Guns, Coffee, and Bodily Autonomy

Speaking of fundamental rights and Starbucks Locked, Loaded, and Ready to Caffeinate reports on the campaign by gun-rights advocates “to carry unconcealed weapons in the 38 or more states that have so-called open-carry laws allowing guns to be carried in public view with little or no restrictions.”  Open-carry advocates are “showing up at so-called meet-ups, in which gun owners appear at Starbucks, pizza parlors and other businesses openly bearing their weapons.”  Unlike Peet’s and California Pizza Kitchen, Starbucks has not adopted a uniform no-guns policy.  “The political, policy and legal debates around these issues belong in the legislatures and courts, not in our stores” said Starbucks.  Some gun-rights supporters criticize the open-carry movement.  The founder of the Second Amendment Foundation said “I’m all for open-carry laws, but I don’t think flaunting it is very productive for our cause. It just scares people.”  The National Rifle Association does not embrace open-carriers.  Its spokesman said the N.R.A. “supports the right of law abiding people to exercise their self-defense rights in accordance with state local and federal law,” and left it at that.

Expect this issue to create strange bedfellows.  Some liberal constitutional scholars interpret the Second Amendment to protect the individual right to gun ownership, in line with individual rights protected by the rest of the Bill of Rights.  A few weeks ago the U.S. Supreme Court heard arguments in McDonald v. City of Chicago, a challenge to Chicago’s gun ownership ordinances.   McDonald involves the issue of the whether the 14th Amendment applies the Second Amendment to the states, an issue with repercussions on individual rights far beyond gun ownership.  The linked Newsweek article puts it this way:

At the heart of the left-leaning dissenters’ argument is a plea for consistency. For decades, liberals have insisted that the Constitution assumes—even if it does not explicitly spell out—a right to bodily autonomy. This right, long disputed by conservatives, is a basis for arguments in favor of abortion rights and gay rights. Liberals who support gun rights find a similar implied right to own weapons: after all, they say, what is the right to bear arms but the ability to protect your body from criminals as well as the government? . . .  The [Constitutional Accountability Center’]s main concern in weighing in on the McDonald case isn’t to secure gun rights but to set a precedent that will expand individuals’ protection under the Bill of Rights to the state level. That would, they hope, bolster liberal constitutional arguments in favor of stronger due-process and abortion-rights protections.

Not all liberals adopt this position, arguing instead that the Second Amendment protects collective security through state militias.  Needless to say, conservative scholars arguing against restrictions on gun ownership are not eager for the McDonald decision to become a Trojan horse bearing liberal social doctrines.  The Court will decide McDonald before its term ends in June.

Putting the Mental in Fundamental

A survey “of more than 27,000 adults across 26 countries” found that half the respondents “strongly agreed” that Internet access is a fundamental right, and another almost-30% “somewhat agreed.”  The conclusion does not surprise me, but it comes with breathtaking rapidity.  For most of humankind twenty years ago the Internet was at most a dim blip on the horizon.  Now most adults consider Internet access on the same plane as clean water, sewage disposal, free speech, and proximity to Starbucks.  Remarkable.  I doubt anything else has acquired fundamental-right status in so short a time.

Maybe not Starbucks.  How about premium ice cream?  No classes on Friday?  Clips from The Daily Show?

Massachusetts on Verge of Anti-Bullying Law

On the Friday the Massachusetts house passed anti-bullying legislation by unanimous vote.   The state senate passed similar legislation the week before.  The governor has said he will sign the bill after the senate and house versions are reconciled.  Proponents of legislative remedies to bullying praise the house’s version “because it requires school officials–bus drivers, cafeteria workers, teachers, and others–to report bullying to a school’s principal.”  The house version, H4567, defines bullying in part as ““the repeated use by a perpetrator of a written, verbal, or electronic expression, or physical act or gesture . . . directed at a victim that causes physical or emotional harm or damage to the victim’s property; places the victim in reasonable fear or harm to himself or of damage to his property; [or] creates a hostile environment at school.’’  The Globe article linked above reports that principals [and perhaps others?} would be required to report to police any bullying that constitutes a criminal act.  What line must be crossed for bullying to become criminal?  The article does not say and I’ve not yet located the text of the bill.  The house rejected an amendment that would have required school employees who do not report bullying be fined.  “Some lawmakers said the lack of such of fine made the proposed law toothless; while others said that any official who does not report an incident would be subject to being fired.”

The article does not say whether anyone in the Massachusetts house or senate considered the First Amendment implications of their bills.  “Written, verbal, or electronic expression . . . that causes . . . emotional harm” covers a lot of constitutionally-protected speech.  I’m not optimistic that this bill will reduce bullying or that it will survive the inevitable First Amendment challenge.

Holes in the Myths

I’ve been listening to the audiobook edition of journalist Dave Cullen’s Columbine.  Cullen covered the 1999 high-school shootings and spent a decade researching and writing the book, an in-depth look at the two killers, the shootings, and the aftermath.  “Columbine” has entered the lexicon as shorthand for both the shootings themselves and for the attacks as a symbol of violence perpetrated by alienated youthful outsiders.  The image of Eric Harris and Dylan Klebold as members of a band of high-school outcasts called the “trenchcoat mafia,” bullied and scorned by jocks, preppies, and other members of the high school until they snapped is firmly fixed in the popular consciousness.

It’s also wrong, totally wrong, as is much of what we think we know about the events captured by the concept Columbine.  Cullen relates the documented facts, punctures the myths, and tells a story that is more chilling in many ways than what we thought we knew.   Among the revelations:

  • Harris and Klebold were not loners, they were not bullied, and the attacks were not the consequence of a sudden I-can’t-take-it-any-more snap.  Both attended the prom or after-prom party the Saturday night before the killings.  They planned the killing for over a year and spent months preparing their arsenal.
  • There was no motive for the killings.  Harris was an intelligent, charming, manipulative psychopath with a wildly grandiose sense of self-importance.  In his extensive journals and videos he saw himself with as god-like when compared to the rest of the “morons” who made up the human race.  Klebold was shy, depressive, and suicidal, with wavering commitment to their plan of mass murder.
  • The killings fell far short of what they intended.  They planted gasoline/propane bombs in the school’s cafeteria, timed to explode precisely at the moment when it was most crowded.  They expected their bombs to kill hundreds, and they would stay outside and kill more as students and faculty fled the burning school.  They changed their plan after the bombs’ fuses malfunctioned.
  • They did not target jocks, or people with white hats, or any other group.  They killed indiscriminately.  Carnage was their only goal.
  • Harris and Klebold spent the year before the killings in a court diversion program after being arrested for breaking into a van and stealing property within.  They met weekly with counselors, who monitored their progress in meeting the program’s requirements.  Harris charmed those responsible and left the diversion program with enthusiastic assurances for his future success.  Klebold’s depression and shyness made him a poor liar and he struggled with the program’s requirements.
  • Harris’s dark side was not a secret.  He maintained a website filled with vicious rants targeting violence against specific classmates.  One former friend feared that Harris would kill him, and the boy’s family reported Harris’s threats, experiments with explosives, and vandalism to police more than a dozen times.   In response, more than a year before the murders, a police investigator put together an application for a warrant to search Harris’s home for evidence of bomb-making materials and other evidence of his violent plans.  The application was put aside and never filed and the information was never shared with the diversion program.  Within hours of the start of the shootings police identified Harris as one of the killers and found the old warrant application, along with pages of supporting material printed from his website.  Police covered up the warrant’s existence since it showed they had Harris on their radar long before the killings, and continued to cover it up for years after the attacks.
  • Evangelicals ran with the story that one of the killers asked student Cassie Bernall if she believed in God.  Bernall supposedly answered “yes” and was then killed.  Bernall became a martyr for those who saw the shootings literally as the work of Satan.  A student did affirm her faith in God in response to a killer’s question, but it was not Cassie Bernall and the speaker was not killed for her answer.

How did the myths arise?  Some were born out of the inevitable confusion of eyewitness testimony.  Harris and Klebold wore long, black dusters at the start of the killings.  Some witnesses equated the coats with a goth group called the trenchcoat mafia that had existed in the school a year before.  The killers were not associated with that group and did sport goth fashions.  A student in the library, where most of the killings occurred, heard a female student affirm her faith, but misremembered the direction from which the words had come.   The media hordes picked up these stories and ran them without verification.  Students heard the stories from the media and repeated them to reporters.  The media created other myths out of whole cloth, believing that high-school shooters were, by definition, sullen loners picked on by the popular kids until they broke.  I come away from this book with a renewed appreciation for the media’s lack of ability to get an unfolding story right.

Cruel Weather

In the 60s yesterday . . . in the 70s today, March 18, a few days before winter’s official end . . . this weather is agonizingly pleasurable.  Classes today had an end-of-semester feel.  Rampant absenteeism. languid students, distracted teacher, blue skies and warm sunshine just a few steps away.  It was torture.  Bring back March so we can make it through the next six weeks.

Rescuecom Relents

A few years back Rescuecom sued Google federal district court (N.D.N.Y.) for Lanham Act claims of trademark infringement, trademark dilution, and false designation of origin pursuant to 16 U.S.C. §§ 1114 & 1125.  Rescuecom’s claim rested on Google’s sale and use in its AdWords program of the Rescuecom mark, Rescuecom arguing that allowing its competitors to trigger views of their own ads in response to searches for Rescuecom violated its rights as a mark owner.  The trial court dismissed Rescuecom’s complaint on Google’s 12(b)(6) motion, ruling that Google did not use Rescuecom’s mark in commerce. Rescuecom appealed and in 2009 the Second Circuit ruled that its complaint did state a claim on which relief could be granted, reversed the trial court’s dismissal, and remanded for further proceedings.

Nothing happened in the case until last week when Rescuecom declared victory and dropped its suit.  Why it believed the post-Second Circuit status quo represented a victory is unclear.   (Sample headline, from Eric Sinrod’s columnRescuecom Delcares “Victory” Against Google:  Oh Really?)  Rescuecom explains that Google has changed its AdWord practices regarding use of trademarks and no longer suggests Rescuecom’s mark through its Keyword Suggestion Tool, and that it obtained what it wanted from the suit.  Commentators have responded skeptically to Rescuecom’s explanation.  Rescuecom is itself a defendant in a lawsuit filed by Best Buy, claiming that Rescuecom’s use of Best Buy’s “geek squad” mark in its keyword advertising violates Best Buy’s rights in the mark.  One commentator called Rescuecom’s position in the Best Buy suit as “intrinsically inconsistent” with its claims against Google.  Et tu, Rescuecom?


Today’s New York Times reports on Ushahidi--Swahili for testimony–an open-source platform for user-generated content.  Or, to put it less generically, Ushahidi is social networking for humanitarian relief, a disaster-witness wiki.

Ushahidi was developed in Kenya to respond to the violence that followed the 2007 election.  Kenyan lawyer and blogger Ory Okolloh

posted online the idea of an Internet mapping tool to allow people anonymously to report violence and other misdeeds. Some technology whizzes saw her post and built the Ushahidi Web platform over a long weekend.  The site collected user-generated reports of riots, stranded refugees, rapes and deaths. It collected more testimony — which is what ushahidi means in Swahili — with greater rapidity than any journalist or election monitor could. Ushahidi had found a quintessentially 21st-century way of bearing witness.

Recently Ushahidi was used to respond to the Haitian and Chilean earthquakes and in the D.C. area to “Snowmageddon.” People on the ground reported  by SMS message about persons buried in rubble or snow-blocked intersections to a central location that mapped the reports.  A single report does not have much weight–people lie, exaggerate, misreport addressesses–but veracity increases as the site receives more reports from separate cell phones, some accompanied by photos.  The response depends on the situation.  Following the earthquake in Haiti Ushahidi coordinators at Tufts University relayed incident information to rescue personnel in Haiti.  Snowmageddon coordinators sent snowplows, or volunteers monitored the site to find nearby locations that needed help.

The Times says Ushahidi represents

a new paradigm in humanitarian work. The old paradigm was one-to-many: foreign journalists and aid workers jet in, report on calamity and dispense aid with whatever data they can get. The new paradigm is many-to-many-to-many: the victims are re-imagined as agents who supply on-the-ground data; a self-organizing mob of global volunteers translates the text messages and helps to orchestrate relief; journalists and aid workers use this information to target the most pressing problems.

But Ushahidi also represents a new frontier of innovation . . . Because Ushahidi originated in crisis, no one tried to patent and monopolize it. Because Kenya is poor, with computers out of reach for many, Ushahidi made its system accessible by cellphones. Because Ushahidi had no venture capitalists backing it, it had to use open-source software and was thus free to let others remix its tool for their own projects.

This is the best Internet application I’ve encountered in a long time.  Read the whole article.

Colorable Claims

The court handling the Lehman Brothers bankruptcy directed the court-appointed examiner to “file a statement of . . . any fact ascertained pertaining to fraud, dishonesty, incompetence, misconduct, mismanagement, or irregularity in the management of the affairs of the debtor, or to a cause of action available to the estate.”  Yesterday the examiner, Jenner & Block’s Anton Valukas, issued his 2,200-page report.  Responding to the question “Why did Lehman fail?” the report’s executive summary concludes

Lehman failed because it was unable to retain the confidence of its lenders and counterparties and because it did not have sufficient liquidity to meet its current obligations. Lehman was unable to maintain confidence because a series of business decisions had left it with heavy concentrations of illiquid assets with deteriorating values such as residential and commercial real estate . . . The business decisions that brought Lehman to its crisis of confidence may have been in error but were largely within the business judgment rule. But the decision not to disclose the effects of those judgments does give rise to colorable claims against the senior officers who oversaw and certified misleading financial statements – Lehman’s CEO Richard S. Fuld, Jr., and its CFOs Christopher O’Meara, Erin M. Callan and I an T. Lowitt. There are colorable claims against Lehman’s external auditor Ernst & Young for, among other things, its failure to question and challenge improper or inadequate disclosures in those financial statements.  (emphasis added)

Fuld responded through his lawyer:  “Mr. Fuld did not know what those transactions were-he didn’t structure or negotiate them, nor was he aware of their accounting treatment.”  Between 2000 and 2008 Lehman paid Fuld over $484 million in compensation–salary, bonuses, and stock options.  Some explain outlandish compensation packages like Fuld’s as the market price for the rare combination of talents required to run a major corporate enterprise.  Slash executive pay, they say, and the quality of corporate management will plummet.

Here’s my question: how could a manager worth over $484 million for nine year’s compensation not know the terms and accounting treatment of these transactions?  The examiner’s report is not talking about one-off deals entered into by middle management.  It focuses on what Lehman internally called “Repo 105” transactions that were accounted for as sales, not financings, thus removing the assets from Lehman’s balance sheet and lowering its net leverage ratio.  According to the Examiner’s report

Lehman used Repo 105 for no articulated business purpose except ‘to reduce balance sheet at the quarter?end.’ Rather than sell assets at a loss, ‘[a] Repo 105 increase would help avoid this without negatively impacting our leverage ratios.’ Lehman’s Global Financial Controller confirmed that “the only purpose or motive for [Repo 105] transactions was reduction in the balance sheet” and that ‘there was no substance to the transactions.’

Lehman accounting personnel also called Repo 105 transactions a “lazy way of managing the balance sheet as opposed to legitimately meeting balance sheet targets at quarter end.”  Lehman did not publicly disclose these transactions.

In 2007-08, Lehman knew that net leverage numbers were critical to the rating agencies and to counterparty confidence. Its ability to deleverage by selling assets was severely limited by the illiquidity and depressed prices of the assets it had accumulated. Against this backdrop, Lehman turned to Repo 105 transactions to temporarily remove $50 billion of assets from its balance sheet at first and second quarter ends in 2008 so that it could report significantly lower net leverage numbers than reality. Lehman did so despite its understanding that none of its peers used similar accounting at that time to arrive at their leverage numbers, to which Lehman would be compared;

Lehman defined materiality, for purposes of reopening a closed balance sheet, as “any item individually, or in the aggregate, that moves net leverage by 0.1 or more (typically $1.8 billion).” Lehman’s use of Repo 105 moved net leverage not by tenths but by whole points . . . Lehman’s failure to disclose the use of an accounting device to significantly and temporarily lower leverage, at the same time that it affirmatively represented those “low” leverage numbers to investors as positive news, created a misleading portrayal of Lehman’s true financial health.

I’ve read only the report’s executive summary and I’m outraged by the arrogance and greed it reveals.

BHA=Butthead Actress?

Displaying breathtaking self-importance Lindsay Lohan has sued eTrade for commercial misappropriation of her name and personality in a television ad.  In the ad the e-Trade talking baby (I preferred the earlier baby’s personality–this one acts like one of Vince Vaughn’s and Jon Favreau’s pals in “Swingers”) explains that he didn’t call his girlfriend the night before because he was busy trading his portfolio.  The off-screen girlfriend asks whether “that milkaholic, Lindsay” was over.  The baby plays dumb but then a baby girl enters the scene to ask “milk-a-what?”  Lohan claims the use of a ditzy, dense baby named Lindsay violates her right “to the exclusive control of the commercial use of her likeness, name, characterization and personality.”  Her suit seeks damages of $100 million.

This reminds me of astronomer Carl Sagan’s suit against Apple Computer in the early 1990’s.  Apple code-named a development project “Carl Sagan.”  That might have been flattering by itself but Apple code-named contemporaneous projects “Piltdown Man” and cold fusion,” two well-known science hoaxes.  These internal code-names became public knowledge.  Sagan objected to Apple’s suggesting by association that he was a fraud and demanded that Apple rename the project.  Apple complied,  renaming the project BHA–for “butthead astronomer.”  Not amused, Sagan sued Apple for misappropriation, libel, and other claims.  In rejecting the libel claim the court reasoned

[a]ny reader exposed to such a publication would likely have knowledge of the context in which the language was used. A reader aware of the context would understand that Defendant was clearly attempting to retaliate in a humorous and satirical way against Plaintiff’s reaction to Defendant’s use of his name. A reasonable reader would further conclude that the use of the term “astronomer” did not imply that Plaintiff was a less than able astronomer, but that the word was a merely a means of identifying Plaintiff. Finally, a reasonable reader would conclude that the phrase “Butt-Head Astronomer” did not imply that Plaintiff was legally wrong in asking Defendant to cease using his name.

Sagan v. Apple Computer, Inc., 874 F. Supp. 1072 (C.D. Cal. 1994).  Sagan and Apple settled the suit’s other claims in 1995 on undisclosed terms.

Lohan claims that many people say she “was the first person they thought of when they saw the commercial.”  Lohan claims to have one-name recognition comparable to Madonna and Oprah.  Not to me, but my demographics may rule me out. Unlike Madonna and Oprah, Lindsay has been in common usage for many years.  Neither Madonna nor Oprah has been in the top 1000 birth names in the past 35 years.  According to the SSA website in 1986, when Lohan was born, Lindsay was the 46th most popular female birth name in the U.S..  Its highest rank in the past 35 years was 1984 when it ranked 36th.  Lindsey ranked 35th in 1983 and 1984 and 39th in 1986.  They would be higher if the rankings were done on pronunciation rather than spelling.  Lindsay’s popularity has declined dramatically over the past decade, almost precisely in line with Lohan’s career arc.  Does correlation = causation?  As a lawsuit Lohan v. E-Trade has no legs.  As a strategy for promoting the Lohan brand it appears to be attracting more ridicule than sympathy.