previously discussed: the contributions of Johnny and Mario. While actually a very sweet guy in person, on stage and musically Mario cultivated a rather demonic, hard-edged presence. Which is not to say he was flashy; Mario believed bass players belonged in the back, and in HLN arrangements that's where the bass line generally remained, providing the thread needed to round out the band's overall tone. At the same time, his taste for edgy rock helped ensure that no matter how towards R&B and soulful notions HLN listed, their songs would always have a rock edge to them too.

However it might be Johnny's role in the News that sets HLN most apart from any other band. His contributions lend a unique sound no other band features. For one thing, he sings, and if you listen to Sports you'll hear him singing a lot. Often when you think you're just listening to Huey, or Huey's voice double-tracked, you're actually listening to Johnny's voice, constantly harmonizing and melding with Huey's. Secondly, he plays saxophone, and often at the same time that Huey plays harmonica, which is a combination of instruments not often heard elsewhere.

Think for a minute about "The Heart of Rock and Roll." Snobbish critics have panned the song, mostly because its lyrical paean to rock and roll necessarily lacks a save-the-world quality to it. Nonetheless, the lyrics are logical, they tell a complete story, they rhyme without being contrived or awkward... But what's really impressive about the song is its structure. There's not a single guitar solo on it: all the guitar there is blends with the keyboards, bass, and drums to provide foundation. Instead there's a sax solo and a harmonica solo, and long after Huey's done singing the words the song keeps going with the two instruments together. How many other pop songs similarly insist people patiently listen to instrumentation (non-guitar instrumentation, no less) for multiple minutes until the song has run its course? Yet this one did, and it was a hit!

Blawg Review > This past week saw the annual celebration of Canada Day. In the latter part of the song Huey calls out city names, and in concert the last one is always the city its in. At some point someone asked Huey to record a version where he called out Canadian cities, and he blanched, not imagining someplace like Halifax could be a good rock and roll city. Then he went to Halifax, changed his mind, and somewhere out there is a Canadian version of "Heart of Rock and Roll." And speaking of Canada, copyright expert Michael Geist posted about Canada's role in ACTA negotiations at his blog.

And then there are the backing vocals. With the possible exception of Mario, everyone in the band can sing, and sing they do. Personally my first memory of becoming smitten with the band is when I heard "If This is It" and the doo-wops of the chorus. Huey, shmuey... those backing vocals are what really turned me onto the HLN. (And, of course, the video was fun too. How can one not like a band that gets buried in sand?)

Sports was also the album that spawned "I Want a New Drug." IP mavens know that this song also spawned a copyright lawsuit against Ray Parker Jr. for his "Ghostbusters" theme song.

Blawg Review > Not sure whether your use is fair? Brett Trout blogs a copyright fair use FAQ at BlawgIT. Meanwhile Bruce Boydon at the Marquette University Law School faculty blog discusses how copyright law is in transition, and Birgit Clark at IPKat has a post about the ruling in German courts holding Rapidshare liable for infringement.

But while HLN had turned down sharing "I Want a New Drug" with Hollywood when it asked to use it in its movie (which is what made the similarities of Ray Parker's subsequent song so suspicious) they didn't turn down the offer from "Back to the Future," contributing "Back in Time" and "Power of Love" to its soundtrack, the latter of which became an enormous international hit.

Returning to the theme that HLN is really at its core a live band, it is impossible for anyone to remain seated in any of their concerts once this song is reached in the set. If there is but one quality to HLN's music that makes me a sucker for it again and again it is the energy it contains, and "Power of Love" is one of the most energetic there is.

Blawg Review > HLN's rising star around this time earned them an invite to participate with USA for Africa and its "We are the World" recording. The whole band sang in the chorus (their autographs are also all on the poster, although for some reason Mario's is on there twice -- and spelled wrong in one of them...) and Huey remembers recording his solo line that came a few after Michael Jackson's. Meanwhile Anne Reed at Deliberations writes about not remembering Michael Jackson very much at all.

Perhaps it should be noted that around this time I had fully jumped on the HLN fan bandwagon. I was maybe 12. In some ways a fairly sophisticated 12 year old -- the band's intelligence and Pythonesque humor appealed to my cerebral nature -- but still 12. Being a fan of anyone at that age is quite painful. Waiting that long, agonizing summer of 1986 for the long-promised new album while isolated at summer camp was not fun. But I remember the sensation of joyful relief that finally came in the waning August days when I heard the first strums of guitar on "Stuck With You," the first single from their new album, Fore. The video joked about how hard it was to follow-up such a huge album as Sports, and, to be fair, the strain shows in some of the songs. But some, like Bruce Hornsby's "Jacob's Ladder" and "Hip to Be Square" still stand the test of time.

Blawg Review > "Hip to Be Square" is a much misunderstood song. Though sung from the first person, Huey was noting how so many fervent radicals from the 1960s had cleaned up and donned business suits once the 80s rolled around. "You might think I'm crazy, but I don't even care..." Then again, you might be Sarah Palin, per this post by Caley at Nuts and Boalts.

Blawg Review > Fore also includes a song, "Simple as That," written by members of Tower of Power, whose horns once again appeared on HLN's album and with them on tour. Like "Workin' for a Livin'" this song, too, tries to capture the financial frustration of the working man. Relatedly, Niki Black at Sui Generis blogs about trying to transfer assets in order to retain eligibility for Medicaid, and Frank Pasquale at Balkinization also blogs about more health insurance unpleasantness.

More importantly, Fore contained an original a capella song, "Naturally." For several years HLN had been performing a few a capella numbers within their concerts. Not only can the News do backing vocals, they also can hold a tune sans instruments. Sports had "Bad is Bad," which, as performed, was nearly a capella, but "Naturally" took on the feel of the kind of 1950s and 60s songs the band has liked covering both before and since.

Johnny (whose birthday was also this past week) typically arranges their a capella songs. Some other ones they've covered in concert include "60 Minute Man," "So in Love," "Chain Gang," "Little Bit of Soap," "Mama Said," and Curtis Mayfield's "It's Alright," which turned out to be a minor hit for them when a version was released from a Mayfield tribute album. They also are known for doing an a capella rendition of the "Star Spangled Banner" at all sorts of sporting events.

Blawg Review > Speaking of birthdays, the United States just had one this week too. Scott Greenfield ruminated at Simple Justice on the 233rd American anniversary.

Small, small world

HLN's next studio album, Small World is one of their best. If one wants to marginalize them for their previous commercialism, fine, but such criticism simply won't stand up to this most musically credible work. Running the gamut from ska influences on Alex Call's "Perfect World," to Cajun on "Old Antone's," to jazz, to all-out brassy rock, this album is full of surprises for the non-HLN fan and confirmation of their enormous talent for those who already were. If Tower of Power's presence doesn't impress the cynic, how about jazz great Stan Getz, whose sax solo appears on the title track?

Small World also is impressive lyrically as well as musically. "Better Be True" encapsulates what Huey's always said about songs, and in my own experience I've found to be true: whatever you sing, whether it resonates will depend entirely on whether it is true to you. "World to Me," meanwhile, is one of HLN's best love songs, a gentle poem of metaphors describing the enormity of one's love for another. And I'm a sucker for "Give Me the Keys," a horn-driven song of automotive double entendres.

On the flip side, the record also includes "Slammin'," a HLN song in which Huey doesn't even sing at all.

Unfortunately too many people found Small World too much of a surprise, and while "Perfect World" charted well, the album's sales paled to those of Sports and Fore. On the other hand, the record label Chrysalis may also be to blame. In a year where "world music" had been so heralded (see, e.g., Paul Simon's Graceland), there's no good reason HLN's effort should have been so overlooked.

Blawg Review > It really is a small world, at least legally: Dan Harris blogs about China's Internet censoring at the China Law Blog, Prashant Reddy has a post at Spicy IP contemplating whether India would rule like the UK just did in denying a right to blog anonymously, and Jeremy Phillips has a post at Fashionista-at-Law about attempts by Scotland to protect tartan cloth with IP.

So after more record label finagling they pointedly produced more guitar-driven rock for their next album Hard at Play. Its songs had been heavily road-tested (during the intervening tumult with the record companies the News had toured clubs under the name "The Sports Section") and many are quite listenable, but overall the album may be their least-typical work. Fewer horns, less R&B inflection, yet more guitar and rockabilly. Not that they couldn't pull it off, of course. Even on their earlier albums, like with Sports' "Honky Tonk Blues," that rockabilly influence has always been part of HLN's oeuvre. Still, "Time Ain't Money," might be better represented on Johnny's own solo CD.

On the other hand, HLN's cover of Don Covay's "He Don't Know" yields one of Huey's most emotive vocal performances. Huey and Chris weave together an undeniable tapestry of brokenhearted, soulful frustration. The song is not like HLN's more R&B work on other albums in terms of its overall arrangement, but it stands out on this otherwise heavily rocking album, which also includes the steamroller of a song, "Couple Days Off."

Blawg Review > A lyrical follow-up to "Workin' for a Livin'" "Couple Days Off" contains a sentiment that many lawyers can certainly understand. In this post at Law 21 Jordan Furlong rounds up much current thinking on measuring lawyer productivity. And for those people with a lot of days off, Stephen Seckler considers whether being laid off from a big firm job may actually be a good thing at Counsel to Counsel.

Retuning

With Hard at Play HLN's performances were getting more complicated, and it was getting harder and harder to replicate how the songs had appeared on their albums. As the consummate live band, though, this situation was anathema to their general musical ethic.

So on their next studio venture Four Chords and Several Years Ago all that studio crafting was pared down to just what was needed to capture the live performance on fixed media. HLN had always been chasing how to capture a "live" performance on record, and on this one they started to catch up with it.

Four Chords is different than all their other albums. It was something of a concept album, made up entirely of covers of semi-obscure R&B hits from the 1960s. As a HLN fan I have mixed feelings about covers: I don't like them to the extent that I value the band's own songwriting contributions to the popular music vernacular because I don't want them to be crowded out. Lyrically adept, musically original, I want to hear more of what they themselves have to say as they progress through their career. On the other hand, HLN's musical voice is probably most tied to their arrangements of songs, rather than the songs themselves. Every performance is extremely dense, with no fewer than six lines of instrumentation and usually at least two vocal lines as well, all weaving together. And this band can weave that magic for just about any song.

Thus their covers are unique: both true to the original, and yet completely their own. It's a tricky thing to balance, and yet they always do. True, on this album, sometimes their arrangements deconstructed their sound a bit. For instance, on a song like "You Left the Water Running," we hear a separate piano line and a prominent vocal part for Johnny, which are unusual for a HLN recording. But listening to their rendition of "Some Kind of Wonderful" I often forget that it wasn't originally their song.

HLN's sound was transitioning around this time anyway, seasoning and maturing, and it changed further with the departure of Mario after the Four Chords album. He was replaced by John Pierce, a highly regarded session musician who's now been on the HLN tour bus for over 15 years. With John the bass lines are in good hands, but obviously the musical chemistry would be different with different personalities now in the creative mix. The pull towards harder rock seems to have left with Mario, but the sound that remained is still an energy-infused, well-rounded, horn-driven, soulful sound that has continued to season and mature since.

With Four Chords HLN had also picked up a three-piece horn section -- Rob Sudduth (baritone sax), Ron Stallings (tenor sax), and Marvin McFadden (trumpet) -- and never put it back down. (They became known as the "News Brothers.") On Time Flies, HLN's first official greatest hits album and the next one released after Four Chords, the horns were there on the four new songs: "100 Years from Now," "When the Time Has Come," "'Till the Day After," and "So Little Kindness." The first isn't the most earth-shattering song lyrically, but like most original HLN songs it tells a story in a pat and balanced way. "When the Time Has Come" is the most obviously gospel-influenced song of theirs, and "Till the Day After" is, with "World to Me" and "I Knew the Bride (When She Used to Rock and Roll)" (which HLN backed Nick Lowe on), a perfect wedding song. Meanwhile, "So Little Kindness" is perhaps one of the best HLN songs period. (But more on that, infra.)

Plan B and beyond

In 2001 HLN released what is perhaps their most mature album to date. What with world events it was not a great time to release a record, so chances are, if you were not already a fan, you haven't heard it, but like Small World it's necessary to experience this album before casting judgment on this band.

With only two cover songs, Mike Duke's "Let Her Go and Start Over" and Nick Lowe's "When I Write the Book" (featuring a particularly dynamic drum performance), the rest is a showcase of band-written material. The duet with Wynonna, "I'm Not in Love Yet," is the only duet the band has done (Huey sang "Cruisin'" with Gwyneth Paltrow on the soundtrack to the movie "Duets," but that wasn't a News endeavor), but it helps Huey sound like less of a cad than he might if he sang the whole song himself. On the other hand, his tongue is firmly planted in cheek on "My Other Woman," a lament that his mistress is cheating on him.

Blawg Review > Should you have family law issues, Lucy Reed at Pink Tape has some information about what is safe to post on the Internet about it per UK law.

"We're Not Here for a Long Time," is a perfect show-closer, celebrating the party with Sean's pumping Hammond organ, and "Plan B" is a great blues vehicle for the band to stretch out on in concert. Then there's "Thank You #19" (a song whose title got changed as a result of a data entry error), a lyrical homage to Sam and Dave's "I Thank You" and other such songs of gratitude.

Blawg Review > Diane Levin blogs at the Mediation Channel about a decline in manners in the profession.

There's also something of a darkness on this album, both in terms of lyrics and musical tone. Even the aforementioned, relatively positive songs are painted in deeper musical colors than most of their previous songs, and not all the songs are even that positive in their orientation. Compare, for instance, Plan B's "I Never Think About You" with "If This Is It" from years earlier. Both songs tell a story of romantic dissatisfaction, but let's just say you could never shoot a video for "I Never Think About You" on a sunny day at a beach... Even the not-entirely-desolate "I Ain't Perfect" captures a curmudgeon quality that only life experience can teach ("I ain't perfect... but I'm perfect for you.").

And this is the record one should listen to "So Little Kindness" on (unless, of course, you prefer the live version on Live at 25, the live CD/DVD released in 2005 to celebrate 25 years together). Combining the poignancy and emotion of the vocal performance in "He Don't Know" with the more upbeat, energetic brassy thrust that so exemplifies what HLN's music has come to be, it's a romantic desperation you can't help but dance to.

Following the release of Plan B Chris retired from the band and was replaced by Stef Burns. Stef also plays with Vasco Rossi, the Bruce Springsteen of Italy, and has solo records of his own. His style differs from Chris's, primarily in terms of tone and use of harmonics, but in live shows he both makes the guitar parts his own while still being faithful to their original rendering.

Still more news

There's obviously a lot more to say about HLN, but there's a limit to what I can squeeze into a Blawg Review. I hope I have conveyed enough about them to help engender more of an appreciation than may have existed before. I know I appreciate having this band, this music, and these people in my life -- and hope to for a long time hence. As Huey always paraphrases his dad, "There's only two kinds of music: good and bad." And HLN is definitely good.

Meanwhile the News is still out there, touring and working up new material.

Blawg Review > Despite what Judge Posner thinks, it does not require a change in copyright law to keep the news going. See, e.g., Alex Wexelbat's post at Copyfight, R. David Donahue's post at the Chicago IP Litigation Blog, Dave Rein's post at Owners, Borrowers, and Thieves 2.0, and David Post's post at the Volokh Conspiracy.

Last year the band contributed the theme song to the movie "Pineapple Express," and recently new original music and new cover arrangements have appeared in concerts. Plus "old" songs have been reworked, finding new angles of attack with their evolved sound. (Compare, for instance, how they play "Jacob's Ladder," one of my favorite live songs in their current repertoire and which now includes a harmonica part, with how they did it originally.)

The band does about 80 shows a year, and if you live in the Northeast you've just missed them, but if you live in the West (or some parts of the Midwest) check the tour schedule. They really are worth the price of admission.

I go every chance I get. It's part of how I celebrate joie de vivre, enjoying their concerts and the adventures they spawn in their periphery through travel, friendships, etc. I plan to go to some of the concerts out West later this summer, including the ones in Saratoga I've been known to bicycle to, just to keep things interesting.

But this year the bike ride will have a greater purpose: News Brother Ron Stallings sadly passed away from Multiple Myeloma earlier this year. I'd had a chance to meet Ron a few times and found him an erudite, principled, as well as extremely talented man who will be greatly missed. So I will use the ride as an opportunity to raise money and awareness for the disease, and have thus set up a donation page to benefit the Multiple Myeloma Research Foundation here.

Still, this is a Blawg Review about celebration. Celebrating Huey's (and Johnny's!) birthday, America's birthday, Canada Day... and the 10 year anniversary of the Overlawyered blog.

Blawg Review > Eric Turkewitz has nice things to say about Overlawyered at his http://www.newyorkpersonalinjuryattorneyblog.com/">New York Personal Injury Attorney Blog. (And Kevin Underhill's helpfully adds to the overlawyered theme with his post at Lowering the Bar about assumption of risk when it comes to walking into Burning Man while he's actually burning.)

It's therefore fitting that Walter Olson will be hosting Blawg Review #220 on the Overlawyered blog next week. Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

The Goggle Boggle

2009-06-05T05:22:19Z

The Telegraph in England is reporting on a school in Wales that has banned kids from using goggles during their swimming lessons on the grounds that they are unsafe.

As a swimming teacher -- in fact, one who doesn't actually like her students to use goggles -- I feel competent, and confident, in saying this school is insane.

]]> It's risk assessment gone awry. Indeed, there are legitimate reasons to discourage, or even ban, goggles from swim classes, but those were not the reasons cited here. (Rather, headmistress Lynne Williams was quoted saying, "It has been recognized by the British Association of Advisors and Lecturers in Physical Education that goggles can pose a real risk to children, and this has been accepted by the governors.")

Personally I don't like students to use goggles for two main reasons:

(1) They cause a lot of time to be wasted, putting them on, taking them off, adjusting them, etc. We'd get a lot more actual swimming practice in if students could right away put their faces in the water without the song and dance; and

(2) I don't want them to become a crutch for students. For swimming to be the safety skill it needs to be, students need to know how to swim should they unexpectedly find themselves in water. As I tell the kids, "What if you fell out of a boat?" In case of emergency you should feel prepared to swim even if you don't have all usual the equipment available; that's what an emergency is. Barring a medical condition, there's no physical reason human beings can't open their eyes underwater, even in chlorinated water, and it's my job as a swimming teacher to make sure my students are comfortable doing so.

Obviously for older kids doing a lot of lap swimming I would have no problem with them using goggles. A half-hour of pool swimming is enough to irritate anyone's eyes. But for the little kids, they just aren't submerged enough in a normal lesson for it to be an issue.

In any case, my "ban" (which isn't so much a ban as general discouragement) is not because I feel goggles are unsafe. With the possible exception of goggles that are more like face masks and block the nose (thus interfering with breathing) I've never had a safety concern. And in over 20 years of teaching I've not seen any kid risk any sort of injury with their goggles. Not even from the "snapping them back in the face," which the school alleges is such a grave concern. No kid has ever come close to doing that to himself, and certainly none has done it to another. That, of course, would be horseplay, which is already banned around swimming pools and is one of the safety rules we discuss as part of the swim lesson curriculum.

No, this school may have reached the right result but for the most wrong of reasons: a complete inability to assess risk. According to the logic it espoused I fully expect the swimming pools themselves to be closed up next since, as I'm sure it's been noted by some health and safety authority in Britain, swimming pools are dangerous. People get hurt at them all the time. In fact, people are vastly more likely to get hurt by swimming pools generally (as well as any number of other things, all of which are surely due for a banning) than by goggles.

But then, to not ban goggles, when a teeny tiny hypothetical risk has been imagined, would require some sense of perspective. Some rational prudence to balance an infinitesimal risk with actual reward, a temperance which, sadly, is something we don't generally see enough of these days.

Perhaps it's already been banned.

Blawg Review #214

2009-06-01T14:52:47Z

On June 1, quite a few years ago, President Monroe asked Congress to declare war on England. "CharonQC" reminds us of this fact in this week's Blawg Review, along with many other facts surrounding this date in history.

In all seriousness, I find the history of US-UK relations to be a source of tremendous optimism about the world, showing how two enemies can eventually come to be close friends -- as governments, and as peoples. And people. This week's Blawg Review collects posts from lawyers on both shores (including my "Sticks and Stones" one).

Of course, given the state of UK politics -- with the predilection of its governing officials to underwrite, with the public fisc, their extensions of their homes to house their servants, the constructions of islands in their lakes to house their ducks, and the maintenance of their houses' moats -- it's probably just as well that the US went its separate way all those years ago...

Sticks and stones

2009-05-28T14:44:50Z

Brian Cuban has been in the news a lot lately for spearheading a campaign to get FaceBook to ban groups of Holocaust deniers. I fear I may have inadvertently picked a fight with him on Twitter however when I recently tweeted:

"Can't support (@bcuban's efforts to force FBook to purge Holocaust deniers. Suppressing those who were X in '30s enabled what happened in 40s."

Of course, as I also tweeted later, "Nothing like tweeting about the Holocaust 140 characters at a time..." While I know what I meant by my tweet, so compressed my meaning might not be clear to others. So I'll elaborate here.

]]> As I explained in a tweet back to him at one point, my visit to the museum at the Dachau concentration camp has been hugely influential to my thinking about the Holocaust. In the main building there is a series of exhibits documenting the history of the entire period starting from the first World War. As the exhibits slowly snake around the large room they show how, bit by bit, things changed in German society. These changes were so slow and incremental, with each one often seeming so reasonable in the context of what had come before, that it was hard to realize -- except once at the end of the museum, looking back across the room -- just how unreasonable they ultimately were.

Hitler was, of course, a lunatic, and the Nazis were autocrats who turned on their own populations. But their power hadn't been suddenly seized; rather they were able to fan the disaffection of an electorate, whose frustrations and intolerance provided the political support necessary to cement their grip on power and enable their subsequent evils. Like I tweeted originally, what happened in the 40s was precipitated by what happened in the 30s, so if we want to ensure that the later events never happen again then we cannot allow what came before to be repeated either.

The problem with Holocaust deniers, and where I do agree with Cuban, is that their denial advances the same kind of animus the Nazis did in the 30s. Thus the reflex to stop it is based on the reasonable fear that if these attitudes are allowed to retrench themselves as commonly held, socially acceptable beliefs, then all those evils that followed in the '40s might again recur now.

And yet it is because of the Holocaust itself that I am uncomfortable with what he proposes. The lesson I draw from history is that we cannot allow people to dictate what others can think and say.

Cuban made the point in his tweets that what he proposes is not state action. FaceBook is a private entity that is free to allow or prevent anyone it wants from using its services. As a basic legal matter I agree. FaceBook can kick off anyone it wants. And yet, even though it can, I don't think it should -- for two basic reasons.

One is that I fear hegemonic bullying. This is how "witches" got burned. Sure, in this instance I think Holocaust deniers are a scourge, and the views of people who accept the truth of this history should prevail. But I take no comfort in the fact that my views just so happen to conform with those of Cuban and his supporters. Because what if they didn't?

It seems like the calculus being done is too simple: because anti-Semitism was bad then, it's bad now, and any means of squelching it are acceptable. But what I see when I think about the days leading up to the Holocaust was a majority of people deciding that some other people were bad and wrong, and then using that belief as justification for scapegoating and suppressing them, including by taking away their freedom to speak out against the scapegoating and suppression. So I derive no comfort from agreeing with Cuban in thinking Holocaust deniers are wrong, because I don't see what guarantee there is that someone couldn't later decide that something else I believe in is bad and wrong and thus try to squelch my ability to think, associate, or speak freely about it.

In a blog post I wrote a few years ago about the difference in free speech values between the US and Europe I fretted about the places in the world where the incumbent power can choose what is or is not acceptable to be said. Freedom there is fragile because there's no guarantee that the arbiter deciding who gets these freedoms is right. For instance, while today's European powers may seek to ban racist attitudes, yesterday's European powers sought to stoke them. Should they one day flip flop again, without the ability to speak up against these attitudes, they could once again wreak their violence. Ultimately it's the ability to freely associate, speak, and think that provides the escape valves against such tyranny. When they are taken away, so are the critical means of self-defense against the kinds of evils the Holocaust bore.

Furthermore the fact that FaceBook is a private actor and not a governmental power seems like a distinction without a difference. In a democracy private actors easily become state actors, so if we foster a society where certain groups of private individuals think it’s proper to censor others, that's the kind of public society we'll have too. Indeed, the very reason Cuban sees the FaceBook shut down as being important -- due to its ubiquitous utility as a means of communicating -- is the very reason why I think his proposal is troublesome. If FaceBook is such an integral communications tool, depriving people of it is a significant action. The fact that the state may not be censoring does not mean that the impact of that censorship isn't just as profound.

Moreover the censorship seems like an ineffective and unnecessary tactic. I don't disagree that Holocaust denial is a serious problem. I do believe these attitudes need to be confronted and challenged. But I don't think they can be silenced just by being muted. Those attitudes will persist, and possibly in more virulent form if the people holding them feel persecuted. The saying is, rightly, "sticks and stones may break my bones, but words will never hurt me." Words can always be countered by more words, as long as people are always free to say them.

The end of the California constitution?

2009-05-28T05:06:37Z

One of the most interesting courses I took in law school was on comparative constitutional law, which I took during my semester in Germany. I think as Americans we tend to take for granted our federal constitution: that it exists, and how it exists. No matter what the school of thought behind how it should be interpreted, there's a reverence towards it that percolates through all of them. We therefore tend to expect that other modern democracies have their own constitutional equivalents -- an expectation that in reality is rarely met. Many democracies have no constitutions at all, or when they do, they don't necessarily map to our own.

Of course, we needn't look abroad to see these other examples of constitutions. Within our own borders each state bears its own constitution, which may greatly differ in form and substance from the one tying our nation together. Case in point: California.

]]> I am not a scholar of California constitutional law but it is immediately apparent as a California resident that California's bears features differing it from other constitutions. One of the most obvious is in its malleability. Every election there are several, if not several dozen, propositions on the ballot, many of which will amend the text of the state constitution. Some of these amendments read like statutory law -- yet statutes to be permanently inscribed into the Constitution -- while others stand to fundamentally change the operation of California's government.

On the surface it may seem like a good idea to give the people so much direct control over their governance, but as I've discussed before, it's not without some serious downsides too. Not only does it put Californians at the mercy of tyranny of the majority, due to the expense of the proposition process, it puts them at the mercy of the moneyed majority, and every election cycle the rights of minorities find themselves at risk of being trampled.

As a structural matter it also is problematic to have so much of the basic administration of the state subject to passing political whim. Take fiscal management: California's ability to collect and expend revenue is heavily dependent on the results of periodic (and expensive) elections. While acknowledging that there are also downsides to leaving the running of the state to an entrenched cabal, sacrificing the financial stability of the state by making the ability to manage it subject to itinerant political winds, rather than trusting it to a stable legislature, doesn't make sense, particularly given that the legislators themselves are still vulnerable to popular vote.

The above analysis would stand in any era. But today there are a few factors increasing the urgency to correct these constitutional defects. One is the announcement by the Supreme Court that Proposition 8, banning gay marriages from being recognized in the state, may stand, as it constitutes a valid "amendment" to the California constitution and is therefore not a "revision," a type of constitutional change which cannot be implemented by popular vote. This ruling (of debatable internal coherence) allows a majority to determine the rights of a minority, something that the U.S. Constitution, on the contrary, by its construction, is designed to prevent (and is less likely to be changed to allow).

Secondly California is also facing huge budgetary problems that threaten massive service cuts and possible federal bailouts. The question has been raised, if the federal government backs California's debt, what does it get in return as a form of security? What can it get? California is a state, not collateral, but it hardly makes sense for any guarantor to back the debt of a fiscal entity so obviously incapable of managing its finances responsibly.

So I got to wondering if, in exchange for the bailout, if the federal government could condition it on the restructuring of California's constitution. Obviously doing so is heavily dependent on the federal Constitution, as states are granted significant autonomy under it. But California was not an original state; its admittance to the Union was done at the Union's invitation. Surely that should leave the Union some leverage to demand the structural stability of its members, for how healthy can the Union be without it?

Not that the Union could necessarily dictate the specific form of the California constitution, nor does one size necessarily fit all anyway. But changing state constitutions is hardly unprecedented. Many states since their admittance to the Union have indeed changed their constitutions entirely (e.g., New Jersey), and often patterned the new one against the overall form of the federal one, albeit with their own policy angles and phrasing of much of the text. And indeed, there are some good things to the current California constitution that should be preserved. California is a unique state with unique needs and it must necessarily be able to govern itself accordingly.

Unfortunately, under its current constitutional form it cannot, and that must therefore change.

Blawg Review #213

2009-05-25T14:29:55Z

It's Blawg Review, and once again I've been organized enough to contribute to it. Kevin Thompson at Cyberlaw Central is hosting and has composed his Blawg Review in honor of Towel Day, a day of tribute to Douglas Adams, author of the Hitchhiker's Guide to the Galaxy. That guide is known for its helpful travel tips, including that one must always be sure to have their towel.

Speaking of travel, my post about going to INTA is linked to this Blawg Review, but without the picture my friend took of me there holding a Travelodge towel due to some concern on my part that given the angle, lighting, and wardrobe choices (or lack thereof) I ended up looking too much like an artichoke in said picture. So instead I sent in a different one, one where there's no danger of me being confused for being a vegetable of any kind. (At least none known in this part of the galaxy.)

Going INTA Seattle

2009-05-24T18:42:21Z

I suppose I have Jeremy Phillips, aka @ipkat, to blame. One of the legal folks I met in England earlier this year, it was he who first suggested I attend the annual INTA conference this year. INTA is an international trademark organization, and thus I might not have thought to attend given that I've typically focused more on copyright than trademark in my cyberlaw work. But cyberlaw is rife with trademark issues, and, like, copyright, trademark law deals with regulating expression -- which is what fascinates me about these areas of law generally. So perhaps it would be worth attending?

Of course, once I realized how many people from around the world I knew who would be there, there was no question.

]]> The social aspect was nothing to sneeze at. The average attendee's social calendar was jam-packed with breakfasts, lunches, dinners, and receptions, and happily mine was no exception. Highlights were the Meet the Bloggers reception, where we finally got to put faces to names previously known only from their Internet postings, and the closing reception at the Museum of Flight. (I will forever retain the memory of sharing a flight simulator with an Argentinean lawyer I'd just met, and the hijinks that ensued...) Meeting lawyers from all over the world was indeed a privilege, and extremely helpful for a career focused on law that necessarily transcends national boundaries.

I particularly enjoyed a presentation on the state of African trademark enforcement, which covered a great deal of information and geography in an efficient and illuminating way. While it mostly focused on counterfeit goods, a topic I've not heretofore thought much about because I'm more concerned with the verbal aspects of IP, Africa is an interesting crucible for all sorts of IP issues. In Africa those issues are not academic; as a continent full of developing nations it constantly raises the question of how strict a local IP regimen must be to stimulate investment, and how relaxed it also must be so as not to overburden an impoverished populace.

On the other hand, given that the convention was convened in Seattle, and given that so many attendees were American, it was sometimes hard to guard against American provincialism in the conference's presentations. I personally found the panel on trademark law as it related to blogs helpful given that such information directly pertains to my practice. Plus I think important the advice it conveyed to trademark practitioners generally: that when it comes to litigating trademark issues on the Internet it needs to be done with an eye toward traditional media law, which provides defenses that may not typically be available for off-line trademark infringements.

However, because the session focused entirely on US law it was therefore not particularly relevant to the many other attendees from around the world. Which is a pity. While this area of law is complicated enough in the US and could justify hours and hours of sessions on it, each international jurisdiction has its own way of grappling with it. Since the reach of the Internet is global it is helpful for lawyers to have some sense of how these issues will be dealt with in places other than their home turf. Local counsel may still need to be engaged should trouble arise abroad, but even US lawyers should at least know how to spot it.