Monday, July 21, 2008

Readers of LawPundit : Hacienda Heights, California : Location of the Hsi Lai Temple : Buddhism and Chinese Culture

We recently had a visitor at LawPundit from Hacienda Heights, an unusual unincorporated census-designated place in Los Angeles County, which is definitely one of the most interesting communities in the State of California, if not the entire United States. The Wikipedia notes:

"Hacienda Heights is notable for being home to one of the largest Buddhist temples in the United States, the Hsi Lai Temple (meaning "Coming West"). The temple encompasses 15 acres and a floor area of 102,432 sq. ft. The temple's Ming Dynasty (1368-1644 AD) and Qing Dynasty (1644-1911 AD) architecture is faithful to the traditional style of buildings, gardens, and statuary of traditional ancient Chinese monasteries. Hsi Lai was built to serve as a spiritual and cultural center for those interested in learning Buddhism and Chinese culture."

Hsi Lai Temple, Photo by Aaron Logan
This file is licensed under a Creative Commons Attribution 1.0 license

The Hsi Lai Temple in Hacienda Heights is one of two locations in California which claims to be the largest Buddhist monastery in the Western hemisphere. As written at the Wikipedia:

"Since 1988, members of Hsi Lai and others have claimed that their temple is the largest temple in the Western Hemisphere. However, the City of Ten Thousand Buddhas situated in Talmage, Northern California has over 80 acres of built-up land on 488 acres (1.97 km²) of property as compared to Hsi Lai Temples' 15 acres, but rather than a temple complex as is Hsi Lai Temple, the City of Ten Thousand Buddhas is more of an entire community with several large buildings clustered together. Therefore, both organizations lay claim to being the largest Buddhist monastery in the West....

Hsi Lai is a popular venue for tourists interested in learning more about Chinese culture and Buddhism, and has even been coined the "Forbidden City of America."

The former Hsi Lai University in Hacienda Heights moved to Rosemead, California in 1996 and was renamed The University of the West (Hsi Lai means "Coming West"). It is the first Buddhist-funded university in the United States but students need not be of the Buddhist faith.

Facebook Sues German Social Website StudiVZ (Studienverzeichnis, Studentenverzeicnis, "Students Directory") for Intellectual Property Infringement

Facebook, which has not been successful in establishing itself on the German market for online social networking, has in California federal court filed an intellectual property law suit against the leading German-language (Germany, Austria, Switzerland) social networking website StudiVZ (Studienverzeichnis, Studentenverzeichnis, i.e. "students directory") claiming that StudiVZ is a clone of Facebook. In response, as reported by Reuters:

"The German company sued by Facebook for running a "knockoff" of the social networking Web site said on Sunday it asked a German court to declare that Facebook's claims are without merit....

StudiVZ filed for declaratory judgment at the District Court in Stuttgart, also on Friday.

Facebook's suit also seeks compensatory damages in an amount to be determined at trial.

StudiVZ claims Facebook is suing them only because Facebook has failed to transplant its success in the United States and other countries to the German market.

"Their strategy appears to be: 'If you can't beat them, sue them,'" said Marcus Riecke, chief executive of studiVZ, which is owned by Verlagsgruppe Georg von Holtzbrinck, a German publishing company.""

We personally know people who use StudiVZ and the reason they chose StudiVZ was because the site was designed suitably to their tastes and wishes in German. Just compare the registration pages of the The website and the website and you will already see the strong difference in style, with the studiVZ interface much more European in format. Indeed, the German registration page for Facebook is a strict translation of the American version, with no cultural adjustments. Facebook thus has simply been unable to match German tastes, although no one doubts that all the many social networking sites are by nature similar.

It may appear initially curious that the suit is being brought now, several years after Facebook considered buying and even entered into negotiations with them, but the reason for the suit is clear when one becomes cognizant of the fact that Facebook more recently entered the German market with a German-language version and has made little headway here since then.

We are not fans of Facebook or its management by any means and regard this as a very stupid lawsuit. In our view, Facebook has little prospect of winning here in Germany, and a defeat will give other social networking websites the motivation they need to press forward.

The name of the game is competition and we think that the German courts will so decide. There is very little innovative about Facebook or MySpace, the two leading social networking websites in the US - but not elsewhere, whose origin can be traced back to online development in progress long before these sites existed. As noted at the Wikipedia:

"History of social networking services

The notion that individual computers linked electronically could form the basis of computer mediated social interaction and networking was suggested early on [7]. There were many early efforts to support social networks via computer-mediated communication, including Usenet, ARPANET, LISTSERV, bulletin board services (BBS), and EIES: Murray Turoff's server-based Electronic Information Exchange Service (Turoff and Hiltz, 1978, 1993). The Information Routing Group developed a schema about how the proto-Internet might support this.[8]

Early social networking websites included (1995), focusing on ties with former school mates, and (1997), focusing on indirect ties. User profiles could be created, messages sent to users held on a “friends list” and other members could be sought out who had similar interests to yours in their profiles [9] Whilst these features had existed in some form before came about, this would be the first time these functions were available in one package. Despite these new developments (that would later catch on and become immensely popular), the website simply wasn’t profitable and eventually shut down [10]. It was even described by the website’s owner [11] as “simply ahead of its time.” Two different models of social networking that came about in 1999 were trust-based, developed by, and friendship-based, such as those developed by Jonathan Bishop and used on some regional UK sites between 1999 and 2001.[12] Innovations included not only showing who is "friends" with whom, but giving users more control over content and connectivity. By 2005, one social networking service MySpace, was reportedly getting more page views than Google, with Facebook, a competitor, rapidly growing in size.[13] In 2007, Facebook began allowing externally-developed add-on applications, and some applications enabled the graphing of a user's own social network - thus linking social networks and social networking.[14]

Social networking began to flourish as a component of business internet strategy at around March 2005 when Yahoo launched Yahoo! 360°. In July 2005 News Corporation bought MySpace, followed by ITV (UK) buying Friends Reunited in December 2005.[15][16] Various social networking sites have sprung up catering to different languages and countries. It is estimated that combined there are now over 200 social networking sites using these existing and emerging social networking models,[17] without counting the niche social networks (also referred to as vertical social networks) made possible by services such as Ning and KickApps. [18].

Facebook did not rise to popularity because of innovation but rather because of investment.

In any case, although we think Facebook has no chance in Europe, what the California court will do in the US suit is unclear as the California courts are prone to aberrations.

The irony of this lawsuit against studiVZ is that Facebook just settled a lawsuit with ConnectU (we posted about this earlier at LawPundit), which claimed that Facebook had "ripped off" ConnectU's original social networking website ideas.

John Palfrey, (former?) executive director of the Berkman Center for Internet & Society at Harvard, is quoted by Michael Levenson of the Boston Globe regarding the merits of the Facebook-ConnectU case, as Levenson writes:

"The case underscores the difficulties in pinpointing the originators of ideas on the Internet, particularly for social-networking sites.

"One thing about the Internet is that most ideas are developed collaboratively in the Internet space, and one thing that was difficult in this matter was trying to parse what was an original idea they had and that somebody else had taken advantage of," said John Palfrey, executive director of the Berkman Center for Internet & Society at Harvard. "That was going to be awfully hard to show."

Palfrey said both sides should be happy the case was settled."

Now, undeterred, Facebook is itself busy cloning the applications of others for its own platform.

The fact that Facebook is now bringing this legal action against a German competitor tells us a lot about this company, which we would not touch with a ten foot pole.

The Up Side of the American Flag : "for the most part, for over 200 years, we've gotten it right"

We ran across this blog and this piece of thought and we thought it was good, so we are sharing it with our readers, who might otherwise think that we are too critical of America:

Some thoughts on the US of A from momchick at Livin' My Life Like It's Golden:

"Now back to my flag...I think the same thing is true of this country. There are always going to be rough patches and tough times. There are going to be disagreements and there might even be times of great political strife. But at the end of the day, this country remains the greatest democratic experiment of all history. We balance our love of personal liberty against the needs of the greater good and for the most part, for over 200 years, we've gotten it right. We need to constantly work at getting better, but we have much to be proud of when we look at the "up" side of the flag."

Take a look at the "up" side of her flag.

The Morphology of Legal Reality : Form and Structure in a 4% Physical World Suggest Deeper Forces as Roots for the Rule of Law

Our previous posting on Law, Physics, Legal Theory, Cosmology, Fine-Tuning and the "Useful Parameterization of Ignorance" may at first glance appear to be a rather distanced comparison of two fully disparate conceptual worlds, but in fact our fully justifiable juxtaposition of cosmology and legal theory points inexorably to a much deeper level hidden in the morphology of legal reality.

If we take as a given that our human view of reality is limited at its maximum by the previously discussed mere 4% of the physical universe that is known to us through our cognizance of the atomic world, and if a full 96% of the actual universe is in fact invisible to us, as prevailing cosmological theory would tell us, then what can we know about the true fundamentals of human law?

The famed and now retired advocate Gerry Spence, for example, is grappling with this kind of a problem in his newly begun series of postings that start with What if freedom is a myth?

How, for example, is any "Rule of Law", however described, to prevail against the specter of "Religion", for example, which increasingly calls upon the invisible 96% of the universe's powers. Must the law also call for assistance to the more powerful actors of that universe: the invisible cold dark matter and the dark energy of the primordial underlying forces?

When we speak about the original meaning of the United States Constitution, for example, and when we try to interpret that Constitution in light of the intentions of the original founders of the nation -- as if deeds were to be judged by intentions rather than by results -- are we talking about the 4% of the universe that is known, or are we talking about the 96% of the universe that is invisible to us, thus opening wide the doors to self-serving speculation about what was?

Calling up these invisible spirits of cold dark matter and dark energy is - for certain - a potentially dangerous proposition for all concerned, because no one can be sure where it may lead. It is not without reason that legal theory generally concentrates on the more superficial visible world, avoiding confrontation at the level of fundamental forces, preferring to pick out one group of legal atoms or another as the subject of jurisprudential inquiry, and discussing rationales for the "Rule of Law" in terms of tangible, Newtonian physics, rather than via transcendental Einsteinian forces such as time-warped fields of relativity.

This Newtonian limitation is the vector and engine of motion for our present professed understanding of the nature of "Law", as this understanding is manifested in works of legal scholarship. The visible world of appearances is discussed at length in the peer-reviewed law journals, whereas the deeper nature of law lies submerged beneath the surface.

To some degree, that hidden world is what we call "unwritten law", a concept which gave the philosopher Hobbes so much difficulty.

Alan Cromartie (University of Reading, Department of Politics, Whiteknights, PO Box 218, Reading, UK), British Journal of Politics and International Relations, Volume 2, Number 2, June 2000 , pp. 161-178(18), Blackwell Publishing, DOI: 10.1111/1467-856X.00032) writes about Unwritten law in Hobbesian political thought, a pay-to-view article which is abstracted online as follows:

"In Hobbesian terminology, 'unwritten laws' are natural laws enforced within a polity, by a non-sovereign judge, without some previous public promulgation. This article discusses the idea in the light of successive Hobbesian accounts of 'law' and 'obligation'. Between De Cive and Leviathan, Hobbes dropped the idea that natural law is strictly speaking law, but he continued to believe unwritten laws must form a part of any legal system. He was unable to explain how such a law could claim a legal status. His loyalty to the notion, in spite of all the trouble that it caused, is a sign of his belief that moral knowledge is readily accessible to all."

One aspect of our contemporary "unwritten law" is something which modern philosophy might subsume under the modern concept of egalitarianism, which we find more negatively defined in Nordic countries as Jante Law or in several English-speaking nations as the Tall poppy syndrome.

Such unwritten laws are the antithesis of elitism and are found enshrined as a legal principle in the American concept of equality under the law, a concept which has developed different judge-made levels of legal protection depending on the subject matter in question: 1) strict scrutiny for categorizational violations of equality because of race or national origin; 2) intermediate scrutiny for categorizational violations of equality based on sex (gender); and, 3) a rational-basis test of "reasonableness" for categorizational violations of other kinds.

But how does all of this square with genetics, science in general and Darwin's concept of survival of the fittest? Is this all not in actuality based on a strange kind of "unwritten law"?

For example, The Theist writes at the Friendly Atheist in Can We Have Government Without Faith?:

"Let's say Congress passes legislation on universal health care, and a politician suggests that a certain group be left out of coverage, let's say people with Downs Syndrome.

Now, most people would be appalled at this suggestion. The argument against it would be that everyone is equal, and deserves equal treatment under the law.

But how do you prove this? In fact, science tells us that we are not all equal. Some of us are taller, stronger, faster, and have higher IQ’s. The idea that we are all equal is in contradiction of what science concludes. A person might then argue that we all deserve equal treatment, even if we aren’t equal. But how do you prove this? In fact, science tells us that many species survive by letting the weak or sick die instead of depleting resources for them when they can’t add survival value to the community....

[E]veryone I have met from an atheist perspective believes in certain principles, such as equal worth of all humans, equal treatment of all humans, and autonomy. In fact, people will stand behind these principles like they will the laws of physics....

I will use Richard Dawkins distinction between science and faith as put forth in The God Delusion, where he states: “Religion turns untested belief into unshakable truth, where as science is a process of reason, skepticism, and questioning to draw conclusions.”

Using that definition, it seems the belief in equal worth, equal treatment, and autonomy are more faith based than science. So given that we want these principles in government, is it not necessary to have faith inside government? For people reading this who identify themselves as atheist yet believe in these principles, how is that not faith?"

The blog Winter's Haven has an answer for this quandry:

"It's clear that the theist is confused about Legal Equality; if you read the comments, you’ll see that the atheists are just as confused.

Let’s try to untangle this mess. Firstly, all people are not equal. Individual humans are quite different from each other in a wide variety of ways. But you already knew that.

Yet if people aren’t equal, what does it mean for them to be “equal under the law”, and why is that a good idea? The answer is actually fairly simple. The core idea behind Equality Under the Law is that the law should only treat people differently if there are relevant differences between them....

Of course, sorting out how relevant various differences are can be a complicated business. What the principle of Equality Under the Law objects to are laws which hand out privileges to certain groups arbitrarily and without good reason."

And so, writes Robert Blake at the Foundation for Economic Education:

"According to the Declaration of Independence, "All men are cre­ated equal."

But man is a creature of limita­tions. He is limited as to height, weight, strength, health, intelli­gence, beauty, virtue, inheritance, environment, everything. Since these limitations vary from man to man, no man is equal to an­other, not physically, mentally, morally, or spiritually. In fact, all men are created unequal, except in one sense: All men are created equal under the Law. All men are equally subject to the same physi­cal laws, the law of gravity, nutrition, growth, and so on. And all men are equally subject to the same moral laws: Thou shalt not steal; Thou shalt not kill, and the like. Since civil law is, or ought to be, an extension of moral law, all men should be equally subject to civil law. Whether a man is rich or poor, strong or weak, black or white, influential or a nonentity, should make no more difference under civil law than under physi­cal or moral law. This is what is meant by the Declaration of Inde­pendence: All men are created equal under law."

Equality under the law is therefore more like the invisible fields of relativity rather than the precise visible genes of biological genetics, and this brings us full circle to our original juxtaposition of cosmology and legal theory. Even the idea of equality is a "dark field of energy" rather than an identifiable physical component of the brightly lit legal universe.

Accordingly, it is not the US Constitution which is in reality the "law of the land", but rather the underlying forces which created that Constitution. It is thus not the "original meaning" of the Constitution which is therefore determinative but rather the origin of that original meaning. What was decided is not as important as why it was a subject of decision in the first place.

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