Trademark Dilution Irrelevant?

It appears that there is not a single case decided after the Trademark Revision Dilution Act (TRDA) in 2006, in which there has been a finding of trademark dilution not accompanied by a finding of trademark infringement. This cause of action had ceased to exist after the Supreme Court’s 2003 decision in Mosley v. Victoria’s Secret, which interpreted the 1996 Federal Trademark Dilution Act.

I'm not entirely convinced by this data, as three years is not a lot of time to get a case with the right facts before a court. It matters because trademark dilution by tarnishment is theoretically, at least, much more threatening to free speech than a mere trademark infringement, which is really just a subtle species of fraud (i.e. attempting to get a consumer to think that someone else made the goods or services marked). Credible legal threats to free speech can do harm, even if the matter never gets beyond the cease and desist letter stage, and hence doesn't produce any public court decisions on the matter.

How Long Are Criminal Records Relevant?

How long does someone need to be offense free without reoffending for that person to cease to be a special threat to the public?

In a review of 88,000 arrestees in New York state, Carnegie Mellon University investigators found, for example, that after about 7 1/2 years the "hazard rate" for an 18-year-old first-time arrestee for robbery declined to the same rate as an 18-year-old in the general population. For 18-year-olds arrested for aggravated assault, it took about four years to reduce the risk.

For burglary, the crossover point was 3.8 years. More details here.

After these "cross over points" ex-cons who have stayed out of trouble are actually significantly less likely to be arrested than comparable members of the general public.

Quote Of The Day

"[W]orking at a Big Law Firm is, in some ways, like being an abused child."

- From here (N.B. this is from an author who would consider a 500 person law firm like mine with more than dozen offices in many states to be "a mid-sized regional firm.")

Lutherans Do Exorcisms. Who Knew?

A cop and two other adults connected to the Lutheran Church in Australia youth camp have been charged criminally in Australia for holding a teen with stomach cramps for twelve hours to conduct an exorcism. The demon possession theory of illness still lives somewhere, apparently.

Vacation Bible Camp for Lutherans in Ohio when I was growing up was simply not that hard core. Even if the adults had wanted to do an exorcism, I am quite confident that they wouldn't be sure if it was actually a Lutheran thing, and certainly had no idea how to do one, or any inclination to experiment. Our camp counselors were more the guitar playing, long haired, kumbaya singing, finger paint project types. For that matter, neither do the local official Lutheran church authorities:

The Lutheran Church has tried to distance itself from the embarrassing affair, saying that it does not condone practices such as exorcism.

"The Lutheran Church does not endorse or encourage any actions which are abusive or which results in the limitations or freedoms of any individual," Robert Voigt, president of the Lutheran Church in South Australia [said.]

But, this is not the first time Lutherans have done this in Australia:

Joan Vollmer, 49, died in January 1993 after her husband, Ralph Vollmer, and three other members of a breakaway Lutheran sect performed an exorcism at the couple's home in western Victoria.

Maybe it has something to do with Lutherans being so much more of a minority in Australia than they are in Ohio and Michigan, where I usually encountered them. Minority religion status can heighten one's resistance to ourside opinion and increase one's need to vigorously assert one's religious identity.

Non-Unanimous Criminal Juries

Oregon is one of only two states that does not require juries to reach unanimous verdicts in criminal cases. Like Louisiana, it allows convictions by a vote of 10 to 2.

In a pair of decisions in 1972, the Supreme Court said that was all right, that the Constitution does not require states to insist on unanimity. . . .

Joshua Marquis, the district attorney in Clatsop County, Ore., said requiring agreement among just 10 jurors was efficient. “Pretty much the only difference is that we have fewer hung juries,” he said. . . .

According to the Oregon Criminal Defense Lawyers Association, most felony convictions in the state are the products of nonunanimous juries. Oddly, misdemeanor convictions still require a unanimous vote, though from a six-member jury. . . . Oregon does require a unanimous vote in first-degree murder cases, and Louisiana requires it in capital cases.

From here.

Federal felony juries, and all felony jury trials at the time the 6th and 14th Amendments were adopted, have to be and historically had to be unanimous decisions of twelve jurors. The U.S. Supreme Court has been asked to revisit its 1972 precedents in a pending Oregon case.

While most U.S. states have a right to a jury trial in both civil and criminal cases, the right is exercised much less often in civil cases than in criminal cases. The difference is particularly striking in low stakes cases. Even the most petty criminal offenses, such as traffic misdemeanors, are routinely tried before juries (usually of less than twelve people). In contrast, civil lawsuits brought in courts of limited jurisdiction (under $15,000 in Colorado) are almost never reach jury trials despite the existence of a legal right to a jury trial.

There is no federal constitutional right to a jury trial in state court, although most states, in practice, follow federal 7th amendment jurisprudence which allows jury trials in cases that would have been heard in the "law" rather than the "equity" part of the court system prior to their merger in most states (usually, in cases where money damages rather than injunctive relief is the remedy sought).

It would be very interesting to see any empirical evidence that a non-unanimous jury of ten increases the conviction rate in either Oregon or Louisiana. Prosecutors and defense attorneys both act as if there is a significiant difference, but the reality isn't clear.

Merit Promotion From Within Fails

In 1969, a Canadian psychologist named Laurence Peter encapsulated this behavior in a rule that has since become known as Peter's Principle. Here it is:

"All new members in a hierarchical organization climb the hierarchy until they reach their level of maximum incompetence." . . .

[C]ommon sense tells us that a member who is competent at a given level will also be competent at a higher level of the hierarchy. So it may well seem a good idea to promote such an individual to the next level.

The problem is that common sense often fools us. It's not so hard to see that a new position in an organization requires different skills, so the competent performance of one task may not correlate well with the ability to perform another task well.

Peter pointed out that in large organizations where these practices are used, it is inevitable that individuals will be promoted until they reach their level of maximum incompetence. The unavoidable result is the runaway spread of incompetence throughout an organization. . . .

[Researchers] simulated this practice with an agent-based model for the first time. . . they find that it leads to a significant reduction in the efficiency of an organization, as incompetency spreads through it. . . .

But is there a better way of choosing individuals for promotion? . . . [The] model shows that two other strategies outperform the conventional method of promotion.

The first is to alternately promote first the most competent and then the least competent individuals. And the second is to promote individuals at random. Both of these methods improve, or at least do not diminish, the efficiency of an organization.

From here.

Not promoting from within is actually fairly common.

The military, for example, drops from one pool for its enlisted ranks, another for its officer corps, and others to fill the ranks of its civil service and political appointee civilian bosses. Traditionally, the Secretary of Defense is not appointed from the ranks of current active duty military personnel. More officers come from war colleges or ROTC, than officer candidate school for enlisted soldiers. The military's elite special forces recently began a campaign to encourage non-traditional candidates to apply.

Similarly, hospitals have highly stratified labor pools in which promotion from one job to another higher tier job, e.g. from nurse to physician, is rare. This is true even within professions. Few primary care physicians, no matter how successful, are promoted to the higher paying and often more prestigious ranks of specialist physicians.

In education, elementary school teachers are rarely promoted to teach high school students, and high school teachers are rarely promoted to teacher in higher educational institutions.

In law, paralegals are generally not promoted to become lawyers, no matter how competent they may be.

Most businesses draw their management personnel and their rank and file workers from different labor pools. Academic study of business management and large organization management suggests that direct management of people, and indirect management of groups of people through their managers involve different skills and methods.

This kind of class stratification of employment prospects was the main response that Peter himself advocated.

Random promotion, while not common, is also not as unusual as one might expect in civic organizations. Family reunions, Rotary clubs, book clubs, and the Bahai religious denomination often employ either random promotion, or the similar technique of annual leadership rotation regardless of performance from within a small membership. My son's elementary school class rotated the job of "class president" and many other elementary school tasks are rotated in the same way. Juries are lead by foremen and women selected from randomly drawn pools, and elected from within their own ranks despite the fact that newly seated juries barely know each other or their qualifications. Contested elections for low profile political posts (e.g. state treasurer or local judge) are similarly nearly random if media coverage is only slight, as is often the case.

Unused Property Abounds

* The vacancy rate for hotels is 34.6%.

* 31.7% of the nation's manufacturing capacity is idle.

* In the second quarter of 2009, there was a 15.9% vacancy rate for office space. In Denver, skyscrapers are selling for substantially less than they cost to build. An office building in Southern California recently sold for 40% less than it cost to build in 2007. A San Francisco office tower recently sold for just 25% of what it would cost to build.

* In the first quarter of 2009, 10.1% of the nation's apartments were vacant.

* "The vacancy rate at neighborhood and community shopping centers [is] 9.5 percent... Vacancies at regional malls and super-regional malls ... [are] 7.9 percent[.]" About 8% of enclosed malls are dead by one common industry measure. The vacancy rate on Chicago's Magnificent Mile, a high end retail district, is 7.2%. Historical and international statistics also suggest that there is a serious oversupply of shopping mall real estate.


* The "homeowner" vacancy rate is 2.7%. There are 3.8 million existing single family residences for sale, and there are also about 3 million new single family homes (a ten month supply at current new home sales rates) on the market. There are about 93 million "houses, condos and co- ops in the U.S."

Any Extra Dimensions <3 Micrometers

A team of theoretical physicists and astronomers has calculated that any hidden extra dimension beyond our familiar three-dimensional space, a world known in physics parlance as a 3-brane, must be less than 3 micrometers. The researchers base their findings on the recent discovery of one of the smallest and oldest black holes ever found.

The new limit is less than half that of previous limits on the length of an extra dimension, Oleg Gnedin of the University of Michigan in Ann Arbor and his colleagues report in a study posted online June 30 (http://arxiv.org/abs/0906.5351).

Physicists since the 1920s have postulated the existence of dimensions beyond the three of space and one of time. Extra dimensions might explain, for example, why the strong nuclear force is roughly 1040 times stronger than gravity. If the gravitational force spreads or leaks out along an extra dimension, as some versions of string theory suggest, it would be weaker in the observable three-dimensional space.

In basic string theory, which describes subatomic particles as tiny vibrating loops or strands of energy, extra dimensions are far too small to be directly detected by any conceivable experiment. But some versions of string theory allow the possibility of larger dimensions whose presence could be detected by measuring the force of gravity at small distances or from the results of atom-smasher experiments or astrophysical observations.

From here.

The results further constrain string theory, the leading versions of which require ten, eleven or twenty-six dimensions, all but four of which are rendered invisible in some way. It adds to the limitations on string theory posed by the fact that no supersymmetric particles (predicted to exist by most versions of string theory) have been discovered, and other criticisms of string theory.