LawPundit

J.K. Rowling Rightly Wins Child Privacy Case in the United Kingdom Pursuant to Article 8 of the European Convention on Human Rights (ECHR)

2008-05-09T13:53:00.006+02:00

"J.K. Rowling didn't need the Dark Arts to make the paparazzi go poof", writes Gina Serpe at Yahoo! TV.

We have previously posted on the J.K. Rowling copyright infringement case, taking the opposing side, so it is only fair that we post about this litigated privacy case which Rowling (using her real name Joanne Murray) has now won in the United Kingdom, rightly so in our opinion.

The ruling in the case (David Murray (by his litigation friends Neil Murray and Joanne Murray) v Big Pictures (UK) Ltd [2008] EWCA Civ 446) by the England and Wales Court of Appeal (Civil Division) involves an interpretation of the concept of the reasonable expectation of privacy of children according to Article 8 of the European Convention on Human Rights (ECHR), which provides:

"Article 8 Right to respect for private and family life

1 Everyone has the right to respect for his private and family life, his home
and his correspondence.

2 There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary
in a democratic society in the interests of national security, public safety
or the economic well-being of the country, for the prevention of disorder
or crime, for the protection of health or morals, or for the protection of
the rights and freedoms of others."

In the case at hand, the Murrays ("Rowlings") brought an action against the journalistic publication of a covert long lens photograph taken of Rowling and her husband together with their then ca. 19-month old son David as they were walking from their dwelling to a cafe. (David was born on 23 March 2003. The photograph was taken on 8 November 2004. Some sources thus say 19 months while others write 20 months.)

The High Court granted summary judgment against the Rowlings, denying that their child's right of privacy was infringed by publication of the photograph.

The England and Wales Court of Appeal (Civil Division) has now overturned that decision.

On appeal, the Court of Appeal ruled to the contrary that the case should should go to trial (or be settled), since the challenged publication of the photograph in question without consent was indeed a violation of the reasonably expected privacy right of the child under the clear circumstances of this case (a right which existed regardless of the public fame of one of the parents).

Out-Law.com writes:

"There have been some fears in recent privacy cases that courts were creating an image right, the right of celebrities to exert control in all circumstances of how their image is captured and used. Sir Anthony [Sir Anthony Clarke MR] said that this was not the aim and would not be the result of this ruling....

The ruling said: "We do not think that the reality is that the parents seek through their son to establish a right to personal privacy for themselves and their children when engaged in ordinary family activities. […] it seems to us that David may have a reasonable expectation of privacy in circumstances in which his famous mother might not."

The Court of Appeals stated:

"We do not share the predisposition identified by the judge in [66] that routine acts such as a visit to a shop or a ride on a bus should not attract any reasonable expectation of privacy. All depends upon the circumstances. The position of an adult may be very different from that of a child. In this appeal we are concerned only with the question whether David, as a small child, had a reasonable expectation of privacy, not with the question whether his parents would have had such an expectation. Moreover, we are concerned with the context of this case, which was not for example a single photograph taken of David which was for some reason subsequently published.

It seems to us that, subject to the facts of the particular case, the law should indeed protect children from intrusive media attention, at any rate to the extent of holding that a child has a reasonable expectation that he or she will not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child. That is the context in which the photographs of David were taken. [emphasis added by LawPundit]

It is important to note that so to hold does not mean that the child will have, as the judge puts it in [66], a guarantee of privacy. To hold that the child has a reasonable expectation of privacy is only the first step. Then comes the balance which must be struck between the child's rights to respect for his or her private life under article 8 and the publisher's rights to freedom of expression under article 10...."

Obviously, based on that discussion, Rowling has won the case and the defendants will have little option but to settle the case in her favor. Moreover, the case will surely be a landmark case in protecting the privacy rights of children, at least in the United Kingdom.

We definitely approve.

Hat tip to Out-Law.com, where interested readers can find more material on the ruling, also concerning how the Rowling privacy ruling bolsters the [Information] Commissioner's view of data protection law.

See IPKat

See also RangeFinderForum.com

See also Chris Cheesman at AmateurPhotographer.co.uk

A New Husker : Mount Union Cornerbacks Coach Ross Watson Joins Nebraska Cornhuskers Football Program as a Graduate Assistant on Defense

2008-05-07T22:56:00.004+02:00

If you are a Husker football fan, as we are, you have to love this.

Ross Watson, who was the cornerbacks coach for the fabled Mount Union football team the past two years, joined the Nebraska football program in March, 2008 as a graduate assistant on defense.

We have previously posted at length about the unprecedented "culture of excellence" that Larry Kehres has instituted at Mount Union and hope that some of that philosophy - through Watson - rubs off on Bo Pelini's Cornhuskers in the upcoming 2008 football season. Only four months to go....

With hires like this, Nebraska is on the path to return to the exemplary greatness that once marked the Husker football program.

Global Warming Is Probably Not Man-Made but Rather Caused by a Solar Cycle : Also the Solar System is Experiencing Global Warming

2008-05-07T10:58:00.007+02:00

The Foundation for the Study of Cycles, founded by Edward R. Dewey, of which we were a contributing member* many years ago, studied long-term and short-term cycles of all kinds, including solar cycles, which we - already 30 years ago - saw as a key to understanding various cyclic fluctuations in nature and in human society.

We noticed years ago that it was not just our own planet Earth that showed evidence of global warming but also the planet Mars, a confluence of planetary melts which suggested to us then that a solar (sun-caused) explanation of some kind was likely.

We have now run across a February 28, 2007 article at National Geographic News by Kate Ravilious titled Mars Melt Hints at Solar, Not Human, Cause for Warming, Scientist Says, where Ravilious wrote:

"In 2005 data from NASA's Mars Global Surveyor and Odyssey missions revealed that the carbon dioxide "ice caps" near Mars's south pole had been diminishing for three summers in a row.

Habibullo Abdussamatov, head of space research at St. Petersburg's Pulkovo Astronomical Observatory in Russia, says the Mars data is evidence that the current global warming on Earth is being caused by changes in the sun.

"The long-term increase in solar irradiance is heating both Earth and Mars," he said."

See also Russia Blog for a comment on the article.

A solar explanation is to our mind far more sensible than the far-fetched theories (e.g. orbital forcing) being propagated by some mainstream scientists that cycles in planetary ice ages are caused by minimal changes in the wobble of a planet's orbit and tilt. We might rightly call this farcical theory of mainstream science "The Tilted Very Wobbly Theory of Climate Change".

The trouble with this wobbly and surely incorrect theory is that global warming appears to be hitting the entire solar system, not just Mars. As written at Live Science by Ker Than in Sun Blamed for Warming of Earth and Other Worlds:

"Benny Peiser, a social anthropologist at Liverpool John Moores University who monitors studies and news reports of asteroids, global warming and other potentially apocalyptic topics, recently quoted in his daily electronic newsletter the following from a blog called Strata-Sphere:

“Global warming on Neptune's moon Triton as well as Jupiter and Pluto, and now Mars has some [scientists] scratching their heads over what could possibly be in common with the warming of all these planets ... Could there be something in common with all the planets in our solar system that might cause them all to warm at the same time?”"

But such facts do not disturb mainstream scientists trying to protect their private theories.

The alternative - equally unsubstantiated - notion that man is primarily responsible for global warming fails to explain, for example, why Lake Baikal, the greatest repository of fresh water in the world, has been experiencing a temperature increase over the last 137 years, far longer than can be explained by man-made causes. Rising lake temperatures over such a long period of time suggest a bigger influence than man's humble changes to the environment. Man again, elevates himself above nature here, which is often a mistake. Indeed, most people, in mainstream science and out, have simply been "brainwashed" by wobbly orbits or man-made climate change theory and thus are not open to contrary discussion.

We find Abdussamatov's thesis - contrary to the very weak science against the theory - to be much more plausible in looking to long-term cycles in solar activity as the primary cause for a global warming which has hit not just Earth but the rest of our Solar System. Just look at these photos of sun cycles and read these pages about how the Sun works. It is quite clear that when the Sun is in a periodic "glowing" phase, the entire solar system must heat up fairly quickly. Earth is a mere speck of dust as compared to the size and impact of the Sun.

Indeed, the existence of solar cycles is undisputed, and no one doubts that these cycles affect the climate:

1. Long-term Variability in the Length of the Solar Cycle
by Michael L. Rogers and Mercedes T. Richards, Penn State University

2. THE SOLAR WOLF-GLEISSBERG CYCLE AND ITS INFLUENCE ON THE
EARTH by Shahinaz M. Yousef, Astronomy & Meteorology Dept., Faculty of Science, Cairo University

3. Radiocarbon content variations and Maunder Minimum of solar activity

The question is one of degree - literally - which the mainstream scientists are currently incompetent to measure accurately. In our view, longer-term cycles such as the ice ages will be related to longer-term solar cycles covering thousands of years.

Comments on this topic by others:

UnSpace cited in more detail to Abdussamatov's findings as follows:

"Today, I was able to find the book "Multi-Wavelength Investigations of Solar Activity: Proceedings of the 223th [i.e. rd] Symposium of the International Astronomical Union Held in Saint Petersburg, Russia June 14-19, 2004," edited by Alexander V. Stepanov, Elena E. Benevolenskaya and Alexander G Kosovichev. Pages 541-542 had the article "About the long-term coordinated variations of the activity, radius, total irradiance of the Sun and the Earth’s climate" by Habibullo I. Abdussamatov,¹ Pulkovo Observatory, Saint Petersburg, Russia.

I found the following quote to sum up the essential arguments presented:

"Moreover, according to the data of Borisenkov (1988)², in each of the 18 deep Maunder-type minima of solar activity, revealed over the span of the last 7500 years, the cooling of climate had been observed, while warming occurred during the periods of high maxima. Thus, the integral radiation has always been essentially higher at the maximum, and it had noticeably decreased at the minima. Therefore, quasi-periodic variations of the solar activity during both the 11-year cycle and 80- and 100-year cycles are accompanied by proportional variations of the integral flux of solar radiation, which result in geophysical effects. (p. 541)"

"
National Post

__________

* If you read my 1975 article "The Kondratiev Cycle and Saros Cycle in Eminent Births 1700-1800 : Compared to Prices in Southern England for the Same Period"

here is why grain prices, for example, and solar activity are causally related, in plain common sense, as found at JoeCobb.com:

"Two centuries ago, the astronomer William Herschel was reading Adam Smith’s Wealth of Nations when he noticed that quoted grain prices fell when the number of sunspots rose. Gales of laughter ensued, but he was right. At solar maxima, when the sun was at its hottest and sunspots showed, temperature was warmer, grain grew faster and prices fell. Such observations show that even small solar changes affect climate detectably. But recent solar changes have been big."

Update:

Read also this recent article (May 1, 2008) in the New York Times by Andrew C. Revkin
In a New Climate Model, Short-Term Cooling in a Warmer World
and the various related articles linked at that web page, e.g.
the New York Times Global Warming page.

See also the Tom Nelson anti - Global Warming blog, which is giving us a bit of traffic, thank you.

Patent Webinar on May 13, 2008 with the U.S. Commissioner for Patents

2008-05-04T21:14:00.002+02:00

Philip Brooks' Patent Infringement Updates alerts us to an upcoming patent webinar on May 13, 2008 with the U.S. Commissioner for Patents, John J. Doll.

European Union Lisbon Reform Treaty : Consolidated EU Version in All Official Languages

2008-05-04T21:07:00.003+02:00

EU Law Blog has a posting linking to the newly released consolidated European Union Treaty which incorporates the amendments made by the Lisbon Reform-Treaty (.pdf and Word formats).

The Harry Potter Legal Saga : To Whom Do the Characters Truly Belong?

2008-05-04T11:12:00.002+02:00

We have been in England and Scotland for several weeks, including a visit to Alnwick (pronounced "Anick" in England), the location inter alia of the Alnwick Garden and the Alnwick Castle, a Harry Potter film location.

Speaking of Harry Potter, the current issue of Law@Stanford writes:

""POTTER TRIAL: ON LAST DAY, DEFENSE OUTSHINES ROWLING"
The Harry Potter Lexicon trial, in which the law school's Fair Use Project (FUP) defended a book publisher against a copyright lawsuit brought by J.K. Rowling and Warner Bros., was covered by the "New York Times," "Associated Press," "CNN," and many others. The "Wall Street Journal" "blogged" the trial, including FUP Executive Director Anthony Falzone's closing arguments, on its law blog. [Subscription may be required.]"

We posted recently at Literary Pundit about that J.K. Rowling copyright case, a posting which engendered the following comment:

"Macklin said...

When Steven Vander Ark's publisher, RDR Books, told him it was okay to publish a printed version of Vander Ark's Harry Potter Lexicon Web site, which is largely derived from work by Harry Potter author J.K. Rowling, Vander Ark accepted that without further question and proceeded with the project. That cavalier attitude is no surprise when one considers he had been trying to market this idea to two other publishers.

When did it become okay to lift someone else's copyrighted material and present it as one's own? That's why, “in the name of scholastic pursuit”, I've made a copy of Vander Ark's Web site to use as my own Web site. Oh, it's okay. I've changed the name of the site and reorganized it a little. My version is called Harry Potter's Maxicon. Different enough, right?

Http://www.maxicon.org"

Here is what we replied to that comment:

"Please note that I use the term "Harry Potter" in this posting and that it is completely legal for me to do so. That already reveals to us an important legal principle.

J.K. Rowling makes a significant error in thinking that her characters "belong" to her only, as she has allegedly stated.

They belonged solely to her only as long as she kept them private and unpublished.

Once she published them - and for magnificent profit at that - the characters entered society. People buy her books, if you will, to enter "her" previously private fantasy world. She reveals her private world and they pay for it - it is a strict economic trade-off. Once they have read her books, those characters become a part of their lives too, and copyright law can not change that fact.

If, for example, I were to write a book on the influence of the Harry Potter books and the characters in them on my life, there is nothing that J.K. Rowling could do to stop it. It is my life and if she has published books that I have read and that have had an influence on me, I can write about them, mentioning characters and episodes in those books that were of importance to me. This would be called a "transformative" use of any of J.K. Rowling's materials.

Publications such as compilations, lexicons, encyclopedias, etc. are other means by which people deal with materials to which they and others have been exposed and which have had a significant impact on them or others. Without such (legally) transformative reference materials, our fiction and non-fiction world would be a T.S. Eliot wasteland. Literature lives on not only because it is read, but because it is discussed, cited, mentioned, referred to, compiled, abstracted, etc. in myriad forms.

In my opinion, Rowling and many other copyright and patent holders have a confused sense of our copyright and patent laws, thinking that these laws give them absolute control over their creations.

No one denies that it would be a flagrant copyright violation to copy a Harry Potter novel and sell it as "pirate" ware or under another author's name. But that is not the issue here.

Rather, Rowling is claiming that only SHE has the right to put out a lexicon about her books, from her point of view.

In my opinion, the law must resist this kind of control over human thought at every cost. No one prohibits Rowling from turning out her own lexicon, but she should not be allowed to prohibit others from doing so.

In the old Soviet Union, there was only one kind of truth, the kind found in Pravda. In J.K. Rowling's world, apparently only her own lexicon would be the whole truth and nothing but the truth.

Sorry, but that is not a world that I want, and that is not a world envisioned by the copyright laws."

Give Me Back My Love by Maywood and Other Great Songs : Late at Night, Rio, I'm in Love for the Very First Time : Dynamic Music Sung in Fabulous Voice

2008-04-15T17:31:00.007+02:00

We heard the wonderful song Give Me Back My Love on the radio this week for the first time ever, listening by chance to a schmalzy station that we generally ignore (SWR4 Rheinland-Pfalz), and were knocked over by the music and the voice of this fantastic song.

How great was our astonishment to find out that Give Me Back My Love by the group Maywood in the album Maywood was recorded way back in 1980 (see the lyrics at their site under Discography, World Wide, Germany, Maywood, Label CNR, Catalogue no. 0030.354.)

Why had we never heard this song anywhere before?

As we read in the biography at the official Maywood website, Maywood's Give Me Back My Love hit gold status in the Netherlands and Sweden but somehow escaped greater fame.

We definitely would put this song on our all-time Top Ten list of songs.
Absolutely fabulous.
Take a listen....

And, after some research, here is another song, by both Maywoods. Spectacularly good.
Maybe even better, at least optically for sure, than the first....
Late at Night....

Listen, Maywood...is superb, superb!

Update: OK, I'm hooked on these ladies. How about this vibrant song Rio (1981):

and, what can you say about this heart-to-heart song ...
I'm in Love for the Very First Time

For us, it is an Alice May and Caren Wood revival. MayWood. Beautiful.

The Upcoming 2008 NFL Draft : Top Football Players from Smaller Schools May Be Surprisingly High Draft Picks

2008-04-15T13:27:00.009+02:00

In the upcoming 2008 NFL Draft, the players from small schools that we would consider as potential high draft picks are:

1. Tyrell Johnson, Strong Safety, Arkansas State.
Johnson has great strength and agility, excellent speed, and is one of those players who has the instinct and desire which puts them in the right place at the right time in critical game situations. Johnson looks like a future Pro Bowl prospect to us.
see
Doug Farrar at Scout.com and his article Tyrell Johnson : Forgotten Man Gains Ground
Frank Cooney's NFL Draft Scout - Ratings
Frank Cooney's NFL Draft Scout- Combine
NFL Smackdown

2. Brian Johnston, Defensive End, Gardner-Webb.
Johnston has great speed for his size, and was often double-teamed in college ball. He may be a number one pick for a team needing a defensive end.
see
NFL Draft Guys
NFL Draft Dog

3. Dominique Rodgers-Cromartie, Cornerback, Tennessee State (born in Bradenton, Florida)
Many in fact see Rodgers-Cromatie as a first-round draft pick.
see
NFL Draft Countdown
NFL Draft Watch
NFL Insider NFL Draft Tracker

We are also interested to see if the following small college running backs, both originally out of Nebraska, will be drafted, and if so, in which round:

Danny Woodhead, Chadron State
see
NFL Draft Countdown
NFL Draft Watch

and

Xavier Omon, Northwest Missouri State (out of Beatrice, Nebraska)

Omon has the better size and weight for pro ball but is slower than Woodhead as an RB. Woodhead has lightning speed in all directions, but with size and weight normally considered too small for pro ball.

However, Woodhead is bigger and faster than Darren Sproles, and is about the same size and speed as Maruice Jones-Drew, both of whom have been quite successful in the NFL, and Woodhead has better combine-type stats at all levels than Sproles, so that we expect someone to take him in the draft as a return man for special teams.

Omon was the MVP in the Texas v. The Nation Game, a performance which we think will move him into a draft position rather than the otherwise expected free agent status.

Obama Clinton McCain : President and Senators : Not Everyone is a Natural Leader : Barack Obama IS : Hillary Clinton IS NOT : John McCain IS NOT

2008-04-14T16:18:00.006+02:00

David Brooks at the New York Times has it right at The Obama-Clinton Issue.

A President is different than a Senator. Great leaders are not groupies.

Almost everyone who views the world realistically, and especially people with any kind of experience in organizations, will surely agree with our observation that leadership potential varies among human beings. Some people have natural leadership talents and are well suited to be "number one", whereas others are best suited to be "number two" or to work together in groups, or, indeed, to work independently. This does not mean that one type of person is better or worse than the other, but it has a great deal to say about who should be where in the organizational state of things.

We shifted our support from Hillary Clinton to Barack Obama because Obama has natural leadership talents and because Hillary Clinton, as became clear early in the Presidential campaign, does not have these natural leadership talents. Nor is this surprising. It would be remarkable in a marriage if both partners were natural-born leaders. Such people do not often marry each other. In this case, regardless of whatever strengths or weaknesses he may have had as President of the United States, Bill Clinton was a natural born leader, even from his youngest days, but his wife was not. Without Bill, Hillary would never be politically where she is today. She is still riding on Bill's coattails.

A similar difficulty exists with the Presidency of George W. Bush, whose election would have been unthinkable without the previous Presidency of father George H.W. Bush, a natural-born leader, who held all manner of leadership positions from his youngest days, something that can not be said for his son. George W. is still riding on his father's coattails.

John McCain has a similar critical flaw as a Presidential candidate. His status as a war hero and Senator does not make him a natural leader, and he has in fact not shown many leadership traits in his life, outside of war, either as a young man, or now in his older years, although his political skills have definitely improved with age, no question about that.

None of this is to say that George W. Bush is not a fine man (he might be our choice for a golfing buddy), or that Hillary Clinton is not a fine woman (she might be our choice as an intellectual chat buddy) or that John McCain is not a fine man (he might be our choice as a drinking buddy), but being a fine man or woman is not a sufficient qualification by itself for leading a great country forward into better times than it is now experiencing. There has to be more.

Contrary to some opinions, it is also quite clear that leadership ability is something conceptually different than experience, otherwise we could just always select people with the most experience to run things, but that is not the way the world works.

Take a look at these definitions of leadership at Google.

Which candidate best fits those definitions? and remember that the answer has little to do with race, religion, gender or political party. It has to do with ability.

Be honest, which Presidential candidate has those leadership qualifications?
We think in this election that the answer is clear.

Globalization, The Changing World and Legal Order, Private International Law, Territorial Legal Systems, Cyberspace, Choice of Law

2008-04-14T14:15:00.013+02:00

Conflict of Laws blog, in association with the Journal of Private International Law and sponsored by Clifford Chance LLP, carries a short article on Reshaping Private International Law in a Changing World by Horatia Muir-Watt, Professor of Private International and Comparative Law at the University of Paris I (Panthéon-Sorbonne).

This atricle raises important issues regarding globalization and the changing modern legal world. Muir-Watt touches upon three main areas:

1. Choice of law and economic due process
2. The “new unilateralism”
3. Conflicts of public law.

She writes in the first paragraph of her article:

"The past few decades have witnessed profound changes in the world order – changes affecting the nature of sovereignty or the significance of territory – which require measuring the methodological impact of political and technological transformations on traditional ways of thinking about allocation of prescriptive and adjudicatory authority as between states. Myriads of issues arise in this respect within the new global environment, such as the extraterritorial reach of regulatory law, the decline of the private/public divide in the international field, the renewed foundations of adjudicatory jurisdiction (particularly in cyberspace), the implications of individual and collective access to justice in the international sphere, the impact of fundamental rights on choice of law, the ability of parties to cross regulatory frontiers and the subsequent transformation of the relationship between law and market. Indeed, one of the most important issues raised by globalization from a private international law perspective is the extent to which private economic actors are now achieving “lift-off” from the sway of territorial legal systems. To some extent, traditional rules on jurisdiction, choice of law and recognition/enforcement of judgments and arbitral awards have favored the undermining of law’s (geographical) empire, which is already threatened by the increasing transparency of national barriers to cross-border trade and investment. Party mobility through choice of law and forum induces a worldwide supply and demand for legal products. When such a market is unregulated, the consequences of such legislative competition may be disastrous."

Read the entire article here.

Hat tip to EU Law Blog.

NCAA Basketball Championship Game 2008 : Prediction of Winner between the Kansas Jayhawks and the Memphis Tigers

2008-04-06T15:10:00.009+02:00

This is just for fun. We disclaim any liability for the consequences of anyone relying on these predictions for any purpose.

Update: As we predicted, Kansas won the ball game against Memphis for the NCAA national basketball championship. The final score in overtime was 75-68. The game was tied at the end of regulation, so that either team deserved to win, but only one can. Both teams had 14 assists, speaking for the team cohesiveness of both teams.

Using our beta AKBPSYS (AK Basketball Prediction System), we correctly called the Kansas win over North Carolina and the Memphis win over UCLA.

Going into those games:
Kansas had scored 80.6 points per game and allowed 61.2 points per game for a +19.4 ppg advantage (ppga)
Memphis had scored 80.3 points per game and allowed 61.6 points per game for a +18.7 ppga

The Jayhawks beat the Tar Heels by 18 points 84-66 about 1-2 points below their season average.
The Tigers beat the Bruins by 15 points 78-63, about 3-4 points below their season average.

Using the adjustments of the AKBPSYS we had the following rankings for the Final Four prior to the semifinal games (the point total after each team is the adjusted points per game advantage, i.e. adjusted for schedule difficulty, points allowed by the defense, and won-loss records):

1. Kansas 13.6
2. Memphis 13.2
3. UCLA 11.7
4. North Carolina 11.2

Interestingly, we find our rating results for the Final Four agree with Ken Pomeroy's overall basketball ratings, and an analysis of the Final Four by Steve Makinen is useful, who notes that if Kansas plays its top basketball, it is a team which can not be beaten at this level of college competition.

The Vegas line is 1 point in favor of Memphis, which surprises us.

If the championship game goes according to our analysis of the stats, these almost evenly matched teams should give us quite a ball game with Kansas in our prediction winning by a point 71-70 (presuming the game does not go into overtime). We pick that score because both teams had almost an equivalent seasonal statistic in this regard:

The average number of points by both teams in a game played by Kansas was 141.8
The average number of points by both teams in a game played by Memphis was 141.9.

You can't get too much closer than that.

As far as standard analysis of the teams is concerned, it would seem to us that the decisive factor is the close team cohesiveness of Kansas, which should be mirrored in the game by more assists for Kansas than for Memphis, and that should make the difference in the final game.

However, if one of these teams is on its game 100% and the other team not playing fully in top form, either team could turn the final game into laugher on either side. Hence, we hope both teams play up to top capabilities, in which case the championship game should be a barnburner.

Who in America really wants "more of the same"? 19%

2008-04-05T14:13:00.005+02:00

In a recent post at LawPundit we wrote:

"Who in America really wants "more of the same"? Surely not the majority."

Just two days later, on April 4 2008, the New York Times carried an article by David Leonhardt and Marjorie Connelly the title of which says it all:

81% in Poll Say Nation Is Headed on Wrong Track

What that means is that the vast majority of the American nation, even those who voted for Clinton or McCain in the primaries, confirm that Obama's message of change is ringing loud and true. Leonhardt and Connelly write inter alia:

"Americans are more dissatisfied with the country’s direction than at any time since the New York Times/CBS News poll began asking about the subject in the early 1990s, according to the latest poll.

In the poll, 81 percent of respondents said they believed “things have pretty seriously gotten off on the wrong track,” up from 69 percent a year ago and 35 percent in early 2002....

A majority of nearly every demographic and political group — Democrats and Republicans, men and women, residents of cities and rural areas, college graduates and those who finished only high school — say the United States is headed in the wrong direction. Seventy-eight percent of respondents said the country was worse off than five years ago; just 4 percent said it was better off."

In terms of the Presidential election, it is hard to understand that McCain is campaigning on a platform of "more of the same", a nostalgic political position totally at odds with reality.

The Phenomenal Impact of Barack Obama on America's Youth

2008-04-04T22:59:00.003+02:00

The current Presidential election campaign is already an event without precedent, as Barack Obama, win or lose, is exerting an incredibly positive influence on the youth of the country, which will last far beyond this election, with surely unforseeable but beneficial consequences for the United States and the rest of the world. Take a look at this video of high school students in the Bronx (one of America's toughest neighborhoods) talking about Barack Obama and the impact he is having on them. It is really all quite astounding and shows how important role models are for motivating young people. As one young man states in the video, representative for millions, he really has the feeling that Obama is speaking to HIM personally, and indeed, he is:

NCAA 2008 Basketball Semifinal Championship Game Predictions

2008-04-04T21:52:00.006+02:00

This is just for fun. We disclaim any liability for the consequences of anyone relying on these predictions for any purpose.

Sagarin's ratings have North Carolina 1st, Kansas 2nd, Memphis 3rd and UCLA 4th.
Sagarin's predictor (pure points) would have Kansas 1st, North Carolina 2nd, UCLA 3rd and Memphis 4th.
Massey Ratings have Memphis 1st, North Carolina 2nd, UCLA 3rd and Kansas 4th.
The AP poll has North Carolina 1st, Memphis 2nd, UCLA 3rd and Kansas 4th.
The USA Today/ESPN poll has North Carolina 1st, UCLA 2nd, Memphis 3rd and Kansas 4th.
The RPI rankings had Tennessee 1st, North Carolina 2nd, Memphis 3rd, UCLA 4th and Kansas 5th.
Yahoo! User Rankings have Kansas 1st, North Carolina 2nd, UCLA 3rd and Memphis 4th.

Based on the statistics at Rivals.com via Yahoo Sports, our predictions for the semifinal NCAA basketball championship games are based on the following calculations using our AK Basketball Prediction System AKBPSYS (beta)

This season's average points-for to points-against for each team:

Kansas - scored 80.6 points per game and allowed 61.2 points per game = +19.4 ppg advantage (ppga)
Memphis - scored 80.3 points per game and allowed 61.6 points per game = +18.7 ppg adv.
North Carolina - scored 89.2 points per game and allowed 72.2 points per game = +17.0 ppg adv.
UCLA - scored 73.8 points per game and allowed 58.5 points per game = + 15.3 ppg adv.

Won-Loss adjustment:

Deduct 1 point per loss from the points-per-game advantage component (ppga):

Memphis 37-1 deduct 1 point from 18.7 = 17.7
North Carolina 36-2 deduct 2 points from 17.0 = 15.0
Kansas 35-3 deduct 3 points from 19.4 = 16.4
UCLA 35-3 deduct 3 points from 15.3 = 12.3

Defensive points per game allowed adjustment:

above 60 points per game allowed deduct 1 point
above 65 points per game allowed deduct 2 points
above 70 points per game allowed deduct 3 points
above 75 points per game allowed deduct 4 points
above 80 points per game allowed deduct 5 points

UCLA allowed 58.5 ppg - deduct 0 points from 12.3 = 12.3
Kansas allowed 61.2 ppg - deduct 1 point from 16.4 = 15.4
Memphis allowed 61.6 ppg - deduct 1 point from 17.7 = 16.7
North Carolina allowed 72.2 - ppg deduct 3 points from 15.0 = 12.0

Schedule difficulty adjustment
Schedule difficulty according to Massey Ratings:

Deduct .1 point (one-tenth of a point) for each place below 1st
UCLA 6th - deduct .6 from 12.3 = 11.7
North Carolina 8th - deduct .8 from 12.0 = 11.2
Kansas 18th - deduct 1.8 from 15.4 = 13.6
Memphis 35th - deduct 3.5 from 16.7 = 13.2

Our final ranking going into the semifinals:

1. Kansas 13.6
2. Memphis 13.2
3. UCLA 11.7
4. North Carolina 11.2

We thus make

Memphis 1.5 point favorites over UCLA
and
Kansas 2.5 point favorites over North Carolina.

How useful is that for ONE game? Not very useful. It is less than one possession since a 2 or a 3-point basket can overturn the outcome of the game.

The odds at Yahoo sports currently show that:

Memphis is favored by 2 over UCLA
and
North Carolina is favored by 3 over Kansas.

The average number of points in a game played by Memphis was 141.9
The average number of points in a game played by UCLA was 132.3
The average number of points in a game played by North Carolina was 161.4
The average number of points in a game played by Kansas was 141.8

We use the average of both competing teams together to obtain the number of points that we think will be scored in a game and then predict our score:
for Memphis and UCLA 141.9 plus 132.3 = 274.2 divided by 2 = 137.1
for North Carolina and Kansas 161.4 plus 141.8 = 303.2 divided by 2 = 151.6

We thus call the semifinal games:

Memphis 69 UCLA 68 i.e. 137 total points
Kansas 77 North Carolina 75 i.e. 152 total points

Where do the Poor People Live? Obama-Clinton Presidential Ticket Likely : John McCain Unlikely to Win because of State of U.S. Economy

2008-04-02T14:13:00.009+02:00

Both Barack Obama and Hillary Clinton have toned down their campaigns against each other, which we think is a sign that a Barack Obama-Hillary Clinton presidential ticket is in the offing, which would heal the acrimonious party division caused by the primary campaigns, and which would virtually guarantee the Democrats the election - and that after all, is the main thing, recovering government power and making the changes that need to be made.

One can tell by watching John McCain that he is having the time of his life running for President, profiling his own personal war life, and so on, which is understandable, but sorry to say for the presumptive if nostalgic Republican Presidential nominee, history shows that he has very little chance of winning the upcoming Presidential Election, given the rather desolate state of the U.S. economy, a situation which generally favors the challenging party in Presidential elections.

Who in America really wants "more of the same"? Surely not the majority. As written at Rasmussen Reports:

"Forty-two percent (42%) say the economy is the top voting issue of Election 2008. That figure includes 51% of Democrats and 35% of Republicans. Just 17% rate the U.S. economy as good or excellent. Thirty-seven percent (37%) rate the economy as fair while a plurality of 44% say the current state of the economy is poor. Ten percent (10%) say the economy is getting better while 64% say it is getting worse. Nationally, the Rasmussen Consumer Index shows that consumer and investor confidence is near the lowest levels of the past seven years....

and here further:

Rasmussen Markets data shows that the Democratic candidate is currently given a 59.5 % chance of winning the White House in November. Visit the Rasmussen Reports home page for the most current polling data on all topics."

McCain may draw the votes of those who have money in the US, the traditional stronghold of the Republican Party, but it is a dwindling few, and of those even many are so unwilling to share their wealth that McCain has had trouble financing his campaign. Greed is not healed by politics.

Poverty is widespread in the United States and growing. There are now nearly 30 million people on food stamps. David Osborne in New York writing for the Independent has labelled the situation USA 2008: The Great Depression:

"Emblematic of the downturn until now has been the parades of houses seized in foreclosure all across the country, and myriad families separated from their homes. But now the crisis is starting to hit the country in its gut. Getting food on the table is a challenge many Americans are finding harder to meet. As a barometer of the country's economic health, food stamp usage may not be perfect, but can certainly tell a story."

30 million people are nearly 10% of the population - a massive army of downtrodden - created in part by the faulty economic policies of the current administration, whose tax cuts benefit the rich without any corresponding benefit to the nation or the mass of its people and whose economic policies have greatly weakened the middle classes. The rich are getting richer and the poor are getting poorer and the divide is getting bigger than ever. As Daniel Gross writes at Slate:

"The distinction between the performance of the Dow and that of the other market indices is a perfect metaphor for the economy under Bush. Assume the stock market represents America. The Dow components—the tiny minority of the richest—are putting up record numbers, while the masses are struggling to do as well as they did in the late 1990s."

The discrepancy in wealth between the top and the bottom is system-induced and system-supported. One of the things in Germany that has astounded some of our visitors is the somewhat better distribution of wealth here, something which marks most of Northern Europe. As one guest here in Germany for the first time asked us: "where do the poor people live?" We had to answer that there were no poor in Germany in the same impoverished sense that one finds in the USA.

A class of poor only exists because the economic system has created that particular economic class without implementing the necessary measures of corrective wealth distribution. When, as the current administration did, you take a large financial government surplus and give it back to taxpayers pro rata for the amount of taxes paid, that is simple wealth redistribution to the rich, who did not complain about their windfall. Most people, even those on the right who claim to be against wealth redistribution in principle, accept such redistribution without complaint. It just depends on who is getting the money. As for the effectiveness of the tax cuts made, 61% of Americans have said the tax cuts did not help them or their families.

Moreover, as we recently stated to someone complaining about his taxes, the last persons who should complain about high taxes are the wealthy, because they are the main benefactors of those taxes, which go primarily to sustain the entire structure of the political and economic system that permits them to become and stay wealthy in the first place, while at the same time keeping the "have nots" in their places.

In the legal sphere, thousands of patent examiners, for example, are not being paid to protect the rights of the average citizen, rather they are being paid to protect the rights of that small elite minority of patent holders, mostly corporations, whose tax-financed and government-protected monopolies allow them to accumulate great amounts of wealth, often through no real work at all. It is a government gift, operating as wealth redistribution on a gigantic scale, financed by the tax monies of citizens.

LawPundit Link at the New York Times brings New Visitors to LawPundit

2008-04-02T12:10:00.003+02:00

We greet all new visitors from the New York Times.

Over at The Caucus, the New York Times politics blog, LawPundit is linked at From Around the Web at the blog posting Clinton Bowls Over Media, and this is bringing some new visitors to LawPundit.

Enjoy.

LawPundit and the Golf Side of Business : All Work and No Play Makes for a Dull Day : Time to Get to the Links

2008-04-02T03:25:00.011+02:00

Dear Readers,

This posting will be of interest mostly to those of you who know me personally. Our posting activity here at LawPundit will decline substantially now as the golf season has begun, and we have some pictures to show you why - fresh air, fun and exercise.

The LawPundit taking a prize in 2007

The LawPundit's golf club at Cochem on the Moselle River has put together a picture gallery on its website and we are featured a few times via the club's photo days, during which we played well and shot a 79, hampered, however, by an out of bounds and an 8 on the par 4 tenth hole, but all things considered, not bad for a 60-year old.

As you can see below, we also had this tough shot out of the fairway bunker on the 16th hole, which we punched so hard that you can no longer see the ball, but we did par the hole. This really looks like a golf shot.

This putt on the 9th hole went in for a birdie:

More photos are available at the Cochem Golf-Club website.

The Obama Campaign is Operating in the Black : The Clinton and McCain Campaigns are in the Red : Leadership Begins BEFORE One Gets in the White House

2008-04-02T02:12:00.004+02:00

Judging by the ability to raise money for the Presidential election campaign and consequently the capability to operate on a sound fiscal basis, Barack Obama has left Hillary Clinton and John McCain in the dust. See the Kenneth P. Vogel article at CBS at Cash-Strapped Clinton Fails To Pay Bills, where Vogel writes:

"Hillary Rodham Clinton’s cash-strapped presidential campaign has been putting off paying hundreds of bills for months....

... [because of] Clinton’s inability to keep up with the staggering fundraising pace set by her opponent for the Democratic presidential nomination, Illinois Sen. Barack Obama....

The presidential campaign of presumptive Republican nominee Arizona Sen. John McCain reported $4.3 million in debt at the end of February...."

This observer finds it hard to accept the argument that a candidate can not raise enough money for their own Presidential campaign but yet can try to claim to be the best future leader of the country. Leadership RESULTS do not begin at some magical date in the future, but rather are manifested - or not - quite clearly long before any votes are cast.

Obama is leading ... and McCain and Clinton are following.

April Fools' Day Jokes are not Exempted from the Legal Dangers of Libel and Defamation

2008-04-01T11:59:00.002+02:00

It is April Fools' Day, but be careful what you write or say, as the attempt to be funny or to play a practical joke on others or at the expense of others does not protect the writer or speaker from libel and defamation suits. Read attorney Michael Hiestand at the National Scholastic Press Association in Don't be the punchline of an April Fools' mistake.

April Fools' Day is not a recognized legal defense for writing or saying things about others which are not true.

A Theory on Harvard Law School Alumnus Leonid Rozhetskin's Disappearance in Jurmala (near Riga) Latvia : Kidnapping

2008-03-30T18:25:00.006+02:00

Criminal law was always the most interesting of all legal studies, so that detective stories always catch our attention.

We posted on the Rozhetskin case previously here and after reading the most recent news accounts worldwide, we have a theory about the case, for which we initially developed an interest only because Rozhetskin disappeared from Jurmala, a great Latvian beach and villa resort on the Baltic Sea which we have ourselves visited and liked immensely, and so we thought it was a shame that this wonderful leisure and recreation area near Riga was now burdened with this kind of negative notoriety.

Image of Jurmala, Latvia (near Riga) linked from Riga-Life.com
The key to the case in our opinion is Rozhetskin's private jet, whose movements are recorded by the Daily Mail.

Why would the private jet have left Latvia without Rozhetskin? There occurs to us an obvious if speculative theory that Rozhetskin could have been kidnapped and thus might be being held for ransom. The pilots of the plane then could theoretically have received instructions to obtain the ransom money in cash, which would account for the flight to Switzerland. Many scenarios can then be imagined as to why the plane had to fly elsewhere and we are not going to speculate on that, since we have no information of any kind about the case other than what we read in the newspapers.

Indeed, the relative paucity of information being provided by the police and other authorities would support our kidnapping theory, since this blanket of silence would in such a case, if true, be trying to protect Rozhetskin's life.

In any case, we hope for a happy end to the case and for a future world in Eastern Europe which accords with Russian President-elect Dmitry Medvedev's vision for Russia of a society guided by the rule of law, abiding by modern concepts of law, especially the court litigation of grievances, rather than the outdated strongarm methods of a past primitive era, out of which Russia, the Baltic and Eastern Europe are slowly emerging.

The Financial Times Interviews Russian President-elect Dmitry Medvedev who Plans to Strengthen the Rule of Law and the Independence of the Courts

2008-03-29T22:50:00.003+01:00

The Moscow Times carried an AP story at Medvedev Sits Down With FT which indicates that President-elect Dmitry Medvedev of Russia plans to strengthen the rule of law and the independence of the courts.

We found a more extensive presentation of Medvedev's interview with the Financial Times at the Voice of America article by Peter Fedynsky, Medvedev Calls for Rule of Law in Russia, where Fedynsky writes:

"Dmitry Medvedev told the Financial Times the challenge facing Russia is to translate its recent economic success into social programs, including housing, healthcare, and education....

He notes that President Putin's decision to step aside is unprecedented for a Russian leader, but consistent with the constitution.

Mr. Medvedev says Mr. Putin's move means that Russia is at last developing a tradition of respecting all constitutional and other legal procedures."

Take a look at the full transcript of the interview at the Financial Times, which covers inter alia politics, economics, the media, state monopolies, nuclear weapons, social justice, international relations, consumerism, corruption, democracy and the law. The interview is brilliant.

To quote Medvedev directly on this topic from the Financial Times interview:

"[FT Financial Times]: You are a lawyer, a very experienced lawyer so I would like to ask what concrete steps you will take to strengthen the rule of law in Russia?

[Dmitry Medvedev}: I really am a lawyer, perhaps to a greater degree than is necessary. You could say I am a lawyer down to my bones. But this also adds certain advantages.

"I think that we should move in three directions. [1] One direction is the assertion of the supremacy of the law in our society.... [2] [W]e need to make sure that every citizen understands not only the necessity and desirability of observing the law but also understands that without such a relation to the law there cannot be a normal development of our state or our society.... [3] And finally, a third very important thing connected to the legal system and the implementation of laws in our country is an active and effective court system."

Extremely interesting are also Medvedev's statements about how Russia plans to stop corruption among its ranks, under the motto that corruption in the future - reading between the lines - may cost violators their old age and pension rights. Now there is an effective incentive viz. deterrent to keep people honest, on both sides of any tempting bribe action. To cut down on corruption, you make the price for being caught very high, much higher than most people are willing to risk. It is a simple and clearly workable solution.

Medvedev states that a three-pronged approach will be used to reduce corruption:

1) amendments to the criminal law will be made,
2) counter-corruption stimuli will be required (inter alia, such as we referred to above), and
3) a modern perception of law will be formed among the citizenry.

To really get a good idea about the direction that Russia is heading from Russia's global and national viewpoint, a full read of this Financial Times interview is highly recommended by LawPundit.

The Qatar Doha Debates at BBC World Highlight World Political Issues in an Arabic Setting : The Next Debate is April 1, 2008

2008-03-28T13:50:00.006+01:00

One very interesting and highly viewed Middle East forum (estimated audience up to now is about 300 million, but not well known in the United States, as far as we can tell) is found at The Doha Debates from Qatar which are transmitted via BBC World and sponsored by the Qatar Foundation. Videos of the debates are available for free online.

As written at the Doha Debates website online:

"For the past three years, the Doha Debates have been providing a platform for serious discussion of the hottest issues in the Arab and Islamic worlds, striving to be both controversial and informative. They have gained a huge international following through their broadcast on BBC World - the BBC's international television channel."

Selected topics are debated and the audience votes for or against one side or the other of a given question. The debate participants are selectively chosen, and often represent well-known organizations and their viewpoints, for or against the Doha Debate topic. The audience is mixed.

The last Doha Debate, for example, was held on March 3rd, 2008 and broadcast by BBC World on March 8 and March 9, 2008. The topic was:

"This House believes that Muslims are failing to combat extremism" and the vote result was that "The motion was passed".

The next upcoming debate on April 1, 2008 is:

'This House believes the Palestinians risk becoming their own worst enemy.'

Also that is a very controversial topic.

See a video of the last debate here.

From KAU to KAUST : Saudi Arabia Goes High Tech at the University Level : With Nondiscrimination in Religion, Race and Gender

2008-03-28T12:35:00.004+01:00

Via the @Stanford Newsletter, the Stanford News Service writes at Stanford to help new Saudi university in applied math, computer science:

"Stanford is joining a team of universities working to build a major science and technology university along a marshy peninsula on Saudi Arabia's western coast.

The King Abdullah University of Science and Technology (KAUST) will be an international, graduate-level research university, sponsored by Saudi Arabia's reigning monarch. The university, intended to be a showcase for modernization, broke ground last October with a lavish ceremony; it plans to open its doors to students in September 2009. The campus will start with an endowment in excess of $10 billion—one of the largest endowments in the world."

General Stanford principles of nondiscrimination as regards religion, race and gender are to be a part of KAUST, though it is doubtful that all nations will have equal access to education at KAUST since the university is still subject to Saudi laws, which still discriminate heavily against certain groups in terms of visa entry (Israel) and for example, driving of automobiles (no women).

But, it is a start in the right direction of leaving the fruitless path of religious extremist confrontation and joining the cooperative path of all humanity.

Read the full Stanford article here.

This is really quite a sensational development in international education and the discussion in the article concerning political and religious issues related to education is quite an eye-opener.

Arbitral Standards of Review in Hall Street v. Mattel : US Supreme Court Sets Clear Standard : Statutory Grounds Exclusive for FAA Judicial Review

2008-03-28T01:44:00.005+01:00

Via the Disputing blog, which we have added to our blogroll, we were led to this week's United States Supreme Court arbitration law decision in Hall Street v. Mattel (Hall Street Associates v. Mattel, Inc., ___ U.S. ___ (2008) (Cause No. 06-989)):

Justice Souter wasted no time in stating in the first paragraph of his majority opinion:

"The Federal Arbitration Act (FAA or Act), 9 U. S. C. §1 et seq., provides for expedited judicial review to confirm, vacate, or modify arbitration awards. §§9–11 (2000 ed.and Supp. V). The question here is whether statutory grounds for prompt vacatur and modification may be supplemented by contract. We hold that the statutory grounds are exclusive."

OK. That's clear. Gee, does that exist in law?

European Digital Rights (EDRI) Defends Civil Rights in the Information Society in Europe

2008-03-26T16:09:00.002+01:00

European Digital Rights (EDRI) is an organization in Europe which defends civil rights in the "information society" in Europe. As written at their website:

"European Digital Rights was founded in June 2002. Currently 28 privacy and civil rights organisations have EDRI membership. They are based or have offices in 17 different countries in Europe....

Statutory membership is restricted to not-for-profit, non-governmental organisations whose goals include the defence and promotion of civil rights in the field of information- and communication technology."

EDRI produces EDRI-gram, a bi-weekly newsletter about digital civil rights in Europe.

Subscribe here to EDRI-gram.