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No Bell

Wednesday, July 1, 2009

The recession has whacked salaries of associates of big law firms, but has not reduced the disparity in starting associate salaries according to Study Shows Sharp Disparities in Law Associate Compensation.  The study is based on 2008 starting salaries.  Since 2000 starting associate salaries abandoned a bell-curve distribution for a distribution with two peaks.  The first is part of a small bell curve between $40,00 and $65,000 and accounts for 42% of starting salaries.  The line trends down steadily to $65,000 and then soars to a narrow peak between $160,000 and $170,000, where 23% of starting salaries lie.  A rollback in starting salaries and re-engineering of associate compensation models should move that peak to the left in coming years–it may “inch back toward the $145,000 range” flatten the curve.  In other words the low end will remain low and the high end will move closer to it.

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Bad Idea

Tuesday, June 30, 2009

It is beyond argument that the Internet is the most transformative development in information technology in, let’s say, the last 100 years.  You could make the case to change “the last 100 years” to “in history,” but let’s not quibble.  The Internet gives everyone in the world with a network connection access to an unprecedented quantity of information–and some of it is even worthwhile–and the ability to communicate to a global audience.   The Internet achieved this status because of its design, because of the way in which it transmits information, and because of protocols like HTTP that enable information to be linked in a seamless web.  Why, then, do smart people talk about screwing it up, about changing its fundamental nature?  Federal judge Richard Posner proposed recently that the declining fortunes of the newspaper industry could be addressed in this manner:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion. (Emphasis added)

This is a horrible idea.  I care a great deal about newspapers–my parents met while working at The Hartford Courant and the Courant’s comic section was my first reading primer–but shackling the ability to access and link to copyrighted material would not save newspapers and would transform the Internet.  I will subscribe to print until its demise, but I am not representative of the younger generation(s) (there are many behind me, unfortunately) of Internet users.  If their chosen online news sources stops carrying links to articles in The New York Times they will not start paying for a print edition; they will obtain their news from other sources.  “Aha!” you say.  “There will not be other sources if these users don’t pay to finance news-gathering operations!”  Wrong.  Blogging, Twitter (as much as I bemoan it), RSS feeds, Citizen Media, and other things I’ve not thought to name or that are as-yet uninvented are transforming the nature of news-gathering.  Don’t try to reverse technological development.  Acknowledge what is being left behind and figure out how to embrace what’s in front of you..

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Right versus Wrong?

Tuesday, June 30, 2009

I’m preparing to teach Current Topics in Law and Ethics in the graduate business program this summer, which I have not taught before.  I have two syllabi from colleagues but  I’m trying to reinvent the wheel by reducing the law and increasing the ethics content.   One thing about ethics discussions and ethics advice:  they can provoke passionate disagreement.  I often find The Ethicist column in the Sunday NYTimes magazine irksome, and its advice provokes rants in a good friend.  Today Rushworth M. Kidder’s How Good People Make Tough Choices* drove me to write this post as a reality check.  In Chapter 3 “Right Versus Wrong: Why Ethics Matters,” Kidder offers three cases as typical of the approach to ethics that focuses on right versus wrong (as opposed to the more problematic right-versus-right ethical dilemmas).  The premise of each is that they distinguish between the legal and ethical, in that none involve breaking a law.  One involves a part-time receptionist at a property-management company who is instructed to lie to elderly tenants who complain of inadequate heat that the boiler is broken, when the owner has turned down the heat to save money.  The receptionist does not want to lie to the tenants but fears losing her job if she tells tenants the truth.  Another involves a person interviewing for a job that requires conducting survey interviews in a crime-ridden part of town.  Two previous employees left the position after one day and the third was mugged and physically injured.  The question is whether the supervisor conducting the interview should inform the candiate of the previous employees’ experiences.    The third involves a manufacturer and mail-order seller of automobile master keys, who sells the keys to anyone who wishes to buy them “even though it was obvious that some of the purchaser might be automobile thieves.”  Kidder asks whether the seller is responsible for the consequences of selling master keys.  The answer in each of these cases, he writes is  “one side is wrong.”  Kidder writes “the world presented in these cases is not one of great moral complexity.  It fairly quickly reduces itself to a black-and-white, right-versus-wrong world.”

Whoa.  I agree that it is wrong not to disclose to a prospective employee that prior employees either couldn’t handle the job after one day, or were injured while performing it.  Failing to disclose such danger could also expose the employer to negligence liability, for failing to notify the employee about the job’s potential for harm.  I agree that it is wrong to lie to tenants about the cause of inadequate heat.  Failure to provide adequate heat may well violate the state’s health code for rental residential dwellings, and could endanger the physical well-being of tenants, especially elderly tenants.  I also sympathize with a receptionist torn between telling the truth and losing her job.

I flatly disagree with his characterization of the third case.   It poses the rhetorical question, “is it any worse  . . . to sell keys by mail . . . than for mail-order houses to sell guns that might be used for murder?”  That’s a manipulative way to ask a valid question.  Here’s how I ask the question:  “is it ethically wrong to sell any item that can be used for both legal and illegal purposes?”  If it were ethically wrong, what could one sell?  Is it ethically wrong to sell DVD burners that can be used to unlawfully copy copyright-protected music and movies?  Is it ethically wrong to sell video equipment that can be used to create child pornography?  Is it ethically wrong to sell duct tape that can be used to bind the wrists of kidnap victims?  Is it ethically wrong to sell Slim Jims, tools that can be used to open locked car doors?  Rushworth Kidder must never have locked his keys in the car.

Of these three cases Kidder says ‘[t]hey may even provide useful examples to present to individuals whose ethical baromter you would like to read:  [their responses]  . . . will shed light on their moral stance.”    You now know that in his world my moral barometer is falling.

*Which, perversely, I think of as “When Tough People Make Good Choices.”  I’d read that.

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My Favorite Things

Tuesday, June 30, 2009

I am a sucker for many things–beautiful women, ice cream, dogs, lake swimming, chocolate, rhythm, and baked goods with cinnamon come to mind without breaking a sweat.  “Baked goods with cinnamon” is a proxy for “baked goods with cinnamon and sugar,” because cinnamon by itself would not make me walk across a room.  Mix cinnamon with sugar in yeast dough and I’ll follow you anywhere.  This morning I decided to do something with a carton of buttermilk with an April 17 sell-by date that was still good.  A recipe for easy cinnamon buns was the answer.  An hour later they were baked, glazed, cooled, and ready to eat.

photo

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Recently, in Internet law . . .

Wednesday, June 24, 2009

Here’s the First Commandment for the Study of Internet Law:  What the Internet was is not what the Internet shall always be.  A few more stories echoing the last post’s theme:

  • France’s Constitutional Council rejected the legislature’s attempt to thwart digital piracy by terminating Internet access for alleged illegal downloaders.  Under the legislative proposal “a newly created agency, acting on the recommendations of copyright owners, would have been able to order Internet service providers to shut down the accounts of copyright cheats who ignored two warnings to stop.”  The Council held the proposal violated French constitutional principles including the presumption of innocence and freedom of speech.
  • The on-again, off-again Italian trial of four Google executives on criminal defamation and privacy charges arising from Google’s failure to remove a YouTube video of the bullying of an autistic boy in Turin started again this week–and then stopped after one day, when a translator failed to appear.  The prosecution claims “that Google should have acted to prevent the broadcast of the footage and that by failing to do so it breached the disabled boy’s privacy.”  Google, in turn, claims it has no legal liability to monitor content posted by third-parties and that “seeking to hold neutral platforms liable for content posted on them is a direct attack on a free, open internet.”  The charges, which carry potential prison terms of three years, underscore the profound difference between U.S. and European Union privacy law and the importance of ISP liability immunity provided by Section 230 of the Communications Decency Act.
  • NetChoice published its Internet Advocates Watchlist for Ugly Laws–”iAwful” to publicize “ the top ten worst proposed laws affecting ecommerce and open communications. . . . [The list's] primary focus is on laws that will affect business, particularly by increasing taxes or dictating standards and practices that the group thinks are unworkable.”
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Green Dam

Wednesday, June 24, 2009

Despite domestic and international opposition (e.g. “China Faces Criticism Over New Software Censor“) China is proceeding with its requirement that the Green Dam Youth Escort content-filtering software be installed on, or included on a compact disc accompanying the purchase of, all new computers sold in the country as of July 1.  The name “Green Dam Youth Escort” conjures an image of a responsible elder guiding a youngster through a landscape dotted with levees holding back reservoirs of Internet yuckiness–or perhaps an image of an escort service that caters to minors.  China’s ostensible purpose is to stem exposure to violent and pornographic content.  Some critics fear the software is a vehicle for greater government monitoring of and control over dissident or other politically-unacceptable speech.  Manufacturers are concerned the new software won’t play nice with operating systems and other software.  The Beijing News reported the software is both over- and under-inclusive, blocking content it should permit and permitting content it should block.  Computer scientists have said the software contains flaws that third parties could exploit.  China, nevertheless, continues to say that July 1 compliance deadline is firm.

I’m following this story because it is interesting on its merits and because of what it says about the state of Internet law.  I’m pointing my Internet law course in a new direction for the coming academic year, reducing its emphasis on theories of regulation.  Current events, like this story, reflect powerful forces contending over the future of the Internet.  I want students to understand these forces and what is at stake.  “Code is law” continues to be an important message, but the playing field of 2009 is far more complex than that of a decade ago.

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