The Impeachment: Should Chief Justice Renato Corona Testify in his Defense?

Thu, 22 Mar 2012 15:49:05 GMT

Today, 22 March 2012, the defense presented its last witness (former Manila Mayor Lito Atienza) before the Senate, acting as an impeachment court, takes a break. Even before the trial...

Plea Bargains and Effective Assistance of Counsel

Thu, 22 Mar 2012 14:53:18 GMT

Over at Volokh, Orin Kerr takes a look at the US Supreme Court's recent decisions about effective assistance of counsel in the context of plea bargaining. The two cases deal with scenarios that are familiar in the context of legal malpractice cases arising out of civil litigation. In one, Missouri v. Frye, the prosecutor offered a deal for a limited time but the defense counsel failed to communicate the deal on time. The accused claims that he would have accepted the deal. In the other, Lafler v. Cooper, the accused claims that defense counsel offered bad advice about whether to accept the deal or go to trial. Read the post by Kerr and, for that matter, there lots of discussion of these two important cases around the blawgosphere.

Law students interested in London this summer?

Thu, 22 Mar 2012 14:25:00 GMT

London is calling... Applications for the 21st Century Law Practice Summer Program in London (a partnership between Michigan State University Law and the University of Westminister Law) are due March 25 (though if you miss the deadline, email me at rk@law.msu.edu to see if we still have space--as of now a handful of spots remain open). The program runs June 17-July 2, and includes a first-of-its-kind, intensive study of technology, innovation, regulation, entrepreneurship and the international legal marketplace. The two weeks of classes will culminate in LawTechCampLondon, an event bringing together industry innovators, regulators, academics, and students. Apply here.

Protecting Client Files in the Digital Age and Grabbing and Leaving

dave@sctriallaw.com (David) — Thu, 22 Mar 2012 14:12:42 GMT

The allegation is that before he left a former partner used Dropbox and thumbdrives to take copies of 70,000 client files. While understandably the firm is suing him, should the clients be concerned at the apparent ease with which this...

Ex-Juror Who "Friended" Defendant Faces Jail for Bragging on Facebook About Dismissal From Jury Duty

Thu, 22 Mar 2012 14:02:13 GMT

By now, attorneys should know to advise their clients to watch out for Friend requests from jurors during a trial. The latest debacle concerning jurors use of social media involves a juror “friending” a party and then bragging about his resulting dismissal from the panel. For that juror, his Facebook antics landed him a three-day jail sentence. Click here and here for additional coverage regarding this incident.

Back in December, a Florida man serving jury duty sent a Friend request to the defendant. The defendant told her attorney about the request, and Circuit Judge Nancy Donnellan dismissed the juror and admonished him for his actions. But, the story doesn’t end there.

After his dismissal, the ex-juror took to his Facebook page again. This time, he posted a comment: “Score . . . I got dismissed!! [A]pparently they frown upon sending a friend request to the defendant . . . haha.” Unfortunately for the ex-juror, court officials became aware of the post, leading Judge Donnellan to call the ex-juror back into Court to face criminal contempt charges. At the end of a two-hour hearing, Judge Donnellan commented, “I cannot think of a more insidious threat to the erosion of democracy than citizens who do not care.” She sentenced the ex-juror to three days in jail, and he was led from the courtroom in handcuffs.

This is just another example of social media impacting judicial proceedings. (For recent blog posts on this issue, click here.) As the attorney for the plaintiff in this case commented, “it was a very big deal” to his client “who had $48,000 in medical bills on the line,” and if the female defendant had, for example, responded to the Friend request and went on a date with the juror, perhaps the juror would have found in her favor.

In light of these missteps, attorneys must be keen to clients’ Facebook page and activity and should consider monitoring the Facebook pages of the defendant and any jurors -- especially any juror who has been dismissed for the improper use of social media.

Jennifer Marino Thibodaux is an Associate on the Gibbons E-Discovery Task Force.

Marketing & IT: A Profitable Marriage

mbay@alm.com (Monica Bay ) — Thu, 22 Mar 2012 13:49:24 GMT

Cooperation and collaboration were key themes of a Friday [March 16] panel at the Legal Marketing Association's annual conference, held this year in Dallas. The panelists on "Marketing & IT? You Can't Have One Without the Other" explored how to create a partnership between the two law firm units that too often treat each other as adversaries. The lively panel included two pairs of CIO/marketers who literally work across the street from each other in Cleveland: CIO Sam Shipley and director of marketing Alexis Dankovich (far right), of Ulmer & Berne; and CIO Karen Anzuini (middle) and senior marketing communications manager Julie Gurney (far left), of Benesch. I served as moderator of the panel, which drew about 100 attendees on the final day of the annual marketing conference. Benesch has seven offices and 180 attorneys; Ulmer the same number of attorneys and four offices. The proximity of the Cleveland offices was obviously a significant help for panel presentation; the four speakers obviously did their homework (and rehearsals) far better than most panelists at most conferences -- and the result was a smoothly integrated and highly interactive presentation. They engaged the audience with a clever introduction comparing how marketing and IT...

Cooperation and collaboration were key themes of a Friday [March 16] panel at the Legal Marketing Association's annual conference, held this year in Dallas. The panelists on "Marketing & IT? You Can't Have One Without the Other" explored how to create a partnership between the two law firm units that too often treat each other as adversaries.

The lively panel included two pairs of CIO/marketers who literally work across the street from each other in Cleveland: CIO Sam Shipley and director of marketing Alexis Dankovich (far right), of Ulmer & Berne; and CIO Karen Anzuini (middle) and senior marketing communications manager Julie Gurney (far left), of Benesch. I served as moderator of the panel, which drew about 100 attendees on the final day of the annual marketing conference.

Benesch has seven offices and 180 attorneys; Ulmer the same number of attorneys and four offices.

The proximity of the Cleveland offices was obviously a significant help for panel presentation; the four speakers obviously did their homework (and rehearsals) far better than most panelists at most conferences -- and the result was a smoothly integrated and highly interactive presentation.

They engaged the audience with a clever introduction comparing how marketing and IT "hear" proposed projects -- such as when marketing says it wants to do "blast" emails and client alerts, IT immediately assumes the entire firm's email will be blacklisted by every recipient; or when marketing wants to upgrade the firm's branding, IT panics over all the changes that will have to be made to templates, letterheads, etc.

The key to success, said the panelists, is to define and focus on the goals of the firm's "internal clients." Focus on the opportunities, and don't fight over who is going to get credit for the project. By collaborating, marketing and IT can identify and prioritize projects, to help them "grow into business" and enhance the firm's client engagements.

This approach, the panel suggested, also helps both the marketers and IT staff to be perceived as valuable contributors helping the firm reach its goals.

Among the takeaway:

* IT and marketing should review their budgets together before submitting to upper management, especial big budget items.

* Establish quarterly meetings between IT and marketing.

* Agree to project plans and timing.

* IT should turn to marketing as early adopters of new technology; they can help evangelize the initiative within the firm.

* Involve IT early in project planning, when defining objectives and scope.

Among projects that will benefit from IT/marketing collaboration:

* Developing applications for mobile devices

* Practice Group business development tools

* Business intelligence

* Legal project management.

* Using QR codes (that users directly to websites) to distribute information at conferences, etc.

Case Studies

The Benesch team discussed how it developed "Apportunity," a recruiting app, after being inspired when Anzuini was handed an iPad to choose her wine at a restaurant.The app uses push notifications to alert job seekers when new Benesch jobs are posted.

Shipley discussed how Ulmer created an add-on to its Cole Valley Software ContactEase client relationship management system, to help the firm increase the speed of its "realization" (accounts receiveable). When an attorney is on the phone with a client, his or her computer screen will instantly show the AR balance and past due amount, allowing the lawyer to remind the client to send a check. Read more about this project in our expanded story on the Law Technology News website, here.

Images: Monica Bay

140 Law - Legal Headlines for Thursday, March 22, 2012

Thu, 22 Mar 2012 13:47:22 GMT

Here are the leading legal headlines from Wise Law on Twitter for Thursday, March 22, 2012:

- Rachel Spence, Law Clerk

Visit our Toronto Law Firm website: www.wiselaw.net

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US Supreme Court Patent Case on Laws of Nature

slaw.admin@gmail.com (Simon Fodden) — Thu, 22 Mar 2012 13:21:13 GMT

One of the satisfying moments that recurred regularly in Star Trek, the Next Generation, was Captain Jean-Luc Picard's simple executive gesture and the words, "Make it so." A lot of magic thinking was bound up with that. The United States Supreme Court, however, has recently told attorneys that no such wishful assertion can be as effective, at least in the universe where human laws intersect with the laws of nature.

Two days ago the court released the decision in Mayo Collaborative Services et al. v. Prometheus Laboratories, Inc. No. 10–1150. The following is from the headnote:

Although “laws of
… [more]

Two days ago the court released the decision in Mayo Collaborative Services et al. v. Prometheus Laboratories, Inc. No. 10–1150. The following is from the headnote:

Although “laws of nature, natural phenomena, and abstract ideas” are not patentable subject matter under §101 of the Patent Act, Diamond v. Diehr, 450 U. S. 175, 185, “an application of a law of nature . . . to a known structure or process may [deserve] patent protection,” id., at 187. But to transform an unpatentable law of nature into a patent-eligible application of such a law, a patent must do more than simply state the law of nature while adding the words “apply it.” See, e.g., Gottschalk v. Benson, 409 U. S. 63, 71–72. It must limit its reach to a particular, inventive application of the law.

In essence, Prometheus had described a process whereby a drug dosage was to be determined upon the levels of "certain metabolites" in a patient's blood, and, of course, these levels are a function of the "laws of nature." The process following the determination of these levels as described by Prometheus was simply a well-known routine for physicians to follow and an insufficiently "inventive concept" to transmute a law of nature into a patentable process.

As Justice Breyer, who delivered the opinion of the court, said:

If a law of nature is not patentable, then neither is a process reciting a law of nature, unless that process has additional features that provide practical assurance that the process is more than a drafting effort designed to monopolize the law of nature itself. A patent, for example, could not simply recite a law of nature and then add the instruction “apply the law.” Einstein, we assume, could not have patented his famous law by claiming a process consisting of simply telling linear accelerator operators to refer to the law to determine how much energy an amount of mass has produced (or vice versa). Nor could Archimedes have secured a patent for his famous principle of flotation by claiming a process consisting of simply telling boat builders to refer to that principle in order to determine whether an object will float.

Update: Effective Date for New EAS Rules - April 23, 2012

Thu, 22 Mar 2012 13:16:33 GMT

As we reported last month, in January the Commission released its Fifth Report and Order (5th R&O) in its long-running proceeding aimed at modernizing the Emergency Alert System. The 5th R&O has now been published in the Federal Register, which establishes the effective date for the new rules. And that effective date is (drum roll, please) . . . April 23, 2012. If you and your engineering staff haven’t focused on whether your current facilities conform to the standards set out in the 5th R&O, the countdown has now started and time’s a-wastin’. (The deadline for having CAP-compliant equipment remains June 30, 2012.)

Note that several of the amended rules will still not kick in on the April 23 effective date. That’s because they entail some form of “information collection”, which requires that they be run through the Paperwork Reduction Act drill. According to the Federal Register notice, the particular rules whose effectiveness is temporarily PRA-deferred are Sections 11.21(a), 11.33(a)(4), 11.41(b), 11.42, 11.54(b)(13) and 11.55. Section 11.21(a) relates to the contents of State Plans. Section 11.33(a)(4) sets standards for the display and logging of SAME and CAP messages. Section 11.55 spells out EAS operation during state or local emergencies. With respect to Sections 11.41(b), 11.42 and 11.54(b)(13), there seems to be some confusion. The 5th R&O appears to delete Sections 11.41(b) and 11.42, so it’s not clear why they would be subject to any PRA review. Ditto for Section 11.54(b)(13), although, in addition to deleting that specific subsection, the 5th R&O then recodifies its contents as 11.54(a)(3). Presumably this will all get straightened out eventually.

Gene Patents and Myriad in Light of Prometheus - The Big View, and Comments from Biotech Patent Lawyers on Prometheus, and Myriad

khartley@cdglawyers.com (Kirk Hartley) — Thu, 22 Mar 2012 13:14:44 GMT

Biotech patent bloggers are starting to weigh in on the Prometheus decision rejecting a claim to a patent for providing medical advice. The Genomics Law Report includes thoughtful commentary and concludes - I'd say - that Myriad's patent claims are dead in terms of any ability to exclude others from sequencing genes and providing answers to patients. On the other hand, the post at Patent Docs is a disappointment as it rants against Justice Breyer in particular, and flogs the entire Court for not deferring to the purported analytic wisdom of the Federal Circuit's majority view derived from patent-think.

In short, as indicated by my post yesterday, I'd say: Bravo for the Court. It rejected narrow "patent- think" and instead addressed the subject from the proper perspective: patent law is subject to broader constitutional principles, and patent law ultimately will be counter-productive if it impedes scientific progress. Justice Robert is famed for wanting to provide certainty to business, and it seems plain the Court's message in Prometheus is that it will not sustain patents that are simply statements of medical/scientific conclusions following from factual analysis. Accordingly, the logical outcome is that patents will not be allowed to stop gene sequencing (analysis of facts about something inside a body) and reporting to persons the conclusion on whether they have one or more genetic mutations of potential medical importance.

Overall, It should be obvious that there are huge differences between awarding patents for creating new machines or new creatures, as contrasted against awarding patents for reporting on the medical/scientific conclusion that follows from using well-known scientific rules to analyze facts about conditions inside a person's body. But the Federal Circuit could not "get" that obvious distinction. Happily, that's why the views of that specialty court are subject to review by a Supreme Court comprised of judges who do not spend all day thinking through the lens of patent law, and instead bring to bear a broader view of the constitution, science and the world.

Computers are a Breeze Compared to Home Theater Systems

Thu, 22 Mar 2012 13:03:30 GMT

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Okay, so I’ve deeply involved in computer technology since the mid-70′s – for the most part, I get it at a level that lets me help my clients. But when it comes to home theater, I feel like a true naif, a digital babe in the woods, standing slack-jawed and baffled at the back of a new “receiver” (strange that we call it that still, isn’t it?) and its panoply of connections. The only things that make me feel comfortable, by the way, are the only two really familiar connections: ethernet and USB.

The New York Times comes to the rescue, at least a little, with this article which is a lucid and clear exposition of all the various connector types. It’s not a comprehensive home theater Ph.D study program. Rather, it’s a good place to start. Thanks NYT.

Also, a quick tip. Most modern home theater receivers can connect to your home network. Most, however, want to do this via a hard-wired Ethernet cable. Great, except for the fact that your router/switch might be in another part of your home and not exactly in a convenient place to run a long CAT 5e cable. Many receivers do support having a WiFi adapter attached, but generally want to sell you their own high-priced branded adapter, with the less than subtle implication that it won’t work unless you use their over-priced gadget.

A better approach is using ANY WiFi gaming adapter. While normally used to connect Wiis and Xboxes to WiFi networks, these will work perfectly with home theater receivers. So instead of Pioneer’s $150 WiFi adapter for my home theater receiver, I opted for an ioGear Universal Gaming adapter for $35 from Amazon – worked immediately (literally a press of its WPS button while pressing the WPS button on my WiFi router was all it took).

Also, I think I’ve blogged about this before, but you absolutely don’t need insanely over-priced HDMI cables from your local big-box retailer. They LOVE to pad their profits with $30-$100 cables. Not when you can get perfectly adequate HDMI cables for about $4 from sources like this.

Once you’ve digested the NYT’s connection basics, then home theater basics sites abound – here’s a good example. And of course, there’s always Home Theater for Dummies, which in usual “dummies” fashion, is a solid reference guide in plain language.

Oh, and of course you can either buy a long VGA cable or a long HDMI cable to plug in your laptop to work on that mega-70″ HDTV sitting in your living room – there’s the convergence factor, along with your TV and receiver connecting to your WiFi network to stream your PC and Mac content, connect to internet radio, stream your Pandora channels and of course, single-tap connection to your iPads, iPhones and iPod Touches via Apple Airplay. And then the ability to control your DirecTV (or other) tuner and your home theater system with iPad or Android apps.

So caveat emptor in the home theater world is the order of the day. And as always, it’s just a matter of reading, learning and plugging things in. If they don’t work the first time, plug ‘em in somewhere else until you get a picture and sound :-)

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Hot Topics for SEC Exams

doug@dougcornelius.com (Doug Cornelius) — Thu, 22 Mar 2012 12:00:44 GMT

As part of the SEC’s new National Exam Program Overview, OCIE highlights six areas of focus for Investment Advisers: “[T]he Program has identified specific strategic areas on which to focus when examining firms…. In FY2012, focus areas include the following priorities, among others: Complex Entities. Staff will examine for the risks and practices associated with [...]

As part of the SEC’s new National Exam Program Overview, OCIE highlights six areas of focus for Investment Advisers:

“[T]he Program has identified specific strategic areas on which to focus when examining firms…. In FY2012, focus areas include the following priorities, among others:

Complex Entities. Staff will examine for the risks and practices associated with the SEC’s rapidly growing complex registrant population. Review areas may include:

(i) Newly registered, private fund advisers that may be unfamiliar with the Federal securities laws.

(ii) Complex relationships in the private equity space.

(iii)Model risk of quantitative investment decision, order routing, and trade execution models utilized by various industry participants.

Sales Practice of New or Risky Products. The staff will review for the sale or recommendation of inappropriate investments by advisers. Among the areas of concern:

(i) The retailization of complex investments and smaller, niche-type products (e.g., structured products, reverse convertibles bonds, alternative mutual funds, leveraged ETFs).

(ii) Aggressive marketing of retirement/senior products and investments marketed as being “safe.”

(iii)Portfolio management activities that may increase the risk of investor loss or harm.

(iv) Lack of due diligence performed on underlying investment vehicles/managers and any undisclosed conflicts and/or fee arrangements.

(v) Valuation practices and any conflicts that exist in the pricing process.

Fund Governance. The NEP will evaluate practices or oversight weaknesses that may increase the risk of shareholder loss or harm, such as:

(i) Mutual funds investing in a manner that is inconsistent with fund disclosures or engaging in activities that may pose higher risk.

(ii) Directors failing to satisfy fiduciary duties.

(iii) Systemic compliance breaches and processing issues that may have a significant impact on fund investors.

Compliance, Supervision, and Risk Management. The NEP will assess the appropriateness of compliance programs and risk management processes relative to business operations to identify potential weaknesses that raise investor protection concerns, such as:

(i) Effects of cost-cutting, mergers and acquisitions, and aggressive business strategies to make up for losses and revenue cuts.

(ii) Lack of oversight of outside business activities and weak compliance of remote locations, branch offices, and independent contractor representatives.

(iii)Dual and affiliated registrants transitioning broker-dealer customers into advisory clients.

(iv) Ineffective compliance and risk management with respect to complex investments and/or investment strategies.

Fraudulent Activities/Safety of Assets. The NEP continues its initiative to identify fraudulent, abusive, and manipulative activities surrounding the safety of client assets. Areas of focus include:

(i) Custody arrangements that increase the potential for misappropriation of assets.

(ii) Ponzi schemes or ponzi-like schemes.

(iii)Manipulative activity, such as front-running and insider trading.

(iv) Cyber security risks associated with malicious hacking and fraudulent schemes.

Performance and Advertising. The NEP will assess performance characteristics and marketing practices that have been associated with an increased risk of misrepresentations and investor harm. For example:

(i) Aberrational performance that may be indicative of abusive valuation.

(ii) The use of solicitors to attract new clients, particularly when non-cash compensation is used by advisers.

More Things You Cannot Do On a Plane

khartley@cdglawyers.com (Kirk Hartley) — Thu, 22 Mar 2012 11:36:37 GMT

The humor just rolls on in the law - it's now taken us up to the 15th installment of "Things You Cannot Do on a Plane ! Prior here.

Alumni

Thu, 22 Mar 2012 11:00:03 GMT

What constitutes alumni at a law firm? Does your firm have a program? Is it inclusive or exclusive? Should your firm develop an alumni program?

This is one of the few area’s in the practice of law where when asked “what are other firms doing” there is very little consistency. Some firms offer use of office space, have on-line portals that include useful materials or simply offer an annual receptions. Others would prefer that their alumni never existed.

There are a number of dividends to building an alumni program including:

Goodwill.… [more] Those who have left will have another reason to

What constitutes alumni at a law firm? Does your firm have a program? Is it inclusive or exclusive? Should your firm develop an alumni program?

There are a number of dividends to building an alumni program including:

Goodwill. Those who have left will have another reason to think positively about their experiences with you. In addition, those who are currently employed at your firm will be impressed that you handle departures in a positive manner.
Networking. Staying in touch with the alumni provides you with an opportunity to broaden your list of networking connections.
Business development. Provides an opportunity to add to business development connections, particularly if alumni have moved in-house or to firms that might serve as referral sources.
Sources for referring out work. You know their work and may feel comfortable referring clients to them.
Marketplace information. By creating a greater network, you have a wider base of knowledge regarding the marketplace.
Feedback. Based on their own experiences in your firm, former employees may provide constructive feedback that can be used to improve client services, internal procedures or workplace satisfaction within the firm.
A selling point to new hires. New hires know that staying at one firm for the long-term is unlikely. Firms that place a premium on maintaining mutually beneficial relationships over the course of a career is a benefit.
A source of new recruits. Reduce recruiting costs by alerting alumni to openings in your firm. Positive relationships with former employees will make them comfortable recommending friends and colleagues.

One of the first things to decide when creating an alumni program is how the term “alumni” will be defined. The most common definitions are:

lawyers who worked at the firm for more than a certain number of years
lawyer that has worked at the firm at any time
articling students
support staff
combination of above

Defining alumni for you firm will be highly debated and even once it has been defined people will try to circumvent the program by including or excluding individuals. Unfortunately people will find out and will talk when this happens.

Once you decide on how alumni are defined by your firm, the next step is to develop a program that will entice them to participate. Alumni programs are a form or marketing and business development as such your marketing department should participate in the program development. Your firms’ executive committee must be on board to promote the program and human resources is required to support it. The program should be developed and managed as any other client/prospect program with a defined focus and goal.

Ottawa Foregoes Bold Vision on Telecom

mgeist@uottawa.ca (Michael Geist) — Thu, 22 Mar 2012 07:26:34 GMT

After months of delay, Industry Minister Christian Paradis unveiled the government's telecom strategy last week, setting out the details of the forthcoming spectrum auction and tinkering with longstanding foreign ownership restrictions. Spectrum allocation and auctions, which focus on the availability of frequencies used to provide wireless services, involves fairly technical questions that few outside the industry follow closely. Yet the impact of spectrum policy has far reaching effects on consumers, since the right policies can foster greater competition, better services, and lower prices.

While the headlines have focused on changes to the foreign ownership rules, my weekly technology law column (Toronto Star version, homepage version) echoes my initial post on the decision by arguing the government's policy choices are rather timid.

Its strategy to facilitate greater telecom competition focuses on two key issues. First, it opts for a spectrum cap that will limit the amount of the best "beachfront" spectrum any single company may hold. When combined with a use-it-or-lost-it requirement that should guard against carriers hoarding spectrum without using it, the policy is designed to ensure that every market in Canada has at least one major wireless carrier not named Bell, Telus, or Rogers.

Second, the government has opened the door to increased foreign investment. The current foreign investment restrictions will be lifted for any carrier with less than ten per cent market share (effectively anyone other than the big three). Restrictions remain in place for broadcasters and broadcast distribution companies. The move will put to rest the controversy over Globalive that dogged the last spectrum auction, when questions arose as to whether it fully complied with foreign ownership restrictions.

After heavy lobbying from all stakeholders, the government's policy choices reflect a desire for compromise. For example, the choice of a spectrum cap falls between the set-aside demanded by smaller players and the fully open auction favoured by the incumbents.

The primary goal appears to be the creation of a strong, fourth carrier in the market. The spectrum caps and foreign ownership changes are both geared toward giving a fourth player the necessary spectrum and access to capital to compete with Bell, Telus and Rogers. That suggests consolidation of the current smaller players in the hope of a single, stronger competitor - possibly foreign owned - challenging the incumbents.

With the proposed approach, large international players such as Verizon or Deutsche Telecom will be limited to buying up (or investing in) smaller Canadian companies with a long-term vision of building market share. Had the government fully liberalized the market, those telecom giants could have considered strategic investments in the big three and caused a far bigger shift in the competitive environment.

The chief barrier to the complete removal of foreign ownership restrictions is presumably concerns over the cultural policy implications of opening the broadcast sector to greater foreign ownership. Many observers appear to assume that Canadian ownership and content requirements go hand-in-hand, fearing that a foreign owned broadcaster would be less likely to comply with Canadian content requirements. Yet there is little reason to believe this to be so.

Foreign owned businesses regularly face Canadian-specific regulations and there is little evidence that Canadian businesses are more likely to comply with the law than foreign operators. Cultural businesses may raise particular sensitivities, but broadcasters dependent upon licensing from a national regulator can ill-afford to put that licence at risk by violating its terms or national law.

The government could have shaken up the Canadian market by removing telecom foreign ownership restrictions altogether and considered dropping foreign ownership limits on broadcasters as well. The Paradis incremental, go-safe approach might make for good politics, but passing on a bolder vision is a lost opportunity.

KLA-Tencor GC implements "Values in Action" for business ethics

Thu, 22 Mar 2012 04:01:16 GMT

An interesting approach from a high-tech GC, Brian Martin at KLA-Tencor, who writes the Ethical Insights column for InsideCounsel Magazine. [Martin] has transformed Milpitas-based KLA-Tencor’s standards of business conduct under a program called Values in Action. It includes full-day training...

An interesting approach from a high-tech GC, Brian Martin at KLA-Tencor, who writes the Ethical Insights column for InsideCounsel Magazine.

[Martin] has transformed Milpitas-based KLA-Tencor’s standards of business conduct under a program called Values in Action. It includes full-day training sessions, a legal intranet site and employee surveys.

Using games to educate and solve problems: Playing with conflict and brains

stephanie@idealawg.com (Stephanie West Allen) — Thu, 22 Mar 2012 03:42:45 GMT

Over the years, the decades, I have been time after time convinced of the value of games to teach, and so recently have been researching game design. I want to create my own educational games. The topic is wide-ranging and opinions on every aspect, even the definition of game, are many. Unfortunately the number of books and articles on the...

Do you think fast or slow? Typically most of us are fast most of the day

stephanie@idealawg.com (Stephanie West Allen) — Thu, 22 Mar 2012 03:41:06 GMT

That I have not yet mentioned one of last year's books is surprising. I thought I had recommended it to you, but noticed this evening that I haven't. It was for me a must-read, so my omission is not minor. Below I link to an interview of its author Dr. Daniel Kahneman which may help you decide if you want...

Who else’s vocabulary includes “ossature”?

raymond.ward@gmail.com (Raymond Ward) — Thu, 22 Mar 2012 01:00:38 GMT

West’s headnote of the day: Even during appellate review of a dismissal for failure to state a claim, which takes place under a set of plaintiff-friendly guidelines, the reviewing court cannot be expected to do counsel's work, create the ossature...

West’s headnote of the day:

Even during appellate review of a dismissal for failure to state a claim, which takes place under a set of plaintiff-friendly guidelines, the reviewing court cannot be expected to do counsel's work, create the ossature for the argument, and put flesh on its bones.
Redondo-Borges v. U.S. Dept. of Hous. & Urban Dev., 421 F.3d 1 (1st Cir. 2005).

Without looking up the case, I’m guessing it’s written by Judge Selya. Ossature is a dead giveaway.

Europe's take on the World Radio Conference

Thu, 22 Mar 2012 01:00:02 GMT

The World Radiocommunication Conference finished in Geneva in mid-February, after four laborious weeks of debate among more than 3,000 participants from over 150 countries. Now the job comes of interpreting what was decided at the WRC-12 and how it affects different sectors. Participants and officials were looking at these issues in Brussels in the last few weeks.

On February 29, the Radio Spectrum Policy Group (RSPG) received a briefing in Brussels on the European perspective. Steve Bond, the Co-Chair of the CEPT Conference Preparatory Group (CPG) gave an overview of the results. The CEPT is the European Conference of Post and Telecoms, representing 48 European countries. It was responsible for preparing European Common Positions defended at WRC-12. Bond said that the CEPT’s main objectives were met at the conference and its results also were in line with key EU interests.

The RSPG Chairman's report of this briefing was posted on March 19. It identifies the most controversial and unexpected result of WRC-12, coming from “the proposal by African and Arab states to co-allocate the 700 MHz band to mobile communications.” The CEPT unanimously opposed this “extended digital dividend” to no avail in the face of a united position from the African and Arab countries. European broadcasters were expecting some push by mobile providers to gain access to that spectrum, currently set aside for television, but they had no idea that the Southern part of ITU Region 1 would push so hard to open up the band.

The result is that the 700 MHz band will be opened for mobile providers in 2015, after WRC-15, subject to technical studies. The RSPG report underplays the WRC-12 decision by arguing that “this result does not impose a particular approach to the EU at the moment.” Of course it does not, because it only comes into effect in three years, but the broadcasters are exceedingly unhappy about this turn of events. The mobile sector can hardly believe its luck, and the report says that this matter was “one of the hot topics at the World Mobile Conference in Barcelona earlier in the week.”

By contrast, the Europeans were happy with the new allocation at 5 GHz for Unmanned Aircraft Systems (UAS), because it provides for a safe sub-band uplink for the European Galileo global positioning satellite system. The agenda item on Aeronautical Mobile Satellite Services (AMSS) was called a “difficult topic” but one for which a solution was found. “By and large, the results in the area of scientific use are good (e.g. protection of earth observation in 80 and 90 GHz),” according to the RSPG summary.

The CEPT produced a report on the overall WRC-12 results, which is posted on the RSPG website. The report is more detailed than the Chairman's summary, and refers to results affecting satellite, transport and scientific uses.

The European Commission representative at the RSPG meeting said that it needs to “digest” the results of WRC-12 but plans to issue a staff paper in a matter of weeks. It plans to assess these results against the European spectrum inventory that must be conducted under the recently approved Radio Spectrum Policy Programme, issued officially on March 21.

Despite the claim that the 700 MHz issue establishes no immediate obligations, the Europeans seem to be taking this WRC-12 result most seriously. The RSPG Chairman concluded the discussion by announcing that he will convene a “strategic debate” on this issue at the next RSPG meeting in early June.

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