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LAW PUNDIT Sunday, September 24, 2006 9/24/2006 07:31:00 PM [Home] [Print]

Who Visits LawPundit? - World Stats
 

Sometime during this week,
our five major websites will top 200,000 visits for the year 2006,
with LawPundit leading the list.

The five major websites are:

LawPundit.com
Megaliths.net
LexiLine.com
AndisKaulins.com
StarsStonesScholars.com

The LawPundit Blog is the main feature of LawPundit.com.
Megaliths.net presents our decipherment of the megaliths as astronomy.
LexiLine.com understands itself as "a Renaissance in Learning", challenging many mainstream paradigms which do not stand up to evidentiary scrutiny.
AndisKaulins.com contains our personal home pages.
StarsStonesScholars.com is the website for our book, Stars Stones and Scholars: The Decipherment of the Megaliths as an Ancient Survey of the Earth by Astronomy.

According to our web hoster's traffic statistics, our visitors thus far this year came from the following geographic domain locations (the most frequent is listed first). Our hoster can not determine with certainty the geographic origin of the domain visitor for more than half of the visits since these are .com, .net and .edu domains, but most of these, of course, are found in the United States):

Visitor Rank - Domain (abbr.) - Domain of Visitor

1 com - commercial, for-profit organizations
2 net - network infrastructure machines and organizations
3 au - Australia
4 edu - 4-year, degree granting colleges/universities
5 uk - United Kingdom
6 ca - Canada
7 de - Deutschland
8 it - Italy
9 nl - Netherlands (Kingdom of the)
10 fr - France
11 us - United States of America
12 il - Israel (State of)
13 jp - Japan
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22 mx - Mexico 282
23 ch - Switzerland (Confederation of)
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37 es - Spain
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50 is - Iceland
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56 ie - Ireland
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66 ae - United Arab Emirates
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73 lu - Luxembourg
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96 ec - Ecuador
97 hm - Heard Island and McDonald Islands
98 nc - New Caledonia (Territoire français d'outre-mer)
99 pg - Papua New Guinea

That the more general domains such as .com are predominantly visitors from the United States is verified by Google Analytics, which shows the following top geographic locations for the frequency of LawPundit visits the last week:

1. United States
2. Germany
3. India
4. Canada
5. United Kingdom
6. Latvia [due to our extensive posting on Latvian government websites]


LAW PUNDIT Wednesday, September 20, 2006 9/20/2006 08:46:00 PM [Home] [Print]

LawPundit Blog continues at LawPundit.com
 

The LawPundit weblog and the archives were not accessible
during part of the day of Wednesday, September 20, 2006
as we transferred our files to a different server
and thus had to change various blog settings.

We apologize to our readers for any inconvenience.

Contrary to our message of several months ago,
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LAW PUNDIT Monday, September 18, 2006 9/18/2006 08:02:00 AM [Home] [Print]

Pope Benedict Says Religious Violence and Inhumanity is Contrary to the Laws of God
 

In a much misunderstood speech in Regensburg, Germany, Pope Benedict XVI attacked those who misuse religion to promote violence and to justify inhuman acts. Benedict noted that religious violence was contrary to the laws of God.

As written by Ian Fisher in The New York Times under the title Pope criticizes Islam's jihad:

[Benedict] began his speech by quoting a 14th-century Byzantine emperor, Manuel II Paleologus [also written Palaiologos or Palaeologus], in a conversation with a "learned Persian" on Christianity and Islam -"and the truth of both." "Show me just what Muhammad brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached," the Pope quoted the emperor".

The Wikipedia has a more extensive explanation at Manuel II Palaiologos:

"In his controversial speech of September 12, 2006, Pope Benedict XVI quoted from a dispute around 1391 between Manuel II and a Persian scholar (Dialogue 7 of Twenty-six Dialogues with a Persian), in which the Emperor stated: "Show me just what Muhammad brought that was new and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." He then continues, saying, "God is not pleased by blood - and not acting reasonably (syn logo) is contrary to God's nature. Faith is born of the soul, not the body. Whoever would lead someone to faith needs the ability to speak well and to reason properly, without violence and threats... To convince a reasonable soul, one does not need a strong arm, or weapons of any kind, or any other means of threatening a person with death...""

The Pope's citation of the over 600-year old quotation from Manuel II has brought a lot of unrest in the Muslim world, but for the wrong reasons. The Pope's citation is seen as an insult to Islam, but then, it seems that any criticism of Islam is seen as an insult by many of its believers. Islam does not seem to have the ability, readiness or willingness to criticize and correct itself, a virtue which we find in Christianity.

In reality, in his controversial speech, the Pope is quoting Manuel II Palaiologos for the legitimate point that too many people erroneously see their religion as a justification to do evil and inhuman things which are contrary to the will of God. This applies not only to the extremist fundamentalists of Islam today but also applies historically to many of the terrible things done by Christians in the course of the development of Christianity, which were contrary to the laws of God.

Clearly the point that Benedict wanted to make is that a good religion is one which reduces violence and spreads the love of God and the love of humanity among mankind. A religion which preaches violence and inhumanity has nothing to do with the true nature of God and is outside the realm of the real God, because it is contrary to reason. In a true religion, on the other hand, faith and reason blend with one another. Goodness and not evil prevails.

When Christianity surfaced as a world religion, arising out of Judaism, it preached human virtues which included obeying the Ten Commandments and other laws of the Bible among the solemn duties of religious men and women. In addition, Christianity represented a significant step forward toward civilized monotheism and a step away from the primitive polytheistic religions of idolatry which marked man's early development. Moreover, Christianity demanded from its believers that they live a good life and be good to their fellow humans, whether these were Christians or not.

Islam is a later religion than Christianity and also arose out of Judaism (i.e. out of the teachings of Abraham and his followers). When Manuel II Palaiologos asks in the year 1391 A.D. what Islam has positively brought to humanity beyond the teachings of Christianity, it was a serious question then and remains a serious question today.

Many Christians would agree with Manuel II that there is not much positive apparent in good works attributable to the Muslim religion. To many, Islam appears mostly to exist to propagate itself through the preaching of religious violence and inhumanity by fanatics.

Hence, many in the Western world see Islam being misused as an excuse to commit violence and to disobey the general laws of reason and of humanity. Those are the issues which Muslims should be addressing and which Pope Benedict raised.

This is not to say that Islam may not have its positive aspects for its believers, the vast majority of whom are Arabs or members of third-world countries, much in the same way that Christianity is the major religion of Western Civilization.

As compared to Christianity, Islam is also monotheistic and thus replaces the primitive religions of polytheism, just as Christianity already did before it. But this is not new to Islam and that is the point that Manuel II was making more than 600 years ago. In essence, the good aspects of Islam are the same as those of Christianity.

What troubled Manuel II, what troubles Pope Benedict XVI and what troubles the rest of the world is that not the good aspects, but rather the bad aspects of Islam are those which many of its believers seem to have selected to follow - and it is these bad aspects of Islam which are contrary to the actual will and nature of God.


LAW PUNDIT Tuesday, September 12, 2006 9/12/2006 08:29:00 AM [Home] [Print]

Pretexting and the Hewlett-Packard Patriciagate Melodrama
 

Please note: pretexting is a word derived from "pretext" and not from "text". Pretexting is a data-gathering practice by which personal information is obtained under false pretenses, i.e. under a pretext.

Pretexting is currently in the news in connection with the snooping of the private phone records of Hewlett-Packard board members by private investigators hired by Hewlett-Packard chairwoman Patricia Dunn to find out who on the HP board was leaking HP board information to news media. Dunn claims to have had no knowledge that pretexting would be used as a method to get information, an explanation which stretches her credibility - after all, how did she imagine that the investigators would get the information she required? Moreover, did not investigators keep her up-to-date on the progress of an investigation she was paying for?

It appears as if private phone records were pretexted not only for HP board members but also for the news reporters who wrote the leaked story, as well as for additional news reporters and related private persons. To put it bluntly, Hewlett-Packard has put itself into a legal and public relations nightmare because of in-fighting among its board membership.

We were always of the opinion that Hewlett-Packard was on a long downhill slide ever since the days of Carly Fiorina and the ill-advised merger with Compaq. Perhaps HP's current problems are simply the inevitable result of a cumulation of many bad decisions over time at the top-level of HP, putting increasingly less-suited persons into office, and leading to the struggling position in which the company now finds itself.

After all, Patricia Dunn started out her career as a freelance reporter and temporary secretary and is not necessarily someone whose inherent qualifications would seem to warrant the kind of business position which she currently (still) holds, although one could speculate that a sense for melodrama might be a product of her background.

George Keyworth II, the admitted board leak source, was former chairman and senior fellow with the Progress & Freedom Foundation, as also a former science adviser to President Reagan and director of the Los Alamos National Laboratory Physics Division, all high political and geek positions but not necessarily posts which should qualify him for a top US corporate role.

Populist-type popularity, politics, expertise in non-related fields and connections seem to mark some (what percent?) of corporate America's leaders, rather than competence for the office held. (So what's new in the world, the sceptics will say. It has always been that way.) We would in any case expect corporate boards to be staffed by people trained in the law and not by the serendipity collection of "popular" - but perhaps sometimes incompetent - persons we often find there. We see this same problem regarding the persons elected to US Congress - where popularity among the voters is the major qualification of US Congressional members, rather than their objective competence, legislative suitability or legal learning.

As for the law involved here, financial pretexting is clearly illegal pursuant to the Gramm-Leach-Bliley Act (GLBA), but the illegality of pretexting is not extended beyond financial institutions by this law. This legislation is typical for the kind of muddled lawmaking which has become more and more typical for the US Congress. Why should just "financial" pretexting be illegal according to that law, but nothing else? Is fraud not fraud everywhere? Indeed, that was one of the excuses referred to by HP in the SEC filing which refers to the pretexting at hand:

"The committee (assigned to review the investigation methodology) was then advised by the committee's outside counsel that the use of pretexting at the time of the investigation was not generally unlawful, except with respect to financial institutions, but such counsel could not confirm that the techniques employed by the outside consulting firm and the party retained by that firm complied with all respects with applicable law," according to the [HP] SEC filing. "

Whether the kind of phone record pretexting used in the instant case was illegal under federal and/or California law is still being investigated by U.S. and State of California attorneys, although the California Attorney General says that a crime has been committed, although it is not yet clear which crime, by whom, or who will we charged. Potentially, since phone records are stored on computers, pretexting also involves "hacking" computer data, which is clearly a crime, both State and federal:

"Chris Hoofnagle, a privacy expert and senior attorney at UC Berkeley's Boalt Hall School of Law, agreed that it appears the pretexting methods employed by HP's investigators violate the law.

"Pretexting like this is technically hacking," he said. "This is illegal under state and federal law.
"

Indeed, at his Chris Blog, Hoofnagle (who is correctly senior staff attorney to the Samuelson Law, Technology & Public Policy Clinic at Boalt) writes:

"No federal law specifically prohibits pretexting phone records. The federal Gramm-Leach-Bliley Act prohibits pretexting for information from financial institutions, but is silent in other contexts. Many have latched onto this silence to claim that pretexting is legal.

Nevertheless, pretexting for phone records is illegal. Don’t believe statements to the contrary from the private investigative lobby. A pretexter can be charged with the federal Computer Fraud and Abuse Act, the Wire Fraud Act, state computer intrusion laws (hacking laws), and state identity theft laws. And not just in California. The laws of other states are flexible enough to pursue this form of fraud.
"

Other blogs that are interesting to read on this issue are:

Spyware Hunt
Law Blog - WSJ see especially this e-mail exchange between Tom Perkins and Larry Sonsoni
White Collar Crime Prof Blog (our remark on the comment there on the attorney-client privilege, is, yes, it is quite amazing that such an e-mail exchange would be made public)


LAW PUNDIT Monday, September 11, 2006 9/11/2006 10:15:00 AM [Home] [Print]

Psychoanalysis, Socratic Education, Evidence and Hand Proofs
 

There are advantages, disadvantages and pitfalls both in the exercise of judgment as well as in the exercise of intuition. Socratic education - in our view - is one method to make students aware of the complexities of thought and to inculcate the ability (viz. habit) to engage in critical thinking in analyzing evidence and in formulating proofs.

In the Abstract to Psychoanalysis and Socratic Education*** by Trevor Pateman (article available as a .rtf document), it is written that:

"A range of concepts are introduced to argue similarities between Socratic Education and Freudian psychoanalysis. The concepts are these: the talking cure; floating attention; knowledge and acknowledgment; judgment and intuition; (prior) theoretical understanding; attending for truth; acting in role; play; negative dialectics; the training of the self ... "

What interests us particularly is Bateman's discussion of judgment and intuition, the former - in his definition - involving what we know or think to to know in an appeal to shared knowledge and the latter - in his definition - involving the subjective expression of how things look or feel to us as individuals. Bateman writes:

"The exercise of judgment involves appeal to what I know or think I know at some articulate level of consciousness. Typically, judgment appeals to shared knowledge: what everyone knows or thinks. So rationalization and self-deception find ready-made support in all kinds of conventional wisdom...."

In contrast, intuition is the expression of a personally experienced connection, drawing on a reservoir of inarticulate consciousness. Intuition is the expression of how things look or feel to me.... [I]ntuition will get us to a (correct) result well before we have the means to judge its correctness ... [M]athematicians have the concept of a hand proof. In a hand proof, there is no (real) proof, just a lot of handwaving. But it gestures to an intuition that if we set out in the general direction indicated by the hand proof, we will get to the proof we want to reach. Intuition is then like a compass. [emphasis added]

But intuition does not always work like this; sometimes it leads us astray. Shown the Muller-Lyer lines, I may intuit that one is longer than the other, but I am actually wrong; judgment is against me. But it still remains that the lines look that way. (The Muller-Lyer lines are the ones placed parallel to each other, but with arrow-heads pointing in opposite directions)...."

To see a graphic of Muller-Lyer lines, see the Epistemology of Perception at The Internet Encyclopedia of Philosophy.

*** "Website version 2004. A first version appeared, under the same title, in a 1993 issue of Aspects of Education (University of Hull, England), number 49, pages 76 - 80. A second version, again under the same title, appeared in S.Appel, editor, Psychoanalysis and Pedagogy (Bergin and Garvey: Westport, Connecticut), pages 45 - 51. Copyright material used by permission."

The basic problem with "hand" proofs as opposed to "mechanical" proofs is that, as noted by Neeraj Suri, Michelle M. Hugue, and Chris J. Walter in Synchronization Issues in Real-Time Systems:

"As hand proofs are sensitive to the skills of the prover, mechanical proofs are sensitive to the correctness of the theorem prover and its underlying logic. "

In other words, to employ a phrase used by Thomas Kuhn (The Structure of Scientific Revolutions), if the paradigms (viz. "mechanical" proofs) underlying a given view of "shared knowledge" are wrong, then that knowledge is likely also wrong. What this means is that someone along the way has done an intuitive "hand proof" which does not conform to the judgmental mechanical proofs in vogue. A hand proof made by a skilled prover is thus always at the root of progress, in any field.

Another example of "hand proofs" is the method by which our legal system relies upon the opinions of judges, rather than on computer-produced verdicts applying fixed mechanical theorems. Here, "skilled" provers are viewed as superior to a computer theorem.

As concerns the progress of science (and law), Thomas Kuhn's theory of scientific revolutions is thus in our view more accurate than Karl Popper's ideas concerning scientific thought as the falsifiability of mainstream statements because "hand proofs" - also in fields other than mathematics - are generally made to conform to the observations at hand, often initially ignorning completely any presumed attempt to "falsify" existing mainstream ideas.

In law, precedents may in fact have to be overturned, but that is not the main purpose of an opinion which overrules prior judicial decisionmaking. Rather, new rules are being made to conform to new observations and events.

Only after an observation-fitting hand proof is made and then compared with the mechanical proofs in vogue does the battle with the inertia of existing paradigms begin.

Mainstream scientists want the ensuing discussion to proceed under their terms and thus demand that their theories be proven false. This, however, does not accurately describe the process of scientific discovery, nor does it describe the primary motivation for overturning precedents in law - and this constitutes Popper's main error in analysis. Popper, by concentrating on mainstream science, does not actually describe the actual process of scientific (or legal) advance - rather, he describes the process of mainstream resistance to advance and the inefficient mechanisms by which that resistance is or can be broken.

The true pioneers in science (or law), on the other hand, and this is where Kuhn's analysis is the more accuracte, have no interest to waste their time on developing proofs to falsify the erroneous theories in vogue, but rather, prefer to be busy building up their own systems which correspond to the evidence at hand. The falsification process of the erroneous prevailing theories is then later carried out by others, i.e. the innovators and early adopters of new theories.

Good examples here are the "hand proof" works of Isaac Newton, which presented new interpretations of observed phenomena and spent as little time as possible wasting time in disproving the erroneous ideas of others.

Another example of new paradigms and hand proofs is the Constitution of the United States, which is a "new discovery" that concentrates on new things to be achieved, rather than on old things to be "disproven". This in fact is still the genius of America, several hundred years later. America is a "Kuhnian" world of new paradigms and "hand proofs", whereas the Old World (Europe, Middle East) is in part still caught in a maelstrom of Popperian inertia of resistance to change, functioning by antiquated and long outdated mechanical solutions (unreformed social systems, entrenched social classes, overemphasis on tradition, no longer state-of-the-art customs, deference to nobility at the cost of modern social innovation, etc.)

As the "hand proof" says, "go for it". That's the American way which is sorely lacking in the Old World.



LAW PUNDIT Wednesday, September 06, 2006 9/06/2006 09:52:00 PM [Home] [Print]

US Chief Justice Roberts - The First Term
 

Via LexisONE, Linda Greenhouse has an assessment at the New York Times of the first term of John G. Roberts Jr. as United States Supreme Court Chief Justice.

Although we have criticized Roberts previously at LawPundit for being too unmoving, we think he is making an excellent Chief Justice and will continue to do so, adding stability and greater unanimity to a court which was often sadly divided under predecessor Chief Justice Rehnquist. The law may in the last analysis be nothing more than "a matter of opinion", but the Supreme Court should never give the country that impression.


LAW PUNDIT 9/06/2006 09:55:00 AM [Home] [Print]

Laws to Suppress
 

Spacetime, the Group Leader of The Edge of Knowledge group at MySpace.com has the following quotation on his profile page:

"Laws to suppress tend to strengthen what they would prohibit. This is the fine point on which all the legal professions of history have based their job security.
--Bene Gesserit Coda (Dune)
"

To what degree is this true and to what degree is this an exaggeration of one inevitable aspect of lawmaking? Why is this so?




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