Wednesday, November 10, 2004

Globalization and Innovation

Globalization and Innovation

Innovation is the lifeline of progress in the modern world and can be viewed from many perspectives.

Take a look at the IdeaFlow blog and its posting and comments thereto on "What Drives Innovation?"

There is also a legal side to innovation: patent law and its enforcement. The Federal Trade Commission (FTC) has an October 2003 report "To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy" which begins:

"Innovation benefits consumers through the development of new and improved goods, services, and processes. An economy’s capacity for invention and innovation helps drive its economic growth and the degree to which standards of living

increase.1 Technological breakthroughs such as automobiles, airplanes, the personal computer, the Internet, television, telephones, and modern pharmaceuticals illustrate the power of innovation to increase prosperity and improve the quality of our lives."

The FTC article is a "must read" for all persons involved in the intellectual property field.

Innovation is so important for business that there are government sites devoted to the subject. For example, the government innovation site in the United Kingdom writes:

"The challenge for companies is to bring to the market a stream of new and improved, added-value, products and services that enable the business to achieve higher margins and thus profits to re-invest in the business.

Innovation – the successful exploitation of new ideas – incorporating new technologies, design and best practice is the key business process that enables UK businesses to compete effectively in the global environment."

The Federal Reserve Board has published online the remarks of its Chairman, Alan Greenspan on May 6, 2004 on the topic of Globalization and Innovation.

Greenspan's remarks included the following observations about the juncture of globalization and innovation:

"Globalization has altered the economic frameworks of both advanced and developing nations in ways that are difficult to fully comprehend. Nonetheless, the largely unregulated global markets, with some notable exceptions, appear to move effortlessly from one state of equilibrium to another. Adam Smith's "invisible hand" remains at work on a global scale....

In tandem with increasing globalization, monetary policy, to most observers, has become increasingly effective in achieving the objective of price stability. But because we have not experienced a sufficient number of economic turning points to judge the causal linkages among increased globalization, improved monetary policy, significant disinflation, and greater economic stability, the structure of the transitional paradigm is necessarily sketchy.

Nonetheless, a paradigm encompassing globalization and innovation, far more than in earlier decades, appears to explain the events of the past ten years better than other conceptual constructs."

Lastly, military innovation has been one of the driving forces for the development of human society ever since mankind has populated the planet. An interesting study is found at:

Philip T. Hoffman, California Institute of Technology, "Why is that Europeans Ended Up Conquering the Rest of the Globe? Prices, the Military Revolution, and Western Europe’s Comparative Advantage in Violence", August 8, 2004

Indeed, military innovation is quite a current topic and has been well analyzed by Air Vice-Marshal R.A. Mason in Innovation and the Military Mind (Adapted for AU-24 from Air University Review, January-February 1986).

Copyrights, Fair Use And Derivative Works

Copyrights, Fair Use And Derivative Works

Ivan Hoffman in his online article Fair Use And Derivative Works discusses the copyright issues of fair use and derivative works as raised in the 8th Circuit case, Mulcahy v. Cheetah Learning.

Lakoff - Symbolism and Metaphorical Mapping

Lakoff - Symbolism and Metaphorical Mapping

"Our ordinary conceptual system, in terms of which we both think and act, is fundamentally metaphorical in nature." - George Lakoff

Do you want to better understand yourself, the world and the events of our times? Then you should make yourself familiar with the work of George Lakoff. See also Wikipedia and the embodied mind.

Lakoff's ideas also relate directly to the correctness of theories of law and society.

Be sure to read the following articles, which all relate, directly or indirectly, to events with which we are confronted daily in the news media.

Metaphors of Terror

Lakoff begins:

"1: Our Brains Had to Change

Everything we know is physically instantiated in the neural system of our brains.

What we knew before September 11 about America, Manhattan, the World Trade Center, air travel, and the Pentagon was intimately tied up with our identities and with a vast amount of what we took for granted about everyday life. It was all there physically in our neural synapses."

Lakoff is a left-winger, but based on the above article, his science can clearly also support the right-wingers, suggesting that the metaphors which have now been collected in the brains of Americans and many people in the Western world do not bide well for the antagonistic nations, religions and cultures of this world. Lakoff argues for a contrary direction, but we think that the symbolism and metaphor which he outlines point in an entirely different direction.

The War on Terror

"Linguistics professor George Lakoff dissects the "war on terror" and other conservative catchphrases" by Bonnie Azab Powell, who quotes Lakoff:

"The values, principles, and general directions are what people care about and what brings them together."

Framing Political Issues

"Framing the issues: UC Berkeley professor George Lakoff tells how conservatives use language to dominate politics" by Bonnie Azab Powell, in an article which touches the questions:

"Why do conservatives appear to be so much better at framing? ...

Why haven't progressives done the same thing?"

The Theory of Cognitive Models, by Francis F. Steen concludes:

"Lakoff's notion of metaphor as a mapping from one cognitive domain to another as "one of the great imaginative triumphs of the human mind" has been echoed by the British paleo- anthropologist Steven Mithen (1996), who has suggested that the transition from Neanderthal man to Cro Magnon is marked precisely by the ability to "switch cognitive frames": the paleolithic blossoming in art may be correlated with the ability to think metaphorically."

Philosophy in the Flesh - We are Neural Beings: A Talk With George Lakoff,

introduction by John Brockman, states:

" 'Anything we can think or understand is shaped by, made possible by, and limited by our bodies, brains, and our embodied interactions in the world. This is what we have to theorize with.'

He then raises the interesting question: 'Is it adequate to understand the world scientifically?' "

Tech Blogs at ZDNet - Did you say Lakoff? or UBL?

Tech Blogs at ZDNet - Did you say Lakoff? or UBL?

The following absolutely informative Blogs at ZDNet

are found at

Between the Lines - "the blog for discriminating IT buyers" by Dan Farber and David Berlind. A recent posting suggest that the just released Mozilla Firefox 1.0 may be a safer, better choice for browsing than Internet Explorer.

We are staunch Microsoft IE (Internet Explorer) users so we remain skeptical about newbies on the browser landscape. Often the hype does not match the expectations. The first thing about Firefox that disturbs us is the non-intuitive placement of the integrated Google search box being in the far upper right hand corner of the browser. You might call this "mouse-stretching". We have the Google toolbar with a properly sized input box (much too small in Firefox) in IE and this is far preferable.

Steve Gillmor's InfoRouter has postings on the blogosphere and his recently coined term "podosphere" for podcasting.

George Ou has postings on security matters and writes about e-mail, spam, viruses and gateway protection as follows:

"...the number of unprotected e-mail domains that remain is shocking.

Unfortunately, too many IT geeks believe that users shouldn’t be so gullible and should learn to defend themselves. This is exactly what spammers count on to accumulate their hordes of zombies that are ready to launch spam or DoS (Denial of Service) attacks at their command, because there will always be a percentage of users who are completely helpless. If your organization or ISP doesn’t scan for viruses at the gateway, it’s time to demand change now."

Russell Shaw brings us IP Telephony and his November 9, 2004 posting on the just issued FCC ruling on VoIP:

"The Federal Communications Commission declared today that a type of Internet telephony service offered by Vonage Holdings Corp. called DigitalVoice is not subject to traditional state public utility regulation.

The Commission also stated that other types of IP-enabled services, such as those offered by cable companies, that have basic characteristics similar to DigitalVoice would also not be subject to traditional state public utility regulation."

Dana Blankenhorn and Joe Brockmeier keep us up to date on Open source, where and a recent post refers to the theories of Berkeley linguist, George Lakoff, according to which open source should try to get away from the term "intellectual property" since copyright infringement is less than that and actually has to do with "a limited right, granted for a limited term".

Hear, hear, all advocates! Lakoff's linguistic studies have led him to teach "that the way to win an argument is to control how the argument is described [framed]." This is no small potatoes, as a coming LawPundit posting on Lakoff will demonstrate.

Britton Manasco and Joe McKendrick present Service-Oriented IT and tell the e-business world on November 10, 2004 that:

"It’s official: UBL, or Universal Business Language, has been unleashed as a standard. On Monday, the standards group OASIS gave its final blessing to UBL, version 1.0, which functions as a standardized document format. As explained by CNET’s Martin LaMonica, UBL is meant to make it easier to turn paper records into electronic ones and, ultimately, easier to share documents, such as purchase orders, between organizations doing business online....

Some proponents, including Jon Bosak, distinguished engineer with Sun Microsystems and a founder of XML, says UBL 'could take over the world.' ...

UBL simply automates purchase orders and invoices – nothing more, nothing less, Bosak says...."

A UBL v1.0 package in ZIP-format can be downloaded here:

"The downloadable package for UBL Version 1.0 contains ca 244 files including: (1) XML schemas for eight basic business documents: Order, Order Response, Order Response Simple, Order Change, Order Cancellation, Despatch Advice, Receipt Advice, and Invoice; (2) a description of the generic order-to-invoice procurement process within which the UBL document types are designed to operate; (3) a library of more than 400 reusable XML data elements from which the UBL document schemas are constructed, complete with definitions based on the ISO/TS 15000 Core Components Technical Specification; (4) a description of the UBL 1.0 development methodology; (5) UML diagrams of the overall UBL data model and its constituent component packages — Address Package, Contract Package, Delivery Package, Document Reference Package, Hazardous Item Package, Item Package, Party Package, Payment Package, Procurement Package, Tax Package; (6) Document assembly diagrams showing the relationship between each of the UBL document types and its constituent components; (7) Excel and OpenOffice spreadsheets showing the data models of each of the UBL documents and the UBL component library; etc."

War-Crimes Trials at Guantanamo

War-Crimes Trials at Guantanamo

Civil Action No. 04-1519

Memorandum Opinion & Order Issued November 8, 2004 by Judge James Robertson

A November 9, 2004 article by Neil A. Lewis at the New York Times entitled

Judge Halts War-Crime Trial at Guantanamo

reports that James Robertson has

"ruled that President Bush had both overstepped his constitutional bounds and improperly brushed aside the Geneva Conventions in establishing military commissions to try detainees at the United States naval base here as war criminals."

Robertson is a controversial left-wing Clinton appointee who manifests the judicial problem which is leading the Bush administration to appoint counterbalancing right-wing judges, a development which we find to be an unfortunate, if understandable, reaction to the continued encroachment of the judiciary branch of government into legislative and executive spheres.

Robertson opined:

"The well-established doctrine that federal courts will “normally not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted,” Schlesinger v. Councilman, 420 U.S. 738 (1975), is not applicable here."

It will be interesting to see if that opinion holds up under judicial review.

In addition, Robertson's 47-page memorandum contains the following conclusion:

"It is now clear, by virtue of the Supreme Court’s

decision in [...], that the detentions of enemy combatants at

Guantanamo Bay are not unlawful per se. The granting (in part)

of [the] petition for habeas corpus accordingly brings only

limited relief. The order that accompanies this opinion

provides: (1) that, unless and until a competent tribunal

determines that [the accused] is not entitled to POW status, he may be

tried for the offenses with which he is charged only by courtmartial

under the Uniform Code of Military Justice...."

The argument of the government to the contrary is that a terrorist is not a prisoner of war (POW) and that the accused in this case has been declared an "enemy combatant" and thus not to be a POW by the President of the United States in his capacity of Commander-in-Chief.

Robertson opines that this status must be determined by "a competent tribunal", writing:

"...the President himself has determined that [the accused terrorist] was a member of [a terrorist organization] or otherwise involved in terrorism against the United States. Id. Presidential determinations in this area, the

government argues, are due “extraordinary deference.” 10/25/04 Tr. at 38. Moreover (as the court was advised for the first time at oral argument on October 25, 2004) a Combatant Status Review Tribunal (CSRT) found, after a hearing on October 3, 2004, that [the accused terrorist] has the status of an enemy combatant “as either a member

of or affiliated with [a terrorist organization].” 10/25/04 Tr. at 12.

Article 5 of the Third Geneva Convention provides:

'Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.'

This provision has been implemented and confirmed by Army Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees,, [The accused terrorist] has asserted his entitlement to POW status, and the Army’s regulations provide that whenever a detainee makes such a claim his status is “in doubt.” Army Regulation 190-8, § 1-6(a); [...], 124 S. Ct. at 2658 (Souter, J., concurring). The Army’s regulation is in keeping with general international understandings of the meaning of Article 5. See generally Generals and Admirals Amicus Brief at 18-22.

Thus the government’s position that no doubt has arisen as to [the accused's] status does not withstand scrutiny, and neither does the government’s position that, if a hearing is required by Army regulations, “it was provided,” 10/25/04 Tr. at 40. There

is nothing in this record to suggest that a competent tribunal has determined that [the accused] is not a prisoner-of-war under the Geneva Conventions. [The accused] has appeared before the Combatant Status Review Tribunal, but the CSRT was not established to address detainees’ status under the Geneva Conventions. It was

established to comply with the Supreme Court’s mandate in [...], supra, to decide “whether the detainee is properly detained as an enemy combatant” for purposes of continued detention."

Of course, Robertson's logic is faulty. There is no doubt about the accused's status because the President has already made a decision that he is an "enemy combatant". Moreover, even if we were to follow Judge Robertson's line of reasoning, he begs the question (i.e. assumes the truth of the thing to be proved) and implicitly assumes that the CSRT - which is specifically called a Combatant Status Review Tribunal - is not "a competent tribunal" because it was not specifically established to address detainees' POW status under the Geneva Conventions - as if the Geneva Conventions could require sovereign governments to establish special courts just for the interpretation of its provisions. If the CSRT (constituted to accord with a decision of the United State Supreme Court) determines that a detainee is properly detained "as an enemy combatant" (hence, not a POW) - thus affirming the President's determination of the detainee's status, then there is "no doubt" about the accused's status and that should end the matter.


A November 22, 2004 posting at SCOTUS Blog by Lyle Denniston covers the newest developments in the above case.

Judges Barred from Law School Surveys?

Judges Barred from Law School Surveys?

Paul L. Caron,

Charles Hartsock Professor of Law and Director of Faculty Projects at the University of Cincinnati College of Law,

has a posting at TaxProf Blog entitled

N.J. Judges Told: Just Say No to U.S. News Law School Survey.

As Caron writes:

The New Jersey Administrative Office of the Courts has issued a directive to all New Jersey state court judges to refrain from filling out the reputational survey for the U.S. News & World Report law school rankings...."

The acting director of the above-named office is Philip S. Carchman.

Ok, all you legal pundits, judges and justices out there, is this legal?

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