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Archive for March 3rd, 2010


Tech Talk

Published March 3rd, 2010 in Uncategorized | 4 Comments »

Friedman describes an efficient rule as a rule where “total gains [are] larger than total losses, making the net effect positive.” This applies to any type of law– be it criminal, tort, or patent law. I’m sure many of you have read about the patent dispute between Apple and HTC. This article discusses the possible inefficiencies if Apple wins the case. The article mentions Apple’s “legal temper tantrum” over “HTC’s alleged infringement on up to 20 Apple patents,” with emphasis on the multi-touch-interface patent. I believe patents are crucial for innovation, because if Apple didn’t have a patent on its multi-touch, what incentives would Apple have to spend millions or billions on R&D? But what happens when patents deter competition and innovation? In that instance, I think some things must be adjusted.

Eric Von Hippel, a professor at the Sloan School of Management, said it best: “It’s a bad scene right now. The social value of patents was supposed to be to encourage innovation — that’s what society gets out of it.  The net effect is that they decrease innovation, and in the end, the public loses out.”

I am a happy iPhone user, but I am pleased to know companies like HTC with Google Android are competing with the iPhone. This competition forces Apple to innovate more and charge a lower price, which is better for me! If HTC is shut down because of this, I will be a less happy iPhone user in the future.

Is America a democracy?

Published March 3rd, 2010 in Uncategorized | 1 Comment »

Ahhh, confusion. Spurred by well meaning patriots, whose motives and actions I admire. BUt arguing about whether the U.S. is a democracy or a republic is just silly. James Madison invented the distinction out of whole cloth. The Greeks said “democracy” and those using Latin said “republic” to describe THE SAME THING–popular government. Popular government means the kind of government where the people–the popolo– have the right to participate in the government to a greater or lesser extent. To quote Robert Dahl in his book On Democracy, “You might wonder whether democracy and republic refer to fundamentally different types of constitutional systems. Or instead do the two words just reflect differences in the languages from which they came?” He goes on, “This distinction had no basis in prior history (prior to Madison): neither in Rome nor, for example in Venice … Indeed, the earlier republics all pretty much fit into Madison’s definition of a ‘democracy.’ What is more the two terms were used interchangeably in the United States during the eighteenth century.”

Remember that the classical example of democracy was Athens, a city state where membership in the polis was restricted to an aristocracy supported by slaves and Helots–hardly what we migth call a popular government today.

Dahl concludes that “the plain fact is that the words democracy and republic did not (despite Madison) designate differences in types of popular government. What they reflected, at the cost of later confusion, was a difference between Greek and Latin, the languages from which they came.”

Popular government=republic=democracy in the general sense. Technically, Madisonally, they can be differentiated, but so what.

And Now for Something Completely … Different

Published March 3rd, 2010 in Uncategorized | No Comments »

The Associated Press is reporting today about a case being heard before the Supreme Court regarding a tort claim filed against government doctors working for Immigration and Customs Enforcement. The negligence claim arises after the death of 36 year old Francisco Castaneda, an illegal immigrant from El Salvador. Castenda apparently when untreated for penile cancer (yeah, penile cancer … ouch!) while he was being held by I.C.E and later died as the cancer spread throughout his body.  

 This is an extremely odd claim not only because was filed on behalf of an illegal immigrant being held by a federal law enforcement agency, but the highcourt seems to be questioning the legality of the suit with respect to exactly who the tortfeasor is in this case. The basic question being, can the complainant file suit against the doctors individually, or should the suit name the federal government instead. Castaneda’s attorney, Conal Doyle explains: 

“The United States has admitted liability in this case. They’ve admitted their negligence caused his death. And so the only issue really is whether we can pursue these individual claims against the actual medical personnel who cared for him individually,”

Well its not the ONLY issue. First you have the issue that Doyle describes, a federal shield law that would absolve the doctor’s from any liablity in the case. Can anyone say perverse incentives? There is also the issue of a California state statute (that’s where the claim was filed) that would cap any damages awarded to the Castaneda family at $250,000. It’s hard to say what exactly this man’s life could be appraised for given his criminal background and status as an illegal alien. But there is also the issue of if that should be the standard for awarding damages, given the fact that the claim is not one of wrongful death but one of negligence. Finally, the elephant in the room in this story, no doubt, has to be Casteneda’s citizenship status as an illegal immigrant. Should he even have the right to file suit against anyone, let alone the federal government? What do you think?