Monday, January 30, 2012

Simple Justice: The Liars' Economy

In the Philippines, lawyer advertising is prohibited. Not so in the highly commercialized culture of the USA and other Western capitalist countries. Shameless is the new bold, so to speak. Read the article below.

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The Liars' Economy

When a person follows me on twitter, I get an email informing me because twitter believes it's important that I know. Rather than insult twitter, I recently decided to open the email and look at their bio. More than half of the time, it informs me that the person is either an "expert" or a "consultant" who is "passionate" about whatever makes them money. I have no clue who the person is, but they want to let others know they're special.

We used to call this sort of conduct "shameless."

A legal marketer whose name eludes me recently wrote that we have a duty to be shameless; "if you don't tell them, how will they know?" Another marketer posted what appears to be a missive under the title, "my meeting with the secretary of state." After some routine puffery, it turns out that the "headline" was a lie, that he tried to meet the secretary of state, but was turned away. His point was about boldness. He shows "chutzpah."

The New York Times ran a story about retailers paying kickbacks to consumers if they wrote positive reviews of their wares.

Some exalt themselves by anonymously posting their own laudatory reviews. Now there is an even simpler approach: offering a refund to customers in exchange for a write-up.
By the time VIP Deals ended its rebate on Amazon.com late last month, its leather case for the Kindle Fire was receiving the sort of acclaim once reserved for the likes of Kim Jong-il. Hundreds of reviewers proclaimed the case a marvel, a delight, exactly what they needed to achieve bliss. And definitely worth five stars.

In Ottawa, Rogers Communications seeks to strike a law, requiring companies to perform "adequate and proper" tests in advance of advertising claims about the performance of a product, as a violation of free expression. It argues that the marketing claims may be absolutely true, but the requirement that they be tested in advance so that they are proven accurate before being disseminated, rather than tested only after being challenged, inhibits freedom.

Walter Olson at Cato writes about New York City Mayor Michael Bloomberg's war against the things he believes to be unhealthy.

But as the New York Times reports, city officials “did not let on that the man shown — whose photo came from a company that supplies stock images to advertising firms and others — was not an amputee and may not have had diabetes.” Instead, they just Photoshopped his leg off, which certainly got the effect they were looking for, albeit at the cost of photographic reality. At an agency developing an ad campaign for a private company, someone might have advised adding a little fine print taking note that the picture was of a model and had been altered, lest the manipulation turn into the story itself, or even attract the interest of federal truth-in-advertising regulators. But the Bloomberg crew probably isn’t worried about the latter, given that their constant stream of hectic propaganda is fueled by generous grants from the federal government itself. Such grants also helped enable a contemplated booze crackdown exposed by the New York Post this month—quickly backed off from after a public outcry—that would have sought to reduce the number of establishments selling alcohol in New York City.

People seem to believe the advertisements without much thought, assuming that the correlation/causation problem must be proven somewhere or they wouldn't say it.

Inexplicably, people still believe that if it's in writing, if it's put out publicly, it must be true. Surely, if it was false, there is some back office somewhere filled with busy elves who would squash it immediately. People aren't allowed to lie, right? It would be scandalous if anyone could say anything to deceive others without recourse.

But there is no back office somewhere filled with busy elves overseeing the accuracy of claims. The mechanism that prevented an economy built on rampant falsehoods and puffery was the fear of being outed as a shameless liar. The mechanism existed within us, as the chance of anyone else calling us out was slim, and only the slightest possibility of being held up for ridicule as a liar was more than sufficient to push the reluctant liar over the edge of truthfulness.

No longer. Shameless is the new Bold. Freed of the constraints of honesty, we rationalize our conduct to justify doing anything it takes to achieve our goals.

One of the premier justifications for the ubiquitous consumer reviews on the internet, whether of lawyers on Avvo or a tchotchke on Amazon, is that it enlightens others. This is only true if they are accurate and honest, but this naive claim was swiftly undermined by those who game the system. We are simultaneously gullible in believing that the information we receive about others is at least reasonably accurate, while pumping out as much puffery as possible about ourselves. All without the slightest bit of shame.

We buy from the best liar, whether it's a gadget case, a refrigerator or a lawyer. It's not really that hard to distinguish the self-aggrandizing liar, yet we can't seem to help ourselves from being attracted to shiny objects and important people.

As despicable as it may be to learn that we've been lied to after buying as thing based on sham reviews, that this same shamelessness has permeated the legal profession is different. Integrity is all we've got, the only justification for our monopoly on the trust given us by clients.

But, you say, everyone else is puffing, lying, scheming and scamming, while you sit there waiting for the phone to ring, with bills to pay and hungry children at home. You say that it takes too long to establish a reputation as a skilled and respected advocate, so you have to create it yourself. You say that creating a few "facts" and omitting a few others can turn you into a rock star. You say the other lawyers are liars, so why should you suffer.

Everyone is a liar today. That's the nature of our economy. That's the nature of our profession.

Not everyone. Granted, it seems that way. Granted, it seems as if the liars are winning the battle, and leaving the honest in the dust. It seems as if no one is terribly bothered by an economy built on lying to each other, as long as we get a piece of the pie for ourselves. There are some of us who won't play this game, and you quietly watch as others studiously ignore us, circumvent us, lies about us and put on their play as if we didn't exist.

But we see you. We see what you are saying and doing. We see that you proclaim yourself an "expert" when you're not. We see that you puff your greatness and have your cousin write a false review to bolster your lie. So what if everyone else is lying through their teeth to make a buck? We're lawyers, and our duty is different than the purveyor of shiny toys or government intent on death to sugary drinks and second hand smoke. What you are selling is your integrity, and you are selling it cheap.

Have you no shame?"

In the GPS Case, Issues of Privacy and Technology - NYTimes.com

In the Philippines, which is known as the texting capital of the world and whose citizens are Facebook and social media addicts, so to speak, very few 4th amendment cases involving modern technology can be found in its jurisprudence books. Thus, I wish to share this latest opinion piece which appeared in the New York Times dwelling on the topic.

"x x x.

OPINION

Privacy, Technology And Law

By BARRY FRIEDMAN

Published: January 28, 2012

REPRINTS

EVERY day, those of us who live in the digital world give little bits of ourselves away. On Facebook and LinkedIn. To servers that store our e-mail, Google searches, online banking and shopping records. Does the fact that so many of us live our lives online mean we have given the government wide-open access to all that information?

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Mark Pernice

The Supreme Court’s decision last week in United States v. Jones presents the disturbing possibility that the answer is yes. In Jones, the court held that long-term GPS surveillance of a suspect’s car violated the Fourth Amendment. The justices’ 9-to-0 decision to protect constitutional liberty from invasive police use of technology was celebrated across the ideological spectrum.

Perhaps too quickly. Jones, along with other recent decisions, may turn the Fourth Amendment into a ticking time bomb, set to self-destruct — and soon — in the face of rapidly emerging technology.

Dog sniffs. Heat sensors. Helicopter flyovers. Are these “searches” within the meaning of the Fourth Amendment? The court has struggled with these questions over the years.

Writing for the court in Jones, Justice Antonin Scalia looked to the 18th century for guidance. In his view, attaching the GPS was the sort of physical invasion of property the framers had in mind when they wrote the Bill of Rights.

Though Justice Samuel A. Alito Jr. agreed that GPS tracking was a search, he ridiculed Justice Scalia for focusing on “conduct that might have provided grounds in 1791 for a suit for trespass to chattels.” For Justice Alito, the risk the GPS posed was loss of privacy, not property. Instead the question was whether long-term GPS tracking violatedtoday’s “reasonable expectations of privacy,” not those of another era. As a matter of existing doctrine, he asked the right question, but when applied to the government, the standard he used could turn our lives into the proverbial open book, and soon.

Focusing on public expectations of privacy means that our rights change when technology does. As Justice Alito blithely said: “New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile.”

But aren’t constitutional rights intended to protect our liberty even when the public accepts “increased convenience or security at the expense of privacy”? Fundamental rights remain fundamental in the face of time and new inventions.

Paradoxically, Justice Scalia’s approach will better protect privacy rights over the long term. (He didn’t deny the importance of today’s expectations; he simply stressed that at the very least, the Fourth Amendment protects rights we had when the framers drafted the Constitution.) Still, his approach is problematic. There isn’t always an available 18th-century analog for current government conduct, like GPS tracking. Justice Alito facetiously suggested that the only 18th-century analog would have been a constable hiding in the back of someone’s carriage. (When Justice Scalia agreed, Justice Alito wryly remarked that “this would have required either a gigantic coach, a very tiny constable, or both.”) And when 18th-century analogs run out, the court is left with its reasonable expectation test.

In a related case, Kyllo v. United States, even Justice Scalia held that police use of a thermal imager to detect marijuana “grow lamps” within a home was a search — but only so long as such technology was “not in general public use.” There’s that time bomb: expanding use of technology narrows rights.

Among the justices in the Jones case, only Sonia Sotomayor insisted that fundamental rights not be hostage to technological change. She called into question the court’s longstanding reliance on expectations of privacy, which she deemed “ill-suited to the digital age.” She suggested reconsidering the rule that the police can, without a warrant, get the vast amounts of information about ourselves that we give to third parties. To her, sharing our secrets — including e-mail and banking histories — with someone else does not necessarily mean the government gets access, too. It is too bad her separate opinion mustered no other votes.

Barry Friedman is a professor at the New York University School of Law and the author of “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.”"

Political but fair | Inquirer Opinion

Prof. Randy David on the true essence of IMPEACHMENT. -

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t is obvious to anyone who has been watching the impeachment trial at the Senate that this is not an event non-lawyers would find easy to comprehend or, even less, feel confident to wade into. Despite the laudable effort of the presiding officer, Senate President Juan Ponce Enrile, to make them less rigid and technical, the proceedings have not been easy to follow. The whole discursive field remains inhospitable to those without any training in courtroom procedure—including, I imagine, a good number of the senatorsthemselves.

That is not how it is meant to be. Impeachment is supposed to be more of a political procedure than a strictly judicial one. That is the reason the power to impeach is lodged in the political branches of government, rather than in the courts. If impeachment were intended to be judicial, then the Constitution would have assigned the task of impeaching a chief justice of the Supreme Court to another court, like the Sandiganbayan. Similarly, the impeachment of a president would be tried not by the Senate but perhaps by the Supreme Court itself.

Part of the confusion may stem from the title that the senators have assumed for the duration of the trial—that of “senator-judges.” I don’t know why they should be called that. (At the impeachment of former USPresident Bill Clinton in 1999, an American senator objected to being referred to by the lawyers as a “juror.” Chief Justice William Rehnquist, who was presiding, sustained him. The word was never used again during the trial.) They are senators, neither jurors nor judges. That being the case, they are not bound by courtroom procedures and standards. The Senate is empowered to draw its own rules to guide the trial, in addition to the parliamentary rules of order they use in their usual deliberations and hearings. The rules of court are meant to be only supplementary.

In what way then is impeachment a political exercise? It is political in the sense that, as a form of discourse (or as a way of seeing and communicating), its goal is to arrive at a policy decision that binds the whole society. In this it is governed by a separate code. Whereas Law is guided by the distinction between legal and illegal, Politics is steered principally by the distinction between majority and minority, and between government and opposition. These two sides of the political divide are supposed to represent competing conceptions of what is good for the nation. That is the essence of politics. Thus, with regard to the on-going impeachment, the political question is: Will the removal from office of Chief Justice Renato Corona be good for the country or not?

The basic mechanism of politics is the vote – the division of the house into majority and minority. If the Senate impeachment court were just another courtroom, then clearly what it should be looking for is proof of guilt beyond reasonable doubt – regardless of what the public may believe. Indeed, there is an explicit norm inside the courtroom to shut out public opinion from the decision-making process. In contrast, the Senate cannot avoid taking into account the public pulse. As representatives of the people, the senators have no choice but to be mindful of what the people need to know so they may form valid opinions on the issues affecting them.

Because impeachment is mainly political, it is understandable that its final outcome tends to be heavily shaped by party affiliation. But, as the American experience shows, senators freely crossed party lines in at least half of the celebrated impeachment trials in which presidents and justices were on the dock. We should expect this even more in a political system like ours where party affiliation is only lightly embraced.

Can a political process, such as an impeachment trial, be conducted in a fair, orderly and sensible way without having to resort to the restrictive conventions of the courtroom? Obviously, the answer is yes. Imagine what would happen if the countless hearings called by the House or Representatives and the Senate were to be conducted strictly in accordance with the rules of court. They would get nowhere. And yet, such hearings need not be chaotic, nor do they need to trample on anyone’s individual rights to get to the facts.

The basic ethic that is supposed to govern parliamentary deliberations is known to every parliamentarian. Courtesy must override passion. Decorum must rein in impulse. Mutual respect must temper arrogance. Above all, the natural advantage enjoyed by parliamentarians as they sit in their chamber must be balanced by the courtesy they extend to non-members who have been invited or allowed to participate in parliamentary proceedings.

It is true that guests must observe proper decorum; they should not argue with their hosts. But, in whatever setting, it is equally bad form to attack or scream at any guest. In this regard, I thought Sen. Miriam Defensor-Santiago, whose interventions have been otherwise useful and sensible, went completely out of bounds when she pounced on Arthur Lim, one of the private prosecutors. Her outburst was unwarranted and did not speak well of her as a senator or as a judge-elect of the International Criminal Court.

Perhaps, it is because politics has been so demeaned in our country that it comes naturally to us to privilege law over politics, judges over politicians, and courts over parliaments. But, politics can redeem itself not by mimicking the courts but by taking its distinct deliberative functions seriously.

* * *

public.lives@gmail.com."

Saturday, January 28, 2012

Aquino acts to decongest prison cells

Manila Standard Today -- Aquino acts to decongest prison cells -- 2012/january/28

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PRESIDENT Benigno Aquino III on Friday ordered the transfer of prisoners who are about to finish serving their sentences to military camps to decongest the National Bilibid Prison in Muntinlupa.

Mr. Aquino said the military camps, including the Philippine Military Academy, will absorb the prisoners as “maintenance workforce.”

The Bilibid prison can hold only 9,000 inmates but now houses more than 20,000. That means each cell that is meant for five people now holds 12 to 13.

“A piece of fish that is supposed to be for one prisoner will be shared by three inmates,” Mr. Aquino said during the launching of the Bureau of Corrections road map on Friday.

“This is why we are looking for a better location for the NBP to transform it into a more effective correctional facility.”

Mr. Aquino said he had also ordered the Justice Department to include data from the bureau in the computerized National Justice Information System database.

“It was brought to my attention that prisoners who have served their sentences and were supposed to have been freed a long time ago remain imprisoned because data on their cases are still in index cards,” Mr. Aquino said.

“These index cards are easily doctored because there is no efficient system and proper coordination among the concerned agencies.”

Mr. Aquino also renewed his pitch for the Bureau of Corrections Modernization Bill to provide more equipment and training to jail guards and wardens. Joyce Pangco Pañares"

Legal services: Psst, wanna buy a law firm? | The Economist

In the Philippines, which is very conservative in its Legal Ethics rules, nonlawyers cannot own a law firm. This is not so in the UK. Read the article below. In the USA, there are states where nonlawyers, e.g. CPAs, may merge with lawyers in one law firm. Australia, too, is becoming more and more creative on the matter. Filipino lawyers, I think, are not yet prepared to go the way of UK, et. al. Even only on the issue of lawyer ads, in the Philippines, the same is prohibited. Only routine business cards and conservative lawyers lists are allowed to promote one's law practice.

"x x x.

LAWYERS have long considered themselves a breed apart: highly educated professionals, not dim-witted businessmen who think a “whereas” is a man who turns into a small member of the horse family when the moon is full. Many countries bar business types from owning even a bit (much less all) of a law firm. But in Britain, that law changed in October.

Companies are queuing up to form new “alternative business structures” (ABS). The Solicitors Regulation Authority, the biggest legal regulator, has received at least 65 applications. The first ABSs should be approved in February.

The “alternative” possibilities are many. Irwin Mitchell, a big personal-injury firm, may float its shares. Slater & Gordon, which in 2007 became the first Australian firm to go public, has since bought some smaller firms and nearly tripled its revenues, to A$182m ($194m).

Another new structure will be that of the Co-operative, a membership organisation best known for its supermarkets, but which also runs a bank and buries and cremates more people than any other entity in Britain. The Co-op already has a legal arm for its members. Approval as an ABS will let it sell the same services to the general public. In anticipation, it plans to add 150 people to its current legal staff of 400.

Liberalisation will make lawyering cheaper, say its boosters. Tech-savvy entrepreneurs may buy or start law firms and offer more services online. Quindell Portfolio, a software-outsourcing company, has said it will seek approval to buy Silverbeck Rymer, a Liverpool-based law firm. Newcomers may be less deferential to tradition, and more innovative. Tony Williams of Jomati, a consultancy, says that if lawyers “insist they’re not a business, they’ll carry on until they’re out of business.”

Many lawyers fear that cheap, off-the-shelf products will replace expert advice.(The nickname “Tesco Law” has stuck, though Tesco, a supermarket chain, has not applied to become an ABS.) Critics of change also fret that taking outside capital might make lawyers favour investors over clients. But lawyers have always cared about making money, and giving duff legal advice is seldom a good business plan.

Liberalisation will probably affect low-end services first, such as will-writing and conveyancing. Britain’s “Magic Circle” of big profitable partnerships (Clifford Chance, Allen & Overy, Linklaters and Freshfields Bruckhaus Deringer) show little interest in being bought—by Tesco or anyone else. But if their new rivals prove capable, they may have to adapt. Some see this. Clifford Chance has had a back office in India for years. Allen & Overy launched one in Belfast last year. Recession-racked clients demand value for money.

Foreigners are watching Britain’s example with interest. Current American law on this issue is like Britain’s used to be. But Jacoby & Meyers, a big personal-injury firm, is suing three states (New York, New Jersey and Connecticut) for the right to raise outside capital. The managing partner, Andrew Finkelstein, has already talked to potential outside partners about buying in, but can go no further unless the rule is overturned. (He has not yet talked to investment bankers about going public, but he says he is interested.) The states are trying to get the suit thrown out on a technicality. Jacoby & Meyers may lose this round. But if Britain’s reform is successful, the American old guard may struggle to win the next one on the merits."

Philippine Laws and Cases - Atty. Manuel J. Laserna Jr.

Related site

Monday, January 30, 2012

Simple Justice: The Liars' Economy

The Liars' Economy

In the GPS Case, Issues of Privacy and Technology - NYTimes.com

OPINION

Privacy, Technology And Law

By BARRY FRIEDMAN

Published: January 28, 2012

Mark Pernice

Political but fair | Inquirer Opinion

Saturday, January 28, 2012

Aquino acts to decongest prison cells

Legal services: Psst, wanna buy a law firm? | The Economist