Longtime Houston attorney Tom Kirkendall's observations on developments in law, business, medicine, culture, sports, and other matters of general interest to the Houston business, professional, and academic communities.
The theory behind copyright is simple – if we allow anyone to copy a good new idea, then no one will come up with the next one. The theory makes perfect sense – in theory. [. . .]
There has been a lot of innovation in football, in both offensive and defensive systems. But there has been virtually no attempt to copyright or patent these innovations. There are some serious doctrinal hurdles, but it’s not impossible to imagine the law providing protection. [. . .]
So why do football coaches continue to innovate, even when they know that their rivals will study their innovations, take them and use them? That is, why do football coaches engage in intellectual production without intellectual property?
The authors go on to characterize football as one of the industries in which innovation is best facilitated by intense competition rather than by copyright protection of new ideas. But what is interesting is that, even with the innovations of the pass-happy offenses of the past decade or so, the top teams at the highest levels of college and professional football continue to be the ones that balance an effective passing offense with a solid rushing attack that can wean time off the clock to protect a lead.
Sometimes the more things change in football, the more they remain the same.
A couple of months ago, this post reviewed the living hell that former Merrill Lynch banker James Brown had been living for the past seven years as he he attempted to salvage his reputation and career after being targeted in the now-thoroughly discredited Nigerian Barge prosecution that arose from the demise of Enron.
As that earlier post noted, after the Fifth Circuit reversed Brown’s conviction on honest services wire fraud, the DOJ had inexplicably teed up yet another trial of Brown, which was scheduled to begin next week.
Meanwhile, Brown was seeking a dismissal of the case and of his conviction on additional charges of perjury and obstruction of justice. Those latter charges arose from Brown protesting his innocence to the grand jury that indicted Brown and the other Nigerian Barge defendants on the fallacious honest services wire fraud charges.
Sort of wrong to be convicted of perjury and obstruction for saying that you’re innocent of something that is not a crime, don’t you think?
At any rate, earlier in the week, the prosecution in Brown’s case out of the blue requested a continuance of the September 20 trial setting. The government’s dubious grounds for the continuance were that Brown might win an appeal on his perjury and obstruction charges, so the District Court should wait on the outcome of that appeal so that all of the charges could be tried at one time.
After seven years, that’s a flimsy reason for a continuance, but at least it’s colorable.
However, as Brown’s opposition to the government’s motion reveals, the reason was also false. The real reason that the government was seeking a continuance was that the prosecution had no intention of prosecuting the case against Brown. In short, the government was only seeking to extend Brown’s ordeal:
In sum, the government’s motion for an indefinite continuance reveals that the government has put the Court and Brown through months of stress, anxiety and litigation over three counts it has not even intended to bring to trial. Despite being only a few days from the third trial setting, our trial preparation has disclosed that the government has not contacted any of the persons who have knowledge of the transaction and who it presented in its case-in-chief in 2004. Indeed, it has not even contacted its “star witness,” Ben Glisan, from Brown I “in years.” Nor has it contacted its lone Merrill Lynch witness, Tina Trinkle, about Brown’s trial. Trinkle was the only individual whose testimony even alleged that Brown might have participated in one internal Merrill call regarding the government’s purported criminal conspiracy.
The government’s failure even to notify its key witnesses of the long-scheduled September 20 trial suggests that the government has been using the court to run an outrageous “bluff”-demonstrating the Department’s continuing disingenuous gamesmanship with Brown’s life and liberty. No continuance shall be granted for “lack of diligent preparation or failure to obtain available witnesses on the part of the attorney for the Government.” . . . This Court must now enforce Brown’s right to a trial as scheduled and deny the government’s motion.
Not surprisingly, U.S. District Judge denied the government’s request for a continuance on Wednesday. The government then filed its motion to dismiss the case entirely shortly thereafter, which Judge Werlein immediately granted.
So, what was the government’s purpose in putting James Brown and his family through the wringer over the past seven years?
Ayn Rand’s observation about socialists who use state power to further their supposedly altruistic goals seems particularly apt:
“[T]he truth about their souls is worse than the obscene excuse you have allowed them, the excuse that the end justifies the means and that the horrors they practice are means to nobler ends.”
“The truth is that those horrors are their ends.”
Update: Larry Ribstein, who also has been appalled at the government’s conduct of this and related criminal cases for years, provides his customary keen insight to these latest developments.
David Brooks wrote about The Genteel Nation and “gentility shift” last Friday. He was addressing long-term labor market problems that have nothing to do with aggregate demand or any lack of “stimulus,” but rather with the tastes of young people making career choices. He cited the example of Michelle Obama, telling an audience of young women, “Don’t go into corporate America … become teachers. Work for the community. Be social workers. Be a nurse … Make that choice, as we did, to move out of the money-making industry into the helping industry.”
It’s an old theme and many people think of the choices before them as between being self-serving and "helping people". I am not sure what sacrifices the First Lady has had to make in her personal life in order to get on the high road, but given a platform, we hold forth — and also tell ourselves all sorts of stories about ourselves. There is always the lovely conceit that some of us are all about "helping people" and, thereby, so much better than the rest.
Labor markets provide their own signals (in terms of compensation packages as well as employment and unemployment prospects), but the problem with rhetoric such as the First Lady’s in the Brooks cite is that it nourishes the idea that we see repeated on so often that our own pay is “unfair” in light of the job’s assumed social worth.
Many public sector unions have managed to extract promises from their politician employers that these employers cannot keep. There is naturally unhappiness and resentment, but not at the employers. Rather, at the “stingy” taxpayers who just don’t get it: those who have chosen to “help people” simply “deserve” more.
Labor markets signal facts of life that challenge the “gentility” view of the world. But the gentility view fortifies the idea that market signals are "unfair" and further politicization is the way. This is the way we get street demonstrations such as the ones we saw in Paris last week. We’ll always have the barricades.
This dynamic is the other side of the coin from what leads us to ostracize famous people such as Ken Lay, Tiger Woods andRoger Clemens. We try in any way to avoid confronting our innate vulnerability, so we use myths to distract us. We rationalize that a wealthy and powerful person did bad things that we would never do if placed in the same position even though we really have no idea how we would react to such incentives. As a result, we scorn and ridicule the rich and powerful as we attempt to purge collectively that which is too shameful for us to confront individually.
Be wary of those who justify their world view on the supposed moral superiority of their cause versus how markets would reward that effort. As Gordon notes, this view assumes that market signals are unfair and that political corrections are the answer. The mob is never wrong in the moment of its action.
On one hand, the vested interests in America’s unending War on Drugs continue to rationalize the enormous cost of drug prohibition by suggesting that the alternative is worse:
Every past administrator of the 37-year-old Drug Enforcement Administration is calling on the Justice Department to sue California if its voters decide to legalize marijuana in November.
Peter Bensinger, who ran the D.E.A. from January 1976 to July 1981, said legalizing the recreational use of pot, even in one state, would be a “disaster,” leading to increased addiction, traffic accidents and trouble in the workplace.
Meanwhile, the WSJ’s Mary Anastasia O’Grady writes about the wages of the War on Drugs just across the Texas border near El Paso:
Ju√°rez is dying. Since the beginning of this year, more than 2,200 people in the city have been murdered. Since 2008, the toll is almost 6,500. On a per capita basis this would be equivalent to some 26,000 murders in New York City. Drug warriors play down these numbers by claiming that some 85% of the dead were themselves involved in trafficking. But that claim is dubious since in many of the murders-more than 90% of cases this year-there hasn’t even been an arrest. And what about the hundreds of innocents, the other 15% of the victims, that the government admits were not criminals? [. . .]
In the 40 years since Richard Nixon declared war on drug suppliers abroad-because American consumers had consistently demonstrated that they had no interest in curtailing demand-illicit drug use in rich countries has remained fairly constant. Only preferences have shifted.
A report released in June by the United Nations Office on Drugs and Crime found that “drug use has stabilized in the developed world.” Cocaine use in the U.S. has dropped in recent decades, but there is “growing abuse of amphetamine-type stimulants and prescription drugs around the world.” The report also said that “cannabis is still the world’s drug of choice.” In other words, billions of dollars in warring has left us about where we started, except, according to the report, that the indoor cultivation of cannabis is now a major source of funding for criminal gangs.
As I’ve noted many times, America’s War on Drugs is lost and it is long past time that we require our leaders to acknowledge that and end it.
Even if legalization would increase drug abuse and addition (not clear, but certainly possible), at least such a policy would allow the abusers to harm themselves rather than impose substantial risk of harm on innocent citizens.
The War on Drugs is dangerously close to becominga war on us.
I enjoyed the first big weekend of college and NFL football as much as anyone, but the probable concussion that star University of Houston QB Case Keenum suffered in the Cougars’ Friday night romp over UTEP reminded me of this Skip Rozin/Wall Street Journalarticle from awhile back:
Protecting football players from serious head injuries is making news again. Accused for years by outside critics and even Congress of dismissing the danger of concussions, the National Football League has finally installed measures to safeguard players during games and, when they are injured, to treat them more effectively.
The latest effort, a locker-room poster being sent to all NFL teams this month, alerts players to signs of concussion-such as nausea, dizziness and double vision-and urges anyone exhibiting these symptoms to be examined by a doctor. The initiative is supported by both the NFL and the players union.
The message embraces caution in what, for players, is a high-risk environment. Football is a collision sport. At the professional level, collisions occur between the biggest and fastest players and can wreak havoc. A vivid reminder of this came last week when safety Jack Tatum, nicknamed "The Assassin," was back in the news. Tatum, who passed away July 27, made a devastating hit on Darryl Stingley during a 1978 preseason game. The hit turned Stingley into a quadriplegic; no penalty was assessed.
One new rule enacted last season penalizes hits against defenseless players such as quarterbacks and wide receivers. In December, the league banned players who show symptoms of a concussion from returning to play or practice on the same day; they must also be cleared by the team physician and an independent neurologist. The biggest change came this March when the NFL replaced the doctors leading its brain- injury committee-who discredited mounting evidence linking concussions to serious brain damage-with doctors alarmed by the danger.
Welcome changes all, yet the glorification of violence remains a well-entrenched part of football.
In watching a weekend of hard-hitting football, I suspect that there are many more concussions resulting from the games than we even know about from evident injuries such as Keenum’s. As I’ve noted many times in regard to the misdirected governmental criminalization of performance-enhancing drug use, we have promoted a culture that encourages players to take these enormous health risks, but demonize them when they attempt to hedge the risk of the injuries that almost always result from engaging in such high-risk endeavors. What happens to the game of football when players start requiring the owners of that risk to compensate them for their injuries?
My sense is that the games that we watched over this past weekend may be played in a substantially different way in the not- to-distant future.
Inasmuch as Texas has always been a hotbed of innovation in football, this guest Freakonomics post by law professors Kal Raustiala and Chris Sprigman caught my eye:
