"Where there is no vision, the people perish: but he that keepeth the law, happy is he."
-- Proverbs 29:18, King James Bible (KJV)

Friday, April 29, 2016

E-Commerce Razor Blade Startup Harry's Meshes Disruptive American Entrepreneurship With German Engineering Know-How

Bernhard Warner at Inc.com in How Harry's Became the Warby Parker of Shaving reports on a marvelous story of the difficult but thus far successful mesh of disruptive American "shaving" entrepreneurship with a century of German engineering razor blade know-how in Eisfeld, Germany.

Hat tip to CaryGEE.

Trump's Simple Patriotism A Major Key to His Political Success Writes Peggy Noonan

At the Wall Street Journal, Peggy Noonan has it right about Donald Trump that Simple Patriotism Trumps Ideology.

Too many mainstream politicians and writers are looking at ideological trees, rather than at the political forest. In her article, Noonan looks at that forest.

Hat tip to CaryGEE.

Thursday, April 28, 2016

Inter Partes Patent Act Provisions Under Review in Supreme Court Oral Argument re Cuozzo Speed Technologies v. Lee

Ronald Mann at SCOTUSblog has oral argument analysis of
Cuozzo Speed Technologies v. Lee at
Justices struggle to read “tea leaves” in Congress’s slipshod drafting
of Patent Act provisions for inter partes review

Is a statutory reading conforming to considerations raised by U.S. Supreme Court Justice Stephen Breyer in a quote of Breyer by Mann going to be the decision in this case? See here.

Based upon our many postings over the last 10 years criticizing the vast over-reaching of patent claims and the massive over-issuance of patents per se in our technological era, we would of course favor a statutory interpretation that permits as much invalidation of past patents as possible AND that ALSO results in a strong reduction in the number of new patents to be issued in the future: i.e. a "results-oriented" decision, both retroactively as well as prospectively, might be one way to look at Congressional intention.

One could indeed argue that "who", as a practical matter, whether courts or quasi-courts, does the above -- seriously necessary -- "patent reform" implementation, may not be as important, as that it be done.

Is the current process therefore "chilling"? It appears to us that legitimate inventors of legitimate inventions will continue to apply for patents for their discoveries, regardless of the now challenged inter pares patent review.

Political Commentary and Rhetorical Fallacies: Kathleen Parker Invokes Plato and Aristotle in Discussing Trump: Is She Begging the Question?

Here is the teaser for this posting:
Which of the following statements are true?

A. All political rhetoric follows only the rhetorical rules of Plato.
B. All political rhetoric follows only the rhetorical rules of Aristotle.
C. All political rhetoric follows (elements of) both the rhetorical rules of Plato as well as of Aristotle.

Of course, only the last statement - C -  and ONLY C is true. But tell that to Kathleen Parker, author of a political commentary in the Washington Post that Plato would be horrified by Trump’s rise.

Journalist Kathleen Parker is not part of our normal political reading spectrum (if we read "right" at the Washington Post, we read Charles Krauthammer), but someone sent us the above-cited piece about Plato, Aristotle and Donald Trump. We found it to be "Quixotic!" so we took a closer look at the writer.

We discovered that Parker's college education apparently began at the women's only Converse College in Spartanburg, South Carolina and some apparently see her as a conservative feminist. Nothing wrong with that. We all have our direction. Converse, not the shoes, is in NCAA Division II in the Conference Carolinas, competing as the Valkyries ("choosers of the fallen"). If you are a sports fan and never heard of them, it is because they (obviously) field no men's teams. We were unaware such colleges still existed.

Based on what we find online, it appears that Parker transferred from Converse to Florida State, finishing with an M.A. in Spanish Literature.

So far, so good. We have a picture. Trump has foolishly angered some of the ladies with stupid statements, and we do not just mean Megyn Kelly, and it has cost him lots of votes. Moreover, he is like a modern Don Quixote, fighting the windmills of the established GOP. Where is Sancho Panza?

The Ingenious Gentleman Don Quixote of La Mancha (Spanish: El ingenioso hidalgo don Quijote de la Mancha) is a Spanish novel by Miguel de Cervantes Saavedra. The book, published in two volumes in 1605 and 1615, is an early masterpiece of Western Civilization, viewed by some as the first and best "modern" novel. Who knows, perhaps Don Quixote was a motivator for Parker to professionally find her way into the field of  "opinion-writing political journalism", which culminated in her winning the 2010 Pulitzer Prize, awarded by Columbia University, for "Commentary". Quite an honor, actually.

Parker surely has battled windmills too on her gauntlet run to journalistic success. Indeed, her personal Rocinante has taken her far afield from the knight-errant of La Mancha, as she now blissfully ventures into the foreign realms of Philosophy and Law (a guest lecture at Virginia Law School), whirling through the axiomatic caves of the philosophers, and in her above-cited article viewing Donald Trump via the rhetorical "rules" of Plato and Aristotle.

Let us take a look at Aristotle, who Parker dismisses as wrong on rhetoric.

Aristotelian Logic was a marvelous course that we enjoyed in our undergraduate days in college, taught by Cedric Evans, a fantastic teacher in whose name a memorial lecture is still held annually. Evans always urged us to create syllogisms of our arguments in order to test their veracity. That is why we have the teaser at the start of this posting. Look at it again.

Be sure of what is really true and what is actually being argued.
Is what Trump is doing so different than what is normal fare in politics,
or is it that he is doing it so much more brashly and successfully?

More than a century ago, William Minto, Scottish man of letters and Parker fellow journalist as editor of the Examiner, wrote in Logic, Inductive and Deductive, that "Aristotelian Logic can never become superfluous as long as men are apt to be led astray by words." We take that to include the ladies.

Cloaking one's personal political opinions in the camouflage of philosophical logic, is -- to apply a quote from Parker's article -- to put journalistic rhetoric "in the wrong hands".

People are entitled to their political opinions. Mixing them up with the writings of the founders of rhetorical logic, as if they were a recipe for fudge cake, is wrong. So our opinion. There are some honest professions out there -- very few, when push comes to shove. Politics is not one of them.

The rhetoric of any politician we choose is never neither/nor, either/or but rather some of this and some of that, and a mixture of everything between. All rhetorical practices, desirable and undesirable -- depending on your point of view, of ANY politician, are a matter of degree. That's politics. That's life. Much of what people say can often be "white lies". Get over it.

ALL politicians are guilty at some point of "invalid" rhetoric. That is in the nature of their profession. Some political candidates may just be better at this game of slight of hand than others, but singling out one political candidate as a departure from the others is simply politically preferential dishonesty. We happen to think Cruz is worse on this score. It is a matter of one's political decision-making. A quieter politician (e.g. Kasich) necessarily tells fewer fibs. He still may not get the votes.

Plus, some people believe their own hype. Does intent determine  "a lie"?

Aristotle in Sophistical Refutations and Prior Analytics discusses a rhetorical fallacy which Parker relies upon greatly and perhaps unknowingly, which has come down to us in modern times known as "begging the question", which can be defined as "assuming the truth of the thing to be proved".

Begging the question is a widespread rhetorical viz. "epistemic" means of argumentation in modern political writing and discourse, and we thus quote here a lengthier description from the Wikipedia:

"To beg a question means to assume the conclusion of an argument—a type of circular reasoning. This is an informal fallacy, in which an arguer includes the conclusion to be proven within a premise of the argument, often in an indirect way such that its presence within the premise is hidden or at least not easily apparent."

Since ALL politicians follow elements of both Plato's and Aristotle's rhetorical "rules", to one degree or another, then the conclusion of Parker in her article is preordained and we could find ANY politician sometimes guilty of the sins of which Parker speaks. It is all a matter of degree and political preference. Look at what all the politicians of both political parties are PROMISING -- and how much of that can they really deliver? It is mostly "white lies", to get votes.

How much change could President Obama deliver when opposed by a Republican-obstructionist Congress? Not what the rhetoric promised. The same holds true for any candidate. PROMISES are WISHES, and if wishes were horses, beggars could ride.... The "real world" always sets greater limits than what is rhetorically being promised....

In other words, the conclusion "arrived at" by Parker was already included "initially" with the premise of the argument and hence is logically invalid. It proves NOTHING, because Trump in his rhetoric should not rightly be set apart from other politicians. It is only a matter of degree, of personal style and success of argumentation, and an entirely different matter of political judgment, which is why we have elections, and winners and losers.

If elections were held just to choose the most honest candidate? Dream on.
Honest candidates are seldom if ever elected.
Most candidates say they will reduce taxes. The result is always otherwise.

All of Madison Avenue advertising and the entire world of capitalist commerce thrives on precisely the type of rhetoric that we find in Trump. Hype, and more hype. People want to be told what they want to hear. That is the way it is.

Now, just look around you and count all of the "brand" name products on your desk, or in your office, or in your home, or wherever you are.

You bought them simply based on quality and the honesty of the ads, right?
Rather than identical no-name clones... Right?

We have an octacore Chinese no-name smartphone that we bought online from China two years ago when octacore was not even being offered in Western stores. The interest in this phone in the West was otherwise zero, because it lacked the brand-name hype. People trust "their" brands.

So don't complain about Trump. He does not "decide" the market. YOU do.
In stores, it is your decision of what to buy. In elections, it is who you vote for. The principle is the same, and the outcome is similar.

Honest rhetoric has nothing to do with it as long as you get the product you want, and what you want, well, that is a broad science in and of itself....

To get to the bottom of that, we would have to discuss the human condition, .... sometimes Plato, sometimes Aristotle ... and that is a sheer endless book too voluminous even for the shelves of the U.S. Library of Congress....

Monday, April 18, 2016

Modern Attorney Advertising Since Bates v. State Bar of Arizona (or) How Far Have Things Come in the Virtually Monastic (Medieval Origin) Legal Profession?

Victor Li at the ABA Journal reports from the seventh annual Avvo Lawyernomics conference that Lawyers should be big, brave and bold in their advertising efforts, at least as based on two keynote speeches by Scott Stratten, president at Un-Marketing, and Ann Handley, chief content officer of MarketingProfs. It was Handley who specifically "encouraged lawyers to be 'bigger, braver and bolder' when creating content for marketing purposes".

Big, Brave & Bold? It could be a law firm name. Surely the speakers Stratten and Handley are right in urging more courage, but how far has lawyer advertising actually moved since the 1977 U.S. Supreme Court Decision in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), and why not further.

Bates v. State Bar of Arizona was our favorite case to teach law students legal analysis in the days when we were FFA Lecturer in Anglo-American Law, Legal Research and Legal Writing at the University of Trier Law School.

Legal issues relating to attorney advertising illuminate the legal profession better than perhaps any other parameter, and it is perhaps significant that very little substantive progress has been made on this score in 40 years.
State bar associations in the USA rely upon the ABA (American Bar Association) Model Rules of Professional Conduct for basic guidelines, but each State bar brews its own cauldron of regulations in exercising local monopoly powers over its members. Attorneys are kept on a tight rein. Why is that so?

The profession of law retains many similarities to a monastic order. See James A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts, University of Chicago Press, 2008 [reviewed at forum historiae iuris by Mark R. Munzinger]; Amelia J. Uelmen, A View of the Legal Profession From a Mid-twelfth-century Monastery, 71 Fordham L. Rev. 1517 (2003). Available at: http://ir.lawnet.fordham.edu/flr/vol71/iss4/11; James A. Brundage, The Ethics of the Legal Profession: Medieval Canonists and Their Clients, 33 Jurist 237, 237 (1973).

Munzinger in his above cited review summarizes Brundage's main thesis:
"Brundage defines professionalization, in its strictest sense, as much more than the acquisition of the skills necessary to making a living in a given occupation. Rather, a true professional has studied and mastered a body of esoteric knowledge, an accomplishment that confers a degree of prestige; the occupational application of that knowledge is not only useful, but purports to promote the interests of the whole community; the professional has pledged to uphold an ethical standard different and more demanding than ordinary community norms require. These criteria lie at the base of Brundage’s thesis and provide the framework for his account of the development of the medieval legal profession.
Although Professor Brundage modestly deems his book a provisional account to be modified by further research, Medieval Origins is nothing less than the magnum opus of a master scholar. As such, it lays the foundation and sets the standard for future work on the subject. Medieval Origins of the Legal Profession not only delivers on its title, but is much more besides. Every medievalist, legal historian, and lawyer interested in the history of his or her profession should have a copy on their shelves."
At the ABA website page on Professionalism & Ethics in Lawyer Advertising we find under Latest Developments an update from January 1, 2016 in the form of a .pdf about Differences between State Advertising and Solicitation Rules and the ABA Model Rules of Professional Conduct, plus links to Court Rulings, Reports and still other Links.

The .pdf cited above writes in addition: "For links to all state ethics rules (including advertising rules), go to" ... Links of Interest at
http://www.americanbar.org/groups/professional_responsibility/resources/links_of_interest.html, an online page which then takes us to more Links to Other Legal Ethics and Professional Responsibility Pages.

Those links include
  • Nationwide links 
  • Links relating to Individual States of the United States each state, plus
  • Foreign Rules of Professional Conduct (Australia, Canada, United Kingdom, and Other Countries) 
  • Links to Law Schools involved with Law and Ethics
  • Additional American Bar Association Ethics and Professional Responsibility Resources 
  • National Organizations dealing with legal ethics and professional responsibility
  • Journals dealing with the Legal Profession and Ethics, and
  • Other Links
Whoever reads the U.S. Supreme Court decision in Bates v. Arizona and then compares the holding in that case with various current State bar rules and regulations will quickly see that the bar associations utilize their monopoly powers just as effectively now as nearly 40 years ago in keeping their membership under a strong virtually monastic regime of discipline, also as regards attorney advertising.

A bit off topic, but we might add here for those interested in the historically, militarily and politically critical corridor between the Baltic Sea and Black Sea, which remains a hot spot in our modern political world today, that Munzinger, cited above, also has written some interesting material about that:

Mark R. Munzinger, The Profits of the Cross: Merchant Involvement in the Baltic Crusade (c. 1180-1230), Journal of Medieval History 32 (2006), 163-85., cited in Alan V. Murray, editor, The Clash of Cultures on the Medieval Baltic Frontier, Routledge & Taylor Francis Ltd, United Kingdom (2009), Ashgate Publishing Ltd., Farnham, Surrey UK and Burlington, VT, USA.

"Above the Law" Blog Bans Comments: LawPundit Drew the Same Conclusion Years Ago

Debra Cassens Weiss at the ABA Journal reports that
Plagued by 'often offensive' comments, Above the Law bans them all.

LawPundit made that same experience already years ago, as have surely many other blogs and websites.

When people are able to post anonymously under aliases, many apparently no longer feel constrained by the finely set but unwritten rules of normal social dialogue, and things get out of hand quickly, leading to flame wars or comparable uncivilized discourse.

In those wars, commenting on the "substance" of things becomes secondary to what is in effect a textual "battle" for a given position in the commenting pecking order, thus reflecting the combative mentality of many blog posters. Mankind is a competitive being, and, without constraints, is on the warpath.

Of course, the fact of having online venues where would-be text-writing warriors can establish their place and prove their worth is perhaps a socially useful thing, but it wreaks havoc on serious blogs.

We found only two solutions to the problem: the first solution is to moderate all comments rigorously, which quickly proves to be a time-intensive waste of time, and the second solution is to dispense with comments altogether, which has the disadvantage that it can reduce the number of total readers and may even antagonize some of the most dedicated blog aficionados, who find themselves "chilled" by not being able to express their thoughts.

Well, that is why there are so many lawyers in real life. Things are difficult enough when there ARE laws, rules and regulations to uphold, and that can be enforced. In their absence, things become an inglorious free-for-all.

Democracy Spring & Democracy Awakening Movement Against Undue Influence in US Politics Leads to ca. 1000 People Being Arrested for Acts of Civil Disobedience to Call Attention to Needed Reforms

What is Democracy Spring? or Democracy Awakening?
or #DoYourJob, as in a placard found there:
"WE DO OUR JOBS! Senate, #DoYourJob".

USA TODAY writes:

"Democracy Spring protests at the US Capitol

[See photographs at USA TODAY.]

[caption to Image 1] Supporters of the activist group 'Democracy Spring', which has been staging protests for a week at the U.S. Capitol to 'end the corruption of big money in our politics and ensure free and fair elections', stage a sit-in at the U.S. Capitol in Washington, D.C. on April 15, 2016. Several dozen of them were subsequently arrested.

[caption to Image 2] Actress Rosario Dawson takes part in a demonstration on Capitol Hill in Washington on April 15, 2016. The demonstration, called Democracy Spring, is advocating a set of reforms the organizers have dubbed the 'democracy movement' demanding Congress amend campaign finance laws and restore the Voting Rights Act, among other actions".

We reproduce the Common Cause press release below because one of our Stanford classmates, Helen Baumann, née Brennan (J.D. 1971), has, according to Facebook postings at her site, probably been arrested for taking part in the Democracy Spring demonstration in Washington D.C. on Capitol Hill: "Aunt Helen Baumann was on Fox News (Waters World on the Bill O'Reilly) a few nights ago. She wasn't interviewed but you can see her marching."

We ourselves are political centrists. Out of pragmatic reality, we are not partial to such demonstrations, but we respect the courage of people who are willing to demonstrate peacefully about causes in which they believe strongly. After all, Helen is an attorney, a mother, and not a political radical.

Stanford people are often found at the forefront of new developments, be these what they may, so that one should take notice of these commitments, because such demonstrations can be only the small tip of a much larger political iceberg.

Anyone who has been following the course of GOP and Democratic Party primaries in the USA can not escape the feeling that something has gone badly askew in America, when even simple primary election processes appear to be greatly under the influence of small groups or caucuses of political elites, big money, hidden underground donors, and undemocratic ways of doing things. Worse, voters' wishes appear to be openly disregarded by "good old boy" political party vested interests, and even disregarded by Presidential candidates. That is not the "democracy in America" that the founding Fathers envisioned and that the nation wants to hold up as a model for the world. NOT.

One can thus fully understand the demonstrators, who are also demonstrating against U.S. Supreme Court decisions that seem to have badly misjudged discrimination and inequality in the nation and have clearly harmed civil rights improvements that had taken place over the course of past decades.

We write that as someone whose "law & order" views are stricter than those of most observers and who favors no special privileges for anyone, at any time, and that includes artificial "legal persons" such as corporations and religious institutions. LAW and its enforcement should be fair and impartial. The people's right to vote should be paramount under the "one person, one vote" principle. Civil rights should adhere only to PEOPLE and not to institutions or religions.

The rise and popularity of more-or-less "non-establishment" Presidential candidates on both sides of the political fence indicates that there is a broad sector of the electorate that is not amused by the shenanigans that they see being enacted daily by establishment political figures on the political stage, especially in the U.S. Congress, which has become more a circus sideshow than a legislature wisely enacting laws for the good of the nation. The problem is a simple one: there are far too many people in political positions who spend their time "playing being important" rather than "doing something important".

We are, by the way, not against wealthy people contributing to political causes, but they should not be able to do so anonymously or under the guise of some institution or company, because democratic governments should not be elected or run clandestinely by hidden powers. Who is to say what amounts of money from foreign political or corporate anti-democratic sources are being funneled into political channels in that way to influence domestic U.S. elections?

Here is the Common Cause press release:

For Immediate Release, April 17, 2016
Contact: Scott Swenson 202-423-8130, sswenson@commoncause.org

Common Cause: Democracy Awakening Proves the People Will Prevail
Facing Challenges, Finding Optimism: Together We Are Building a 21st Century Democracy that Works for Everyone

Washington, DC --- Thousands of Americans gathered on the National Mall calling attention to the citizen-driven grassroots movement steadily gaining momentum and scoring impressive early wins in the six years since the Supreme Court ruled in Citizens United. After allowing more secret unaccountable money to tip the scales more toward wealthy special interests, the court dealt democracy another blow when it made voting harder for many people in Shelby, dismantling parts of the Voting Rights Act. But as thousands gathered to fight the twin threats to democracy, the mood is decidedly optimistic.

In music, artistic performances, speeches from elected officials and movement leaders, the crowd stood as a representation of millions of Americans across the country who are part of more than 100 endorsing organizations. This movement, built town-by-town, state-by-state, started to emerge on the national scene during the 2016 election by framing the Fighting Big Money, Empower People: An Agenda for a 21st Century Democracy. Through a series of events during the past two weeks, the Democracy Spring and Democracy Awakening, more than 1000 people have been arrested in acts of civil disobedience to call attention to the need for the reforms as captured in the Fighting Big Money Agenda and the issues endorsed by these actions.

This growing political force is demanding a debate in 2016 about the future of democracy, money's influence, our right to vote, and the people's desire for government that works for all of us.

Common Cause is the largest and longest-serving citizen-advocacy organization with 35 offices in states working on the frontline of democracy reform. A recent growth spurt in membership, now at 475,000 and climbing, suggests the issues of how our democracy works are as relevant to the New American Majority as they were to the generation that founded Common Cause. In 46 years Common Cause citizen-lobbyists held power accountable, no matter which party was in power, and passed the nation's first open government and transparency laws; fought back against money's influence starting with Watergate; elevated ethics in legislative bodies; expanded the vote to 18 year-olds. Today Common Cause is helping pass the first Automatic and Online Voter Registration laws; leading model reforms to reduce money's influence, such as Connecticut's Citizen Election Program, which shifted the balance of power away from lobbyists and back to the people. In addition, Common Cause is working to pass impartial redistricting commissions to fight polarization and end gerrymandering; working against the concentration of media and for net neutrality, and the full range of issues election related issues to reform, modernize, and create a democracy that works fore everyone in the 21st Century.

Statement from the prepared remarks of Miles Rapoport, Common Cause president, Democracy Awakening, April 17, 2016, Washington, DC.
"As the challenges we face threaten the survival of democracy itself, we have reason to be extremely optimistic."
"We have come to this moment of Democracy Awakening -- because people are realizing the system is rigged against most of us, for the benefit of a few wealthy special interests."
"The issues of racial equality and economic justice, and a democracy that works for everyone are now at the top of the agenda in this election. You made that happen -- you stood on street corners protesting the Citizens United decision; you fought to expand access to the ballot in the face of the Shelby decision. Because you fought back against big money, every candidate for president, congress, and on down ballot will have to answer one question -- "what will you do to reduce money's influence so that everyone's voice and vote are equal and we preserve democracy of, by, and for the people?"
"By working together, town by town, state by state, we will win this our generation’s fight for democracy just as people before us won the rights for us to be here today. We will not be the generation that gives up on democracy, and the next generation, the New American Majority, they will be the generation that finally and forevermore secures a democracy reflecting and worthy of the rich diversity of ideas, experiences, and people that will define 21st Century America."
"You have changed the national conversation, and when everyday American's change their conversations about what is important, the policies and decisions will change soon after. The politicians always catch up sooner or later."

Common Cause is a nonpartisan, grassroots organization dedicated to upholding the core values of American democracy. We work to create open, honest, and accountable government that serves the public interest; promote equal rights, opportunity and representation for all; and empower all people to make their voices heard in the political process.

View of the web: http://www.commoncause.org/press/press-releases/common-cause-democracy.html

Sunday, April 17, 2016

Scott A. Barshay Leaves Cravath for Paul, Weiss to Add M&A to Already Market-Leading Practices in Private Equity, Litigation & White-Collar Defense

News about my alma mater law firm in New York City. This is "big time".

In a rare major lateral shift by a leading law firm partner in the Big Apple, Cravath's mergers & acquisitions guru Scott A. Barshay has left Cravath, Swaine & Moore ("Cravath") to head M&A at Paul, Weiss, Rifkind, Wharton & Garrison ("Paul, Weiss"), where Barshay will work alongside Paul, Weiss corporate practice head Robert Schumer, brother of U.S. Senator Charles Schumer (one of two U.S. Senators from New York State).

The New York Times has the story by Michael J. de la Merced at
A Cravath Partner Moves to Paul, Weiss.

Paul, Weiss law firm chairman Brad S. Karp characterized the move, as written by de la Merced:

"Mr. Karp said that building a truly elite law firm requires top teams in four disciplines: mergers, private equity, litigation and white-collar defense.

“We believe, especially with Scott’s addition, that we are the only firm that has market-leading practices in all those areas,” Mr. Karp said.

We repeat about Paul, Weiss and the reason we chose to join the firm years ago, convinced that it was the best law firm in the country:

"There can be only one!"

Russian President Vladimir Putin Takes a Positive Stance on Meldonium as Not Being an "Athletic-Performance-Enhancing" Drug

US News carries an AP story reporting that Russian President Vladimir Putin has gone on record as stating that Meldonium is not an athletic-performance-enhancing drug.

See the following link to a video at the above US News article which contains an excellent interview of Dr. Michael White, UConn School of Pharmacy, regarding meldonium, trade-named as Mildronate:

See video

We posted about this topic previously at LawPundit at Sports Law Pharmaceuticals & the Maria Sharapova Tennis Case: The Latvian Inventor of Meldonium Defends the Safety of the Allegedly Performance-Enhancing Miracle Drug aka Mildronāts, Mildronate, Quaterine, MET-88, THP (not Available in the USA or Germany).

The simple fact is that a 20-capsule package of meldonium at 250 mg per capsule is an OTC (over-the-counter) medication that can be purchased without a prescription in pharmacies in Latvia (perhaps in Russia too, we do not know). Meldonium is in our view quite comparable to ubiquitous vitamin and nutritional supplements and has been available for purchase for many years.

There is no evidence that taking meldonium somehow magically "enhances" athletic performance. It may make your heart healthier, just as some vitamin or similar supplements, or even certain foods, also claim to do, but that is by no means "drug misuse" of the kind that should be prohibited in athletics.

In the interview cited above, Dr. Michael White, who otherwise gives a straightforward, very informative interview, asks why Sharapova, who spends much of her time in the USA, does not take a "comparable" USA-FDA (Food & Drug Administration) approved "heart medication" rather than meldonium. Why should she do that if she has been taking meldonium without side effects for years? Nationalistic provincialism should not mark the pharmaceutical field.

As someone who worked for years in the pharmaceutical industry, here is our very personal but we hope instructive take on a further answer to Dr. White's question about what substances we can take. It is all about money.

We ourselves will hit the age of 70 this year and occasionally see signs of the wear and tear that advanced maturity can bring, so that we have occasionally taken a modern non-generic prescription-only state-of-the-art angiotensin II receptor blocker for our high blood pressure. It costs about €30 a month when taken in normal dosage and has some potential very undesirable side effects, so we have taken it sparingly. Who needs drug-induced difficulties? Not us.

We are a high energy individual, so that when meldonium first came to our attention, it looked to us like an interesting alternative substance that appeared capable of strengthening the heart and had no known side effects, so we obtained meldonium as the product Mildronāts - Grindeks, perfectly legally, prescription-free, and OTC from Latvia, a European Union Member State. We have no qualms about using it in Germany, another EU Member State, which in our view can not prohibit us from using such a medication freely available in the EU, even if the substance itself may not be approved for sale in Germany itself. That would otherwise contradict the "single market" principle. We are here, after all, not dealing with some kind of illegal drug.

In our short experience we can report that meldonium seems to have a very positive effective on lowering our high blood pressure and thus far shows no negative side effects whatsoever. There may even be a positive side effect.

We point here to a study which indicates that long-term high-dosage of meldonium intake may increase sexual performance in boars. See at PubFacts (which leaves out the diacritical markings), Zigmunds Bruveris, Vita Antane, Ilga Misane, Jazeps Rimeicans, Ivars Lusis, Alberts Auzans, Mara Mangale, Aleksandrs Mednis, Ilmars Stonans, Effects of meldonium on sexual performance, sperm motility, testes morphology and blood biochemical markers in boars. Anim Reprod Sci 2013 Jan 22;136(4):303-9. Epub 2012 Nov 22. [Author's Affiliation: Clinical Institute, Faculty of Veterinary Medicine, Latvia University of Agriculture, 8 K. Helmana Street, Jelgava, LV 3004, Latvia.]

To our knowledge, no comparable study has been published on humans, and there may be no comparable effect. Who knows.

And here is the rub, perhaps answering Dr. Michael White's question above.

A package of 20 such 250mg capsules of meldonium costs about €6, so let us say ca. €10 per month if taken as we take them, at one capsule a day, even though 2 are recommended as the normal dosage. That is a cost of ca. two-thirds less than what we would have to pay out of pocket for our non-generic angiotensin II receptor blocker, since insurance covers only cheap generics -- in our experience not always comparably effective. The annual cost is thus $120 instead of $360. Quite a bit of money for an average person.

As a sample of the prices in force for a high blood pressure medication such as e.g. Micardis -- that is the brand version while the generic is called Telmisartan -- see PharmacyChecker.com, which also appends the following footnotes significant for money questions and borderline legal issues:

""*The total price includes shipping fees which typically cover an entire order....
**U.S. Law and Drug Safety: U.S. government officials have stated that individuals who order non-controlled prescription drugs from Canada or other foreign sources (up to a three-month supply) for their own use are not being pursued or prosecuted. However, it is technically not legal for individuals to import most prescription drugs. The U.S. FDA regulates the safety and efficacy of medications sold in U.S. pharmacies. Medications dispensed from outside the U.S. are regulated for safety and efficacy by pharmaceutical/pharmacy regulatory authorities in other countries. Read how regulations may differ by country.
Coverage by Insurance: For a drug to be reimbursable from a health reimbursement account or flexible spending account it must be approved for sale in the U.S. and prescribed by a licensed U.S. physician, although drugs which you personally import are typically not reimbursable. If you have pharmacy insurance coverage, you may want to check with your benefits administrator to determine whether drugs ordered from outside the U.S. will be covered or reimbursed."

Why is meldonium not available for sale in Western nations? There appears to be a simple explanation. It is not a home-grown product and is priced reasonably. Hence, profits via meldonium would be much lower for indigenous pharmaceutical companies who would have to pay patent royalties on a licensed product sold much more cheaply than their own overly priced, patented, but perhaps nevertheless inferior remedies. We are reminded here of the many actions taken by Apple, Inc. to keep competing, in part, better, smartphones and tablets out of the country. The monopoly principle is the same. Keep competition out.

The meldonium controversy is thus conceivably not a medical issue at all, but rather an issue of institutional power, money and monopoly pharmaceutical markets.

The USA's FDA and similar institutions elsewhere function as "economic barriers to entry". Even if a drug has been clinically tested and approved elsewhere, every nation persists on making their own studies in determining the licensing of substances, a costly ever-duplicating process paid for by the taxpayers, who have no say in the matter, and who may even be paying top dollar for inferior pharmaceutical substances at their own local pharmacies.

When institutions such as the World Anti-Doping Agency (WADA) start blacklisting substances just because they are being used -- blacklisting without any evidence that they do in fact increase athletic performance unfairly, then things are askew in the systems of control that govern competitive sports, as we already know from negative examples at the NCAA, the FIFA and the Olympic movement.  Competitive sports are dominated by self-serving monopolies, often abetted by clueless lawmakers and courts who accord such sports organizations special advantages, to which they should not be entitled at all. EVERYONE is "in business". EVERYONE.

We note that in what looks to us like a retaliatory measure against the Russians, by the way, that WADA just revoked accreditation of the Moscow Laboratory. It all appears to be part of "the game" of monopoly in sports.

The competitive sports world has become -- or perhaps it always has been -- a golden goose for too many organizations and their officers at the cost of the competing athletes. The private WADA is surely no exception in this regard, as its monopolistic practises have come under increasing scrutiny (see the Wikipedia for examples).

Moreover, all of these organizations try to expand their powers as much as possible so that they can tell other people what they are supposed to do. Why people have that need for power is something we have never understood.

Indeed, it is the athletes who are usually being punished by these "ruling bodies" and not those who run athletics. It is a bizarre system of top-down injustice in which the ruling organizations and institutions control the lives of athletes for their own selfish self-serving and self-sustaining ends.

And now perhaps someone in Brussels or Berlin can explain to us why in the alleged "single market" of the European Union, it is virtually impossible to order prescription-free meldonium online, as it is not delivered by Latvian pharmacies outside of the territory of Latvia, as far as we have been able to determine. Mildronate used to be available through Amazon.de. No longer. Its sale is conceivably being blocked on the orders of someone.

Moreover, we have found a few links here and there online that seem to point to meldonium "teasers" -- you are warned -- i.e. websites not actually selling meldonium but purporting to do so, and perhaps acting on behalf of other parties to discover who is taking meldonium and who is not.

What goes on here as a matter of law, sports and politics?

Obama Strongly Pushing Open Market for Cable Set-Top Boxes In Order to Counteract Consolidation and Monopoly in the Cable Industry

In order to counteract the forces of consolidation and monopoly that mark the cable industry, U.S. President Barack Obama is strongly pushing an Open Market for Cable Set-Top Boxes, as reported by Julie Hirschfeld Davis at the New York Times.

Hat tip to CaryGEE.

Saturday, April 16, 2016

New European Union (EU) Data Protection Rules Governing Police Cooperation and Citizens' Digital Rights Passed by the European Parliament as the General Data Protection Regulation (GDPR)

We reproduce here a press release from the European Union Parliament on new rules regarding digital rights, the General Data Protection Regulation (GDPR)  ["REGULATION (EU) 2016/… OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL ... of ... on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)"]

European Parliament PLENARY SESSION Press Release of April 14, 2016
Police cooperation / Citizens' rights / Justice and home afairs

"Data protection reform - Parliament approves new rules fit for the digital era

New EU data protection rules which aim to give citizens back control of their personal data and create a high, uniform level of data protection across the EU fit for the digital era was ["were", sic] given their final approval by MEPs on Thursday. The reform also sets minimum standards on use of data for policing and judicial purposes.

Parliament’s vote ends more than four years of work on a complete overhaul of EU data protection rules. The reform will replace the current data protection directive, dating back to 1995 when the internet was still in its infancy, with a general regulation designed to give citizens more control over their own private information in a digitised world of smartphones, social media, internet banking and global transfers.

"The general data protection regulation makes a high, uniform level of data protection throughout the EU a reality. This is a great success for the European Parliament and a fierce European 'yes' to strong consumer rights and competition in the digital age. Citizens will be able to decide for themselves which personal information they want to share", said Jan Philipp Albrecht (Greens, DE), who steered the legislation through Parliament.

"The regulation will also create clarity for businesses by establishing a single law across the EU. The new law creates confidence, legal certainty and fairer competition", he added.

The new rules include provisions on:
  • a right to be forgotten,
  • "clear and affirmative consent" to the processing of private data by the person concerned,
  • a right to transfer your data to another service provider,
  • the right to know when your data has been hacked,
  • ensuring that privacy policies are explained in clear and understandable language, and
  • stronger enforcement and fines up to 4% of firms' total worldwide annual turnover, as a deterrent to breaking the rules.
New rules on data transfers to ensure smoother police cooperation

The data protection package also includes a directive on data transfers for policing and judicial purposes. It will apply to data transfers across borders within the EU as well as, for the first time, setting minimum standards for data processing for policing purposes within each member state.

The new rules aim to protect individuals, whether victims, criminals or witnesses, by setting out clear rights and limitations on data transfers for the purpose of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including safeguarding against and preventing threats to public security, while at the same time facilitating smoother and more effective cooperation among law enforcement authorities.

"The main problem concerning terrorist attacks and other transnational crimes is that member states’ law enforcement authorities are reluctant to exchange valuable information", said Parliament's lead MEP on the directive Marju Lauristin (S&D, ET)."By setting European standards for information exchange between law enforcement authorities, the data protection directive will become a powerful and useful tool which will help authorities transfer personal data easily and efficiently, at the same time respecting the fundamental right to privacy", she concluded.

More details on the general data protection regulation and the directive in our Q&A here.

Next steps

The regulation will enter into force 20 days after its publication in the EU Official Journal. Its provisions will be directly applicable in all member states two years after this date.

Member states will have two years to transpose the provisions of the directive into national law.

Due to UK and Ireland's special status regarding justice and home affairs legislation, the directive's provisions will only apply in these countries to a limited extent.

Denmark will be able to decide within six months after the final adoption of the directive whether it wants to implement it in its national law.

REF.: 20160407IPR21776
Updated: 14-04-2016 - 16:23"
[this is the snipped end of the press release and what follows is EU Pundit text]

Contact for the press release: Rikke Uldall at the European Parliament Press Service ... please go to this link: the EU original page of the press release.

The European Data Protection Supervisor (EDPS) has a posting about this new Directive at One giant leap for digital rights.

Crossposted at EUPundit.

New LawPundit RSS Feeds: Legal Tech - ABA Journal, European Union – EU Newsroom, Software Smartphones Tablets PCs - Foss Patents, U.S. Supreme Court - ABA, Out-Law News - Pinsent Masons (UK)

Google is dropping its newsreel gadget function from Blogger, so we have replaced it in the right column of LawPundit with the following RSS Feeds (showing that RSS is by no means an outdated technology):
  • Legal Technology - ABA Journal Daily News (USA)
  • European Union – EU Newsroom (EU)
  • Software, Smartphones, Tablets, PCs - Foss Patents (World)
  • U.S. Supreme Court - ABA Journal Daily News (USA)
  • Out-Law News - Pinsent Masons UK)
Click the links in the right column to get the newest news on those topics.

Sunday, April 10, 2016

Can President Obama Now APPOINT Merrick Garland to the Supreme Court Due to Waiver of Advice and Consent by the Senate?

Gregory L. Diskant of Patterson Belknap Webb & Tyler, a member of the national governing board of Common Cause, a former U.S. Supreme Court clerk to then Justice Thurgood Marshall as well as a former clerk to then Judge J. Skelly Wright, U.S. Court of Appeals for the District of Columbia Circuit, and also a former Assistant United States Attorney and Chief Appellate Attorney for the Southern District of New York, has an April 8 "Opinions" posting at the Washington Post titled Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing.

In that posting we are gratified to see Diskant following the same -- we find -- legally inevitable logic that we raised at LawPundit in our March 19 posting titled President Barack Obama's Option to APPOINT a Supreme Court Justice Due to WAIVER of Advice and Consent by the Senate.

We think that top legal minds will identify these same basic arguments when they have studied the applicable Constitutional provision carefully and without any political party influence. We are in fact quite surprised that this obvious option has not been pointed to by even more legal observers, but it is perhaps enabling that someone with the legal standing of Diskant has now done so.

The "push comes to shove" question, however, is whether President Obama has the courage to take this course of action, which places all three branches of government into the Constitutional "separation of powers" limelight as adversaries, an action which could involve considerable and perhaps unnecessary political risk, especially since the present situation is working to the advantage of the Democratic Party who can continuously drum upon this subject to prospective Presidential election voters and point to the irresponsibility of the GOP, who are defying the Constitution of the United States and reducing the highest levels of the country's Judiciary to the status of political puppets beholden to behind-the-scenes personages in Congress.

Nevertheless, a clever President might float this possible course of action "unofficially" to the present eight U.S. Supreme Court Justices via appropriate people in the underground grapevine to see whether he would emerge as the winner if he now appointed Garland to the Supreme Court. If his winning were not absolutely clear in advance, then of course he can forget it, because it is not an action that he could afford to lose, because it might lead to his own impeachment. Hence, he has to know that he will win.

P.S. A Late Addtion -- Hat tip to CaryGEE who informed us that this topic had been discussed for quite some time previous to our own posting.

We then "googled" some related terms today and found that the "waiver" idea had already appeared elsewhere before our own March posting. See e.g. Scott H. Greenfield's Simple Justice: A Criminal Defense Blog and the postings:

Saturday, April 09, 2016

Blazing Fast 5G Networks Will Require Bigger and Better Cloud Infrastructure

5G networks, expected already as early as 2020, will need bigger and better cloud infrastructure. Jim Lyons of NetAppVoice has the story at Forbes in Fast 5G Networks Will Require Flashy Clouds.

Hat tip to CaryGEE.

Donald Trump and The Characteristics of Building Developers

Building developers are reactive and megalomaniacal. Just like Trump. is an insightful opinion piece at the Washington Post by Faroll Hamer.

Hat tip to CaryGEE.

First 18-Rotor Electric Volocopter Manned Flight is Successful

Electric 18-rotor Volocopter makes first manned flight,
as reported at Gizmag by Nick Lavars.

The image above is linked from Gizmag.

Friday, April 08, 2016

Golf Clubs and the Law : Pay Up You Hackers! Of Course, We Mean That in Good Fun, Fore!

A great golf club case involving some legal heavyweights (U.S. Senior District Judge Paul Huck and Third District Court of Appeal Judge Frank Shepherd) has surfaced at Above the Law as reported by Kathryn Rubino in Legal Heavyweights Take Their Case To… Small Claims Court.

It seems that the Riviera Country Club in Coral Gables, Florida, has bylaws which provide "seniors" with certain financial privileges, including freezing the amount of dues payable and freeing the seniors from assessments.

Golf clubs have such provisions of course in order to retain older members, who due to their advancing seniority often use less and less of the golf club services offered, so that an "age" discount can make sense in such a context, even if some seniors play more at an advanced age then when they were younger, due to more free time. As Jack Nicklaus said: "The older you get, the stronger the wind gets; and it's always in your face."

The point in dispute is that the golf club is still charging the seniors with a $75 capital fee per month, which the seniors now claim is a violation of the bylaws, and so the case has gone to a small claims court to be resolved in a friendly manner, the claim asking for a declaratory judgment against the fees.

The sport of Golf is in many places going through some hard times as many club memberships are dwindling and younger generations are turning to other athletic activities. For golf clubs and golf courses, every dollar counts as a matter of paying the bills and staying solvent. We refer here to money issues and the renown Wentworth Golf Club in the UK, now in Chinese ownership.

When the already often more cash-heavy seniors begin to rake in the privileges at the cost of the younger membership -- this is an evil that marks much of American society today, the problem of wealth inequality -- then things must be "reassessed". Traditional golf club "assessments", often levied as lump sums for improvements, appear to us to be in a somewhat different category than "recurring fees" so that this is an interesting case legally.

What RESPONSIBILITY should members have viz. pursue? We are reminded here of a quote (via Ron Furlong, Bleacher Report, 50 Greatest Golf Quotes of All Time) by former Masters champion Bernhard Langer that should put a smile on every jurisprudential face: "Man blames fate for other accidents, but feels personally responsible for a hole in one."

On the importance of keeping Golf on top of the world, Robert Lynd stated: "It is almost impossible to remember how tragic a place this world is when one is playing golf."

We should try to make golf available to MORE, rather than to less, people.

See in this regard How to Join a Private Club, an article by Brett Avery at GolfDigest which discusses the ins and outs of private golf club financing and the money responsibilities that members face.

Of course, we mean this all in good fun out of love for golf, and, for all we know, perhaps these gentlemen play to a scratch handicap, so that the title "hackers" may not apply literally, and indeed it is merely a golf term often thrown by good players at each other in the "benevolent" spirit of the game.

Nevertheless, Golf's financial considerations remain a serious subject,
almost as serious as the game of golf itself.

to which we close with a quotation from Paul Harvey:
"Golf is a game in which you yell 'fore', shoot six and write down five."
Good Night! (to those who remember, and take a look at that link....)

Astronomia Clarity Watch : Jacob&Co Astronomia Gravitational Triple Axis Tourbillon : RobbReport Features 10 Compelling Timepieces from Baselworld 2016

RobbReport presents the Top 10 Most-Compelling Watches from Baselworld 2016 in an article by Victoria Gomelsky.

The image above is linked from the RobbReport slideshow of those 10 watches and shows the "out of this world" (RobbReport description) Jacob&Co "Astronomia Gravitational Triple Axis Tourbillon", a rose gold timepeace encased in transparent sapphire, with a reported price tag of something like $600,000. See the Jacob&Co home page here for a short, spectacular presentation right at start-up.

New Toyota Research Facility to be Built Near University of Michigan Campus at Ann Arbor

According to a posting by Justin King at LeftLaneNews, Toyota to build third US research facility in Ann Arbor, near the University of Michigan campus.

Crossover SUV Supercars Soon to be in Production? Lamborghini Urus, Aston Martin DBX, Rolls Royce Cullinan

Lindsey Bjerregaard at RobbReport covers three new SUV crossover supercar concepts scheduled for production soon: the Aston Martin DBX Concept Car, the Rolls Royce Cullinan and the Lamborghini Urus.

The image above of the Lamborghini Urus is linked from Robb Report.

Thursday, April 07, 2016

New Car Buying Guide from LeftLane

LeftLane has a New Car Buying Guide that we find particularly useful because it is so easy to get a car's specifications, which are often not that easy to find via normal online search, as many automobile web pages concentrate on hype.

For example, we were recently particularly interested in the height of the car because of the need to have a crossover type of vehicle or equivalent SUV or sedan that can be entered easily by seniors. Moreover, we wanted to see all wheel drive vehicles capable of mastering the vagaries of weather. Even data as to head room and leg room can be found at LeftLane, which can be important for taller people. And LeftLane has much more. Take a look.

Image linked from LeftLane. We happened to like this sunset photograph featuring the Jeep Grand Cherokee SRT (see more at this link).

Saturday, April 02, 2016

Announced Changes in Associated Press Stylebook Use Lowercase internet & web to Replace Capitalized Internet & Web Starting June 1, 2016: What About the Spellcheckers!!??

In what web of deceit did you find yourself in yesterday?
This not an April 1 story. We checked the APStylebook at Twitter.

What is really IMPORTANT news?

Changes that we will be living with for years appear to us to fall in this category of importance.

Hence, we thus call attention to Henry Pickavet's piece at TechCrunch on the Associated Press (AP) Stylebook announcement that 'Internet' is to be spelled "internet" (in AP reports and in other sources relying on the Stylebook) as of June 1, 2016, i.e. the heretofore capitalized term "Internet" is to be demoted to a lower case existence in the spelling "internet". The same is to happen to the "Web" of the World Wide Web, which is being downgraded to "web".

For background, see the Wikipedia at Capitalization of "Internet" and Internet.

Living in Germany, we can not fully support the AP in these decisions.

The order-loving Germans know what is important and capitalize ALL nouns. Hence the "Web" and the "Internet" will remain capitalized in Germany.

We presume Microsoft's "Internet Explorer" will remain as is.

We are not sure that reducing capitalized words of meaning to the same level as their original generic term will in any way be helpful to understanding.

Indeed, my Blogger spell-checker has "Internet" as correct so that any lowercase "internet" comes up as a spelling error, and, you know what,
Microsoft Word in its most recent edition also marks "internet" as a spelling error. So the effect of the AP change is more work for us, with NO BENEFIT!!

Dear folks at AP, what foolishness have thou wrought!!??

P.S. Oh Well, I suppose we could just as well write associated press, ap, and stylebook in the future. Does it make a difference?

Friday, April 01, 2016

Quo Vadis Legal Profession? Highly Educated Candidates Enjoy Competitive Advantages in the Legal Services Job Market

Quo vadis legal profession and legal services?

At the New York Times,
Seton Hall Law Prof Michael Simkovic
concludes in his article,
Overall Stagnation in Legal Jobs Hides Underlying Shifts,
that highly educated job candidates in legal services
enjoy a market that is expanding, rather than contracting,
and that this trend marks the economy as a whole.

ABCs of Google Alphabet Transition Difficult

At Wired, Jessi Hempel reports after the first six months that Google’s Alphabet Transition Has Been Tougher Than A-B-C.

Google's Traditional April Fool's Prank Hits Serious Emails and Backfires

Well, we warned you in the previous posting, didn't we?
As usual, we are miles ahead of the pack in anticipating the future.

See CNN Money in
Google's April Fools' prank backfires big time.

We ourselves did not see this prank in action in Gmail, however, so there remains an element of doubt on our side, April 1 being what it is. Did the prank actually exist or is the underlying story, which we also saw reported at TechCrunch, the actual prank? It is not impossible. Who knows? It is in any case a waste of time. The world has better things to do than go fooling.

Accordingly, always regard anything to do with April Fool's Day, especially anything out of the ordinary, with caution. Don't be somebody's fool.

Today is April Fool's Day 2016 : Don't Take Advantage of Anyone : Think Twice So That You are Not Taken Advantage Of : If You Want a Laugh, Make the Joke be on YOU

It is April Fool's Day 2016 today so be on your guard against jokes, pranks, hoaxes and tricks. There are many people around who enjoy a laugh at someone else's expense, so be careful.

Such practices are controversial and we are skeptical about them.

Some people and institutions may be known for complex hoaxes. Look out.

The dangers are that honest difficulties and problems can be interpreted as not being serious in nature, or, that pretended difficulties are taken too seriously, so that someone is harmed in trying to be a good person and do a good thing while following a false lead or hoax.

We ourselves see nothing funny about taking advantage of or making a fool of anyone. Think twice before you act. Are you contributing to making the world a better place?

If you must laugh, make the joke be on YOU, not on someone else.

The best laugh might be to take a vacation today, far from the madding world, in which the weak are already punished 365 days a year. Why make one day even more punishing than the rest?

Celebrate YOUR "strength", if you are the stronger, by doing a GOOD deed.

That would be a real "April Fool's" joke, because few would believe it.