EPIC Report: “REAL ID Implementation Review: Few Benefits, Staggering Costs”

EPIC Report: “REAL ID Implementation Review: Few Benefits, Staggering Costs” (PDF; 450 KB)
Source: Electronic Privacy Information Center

Throughout its history, the United States has rejected the idea of a national identification system. Yet, the Department of Homeland Security continues to push forward a system of identification that has been widely opposed. The REAL ID Act mandates that State driver’s licenses and ID cards follow federal technical standards and verification procedures issued by Homeland Security. REAL ID also enables tracking, surveillance, and profiling of the American public.

May 11, 2008 was the statutory deadline for implementation of the REAL ID system, but not one State is in compliance with the federal law creating a national identification system. In fact, 19 States have passed resolutions or laws rejecting the national ID program. The Department of Homeland Security has faced so many obstacles that the agency now plans an implementation deadline of 2017 — nine years later than the 2008 statutory deadline.

Homeland Security claims that it is making strides in implementing the national ID program. Homeland Security Secretary Michael Chertoff encourages the use of the REAL ID system for a wide variety of purposes unrelated to the law that authorized the system. In an opinion column written by Secretary Chertoff after the publication of the final rule in January, he said, “embracing REAL ID” would mean it would be used to “cash a check, hire a baby sitter, board a plane or engage in countless other activities.” None of these uses for the REAL ID have a legal basis. Each one creates a new risk for Americans who are already confronting the staggering problem of identity theft.

Last year, EPIC submitted detailed comments to the DHS on the draft proposal for REAL ID. With the assistance of many experts, we attempted to address the enormous challenge in the project proposal. In the following report, EPIC details the many problems with the final plan to implement this vast national identification system. The REAL ID system remains filled with threats to privacy, security and civil liberties that have not been resolved.

New From the GAO

New GAO Reports, Correspondence and Testimonies (PDFs)
Source: Government Accountability Office
15 May 2008
+ Reports
1. Nursing Homes: Federal Monitoring Surveys Demonstrate Continued Understatement of Serious Care Problems and CMS Oversight Weaknesses
2. Workforce Development: Community Colleges and One-Stop Centers Collaborate to Meet 21st Century Workforce Needs
3. 2010 Census: Bureau Needs to Specify How It Will Assess Coverage Follow-up Techniques and When It Will Produce Coverage Measurement Results
4. Smithsonian Institution: Board of Regents Has Implemented Many Governance Reforms, but Ensuring Accountability and Oversight Will Require Ongoing Action
5. Credit and Debit Cards: Federal Entities Are Taking Actions to Limit Their Interchange Fees, but Additional Revenue Collection Cost Savings May Exist
6. Financial Audit: Congressional Award Foundation’s Fiscal Years 2007 and 2006 Financial Statements
7. DOD Business Systems Modernization: Progress in Establishing Corporate Management Controls Needs to Be Replicated Within Military Departments
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+ Correspondence
1. Depot Maintenance: Issues and Options for Reporting on Military Depots
–
+ Testimonies
1. Defense Contracting: Progress Made in Implementing Defense Base Act Requirements, but Complete Information on Costs Is Lacking, by John K. Needham, director, acquisition and sourcing management issues, before the House Committee on Oversight and Government Reform
2. Information Management: Challenges in Implementing an Electronic Records Archive, by Linda D. Koontz, director, information management issues, before the Subcommittee on Federal Financial Management, Government Information, Federal Services, and International Security, Senate Committee on Homeland Security and Governmental Affairs
3. Congressional Review Act: Applicability to CMS Letter on State Children’s Health Insurance Program, by Dayna K. Shah, managing associate general counsel, before the Subcommittee on Health, House Committee on Energy and Commerce

Agricultural Productivity in the United States

Agricultural Productivity in the United States
Source: U.S. Department of Agriculture, Economic Research Service

It is widely agreed that increased productivity is the main contributor to economic growth in U.S. agriculture. This data set provides estimates of productivity growth in the U.S. farm sector over the 1948-2004 period, and estimates of the growth and relative levels of productivity across the States for the period 1960-2004. Note that this data series has been revised with this release (see the complete documentation for details, or go to the data tables).

The level of farm output in 2004 was 167 percent above its level in 1948 for an average annual rate of growth of 1.74 percent. Input use actually declined in aggregate (labor has been departing the sector and land use has declined slightly, while capital influx has been modest), so the positive growth in farm sector output is wholly due to productivity growth. This contrasts with a 3.7-percent annual output increase in the private nonfarm sector, with productivity growth accounting for a little more than a third of the economic growth. But what exactly is productivity?

Single-factor measures of productivity, such as corn production per acre (yield or land productivity) or per hour of labor (labor productivity), have been used for many years because the underlying data are often easily available. While useful, such measures can also mislead. For example, yields could increase simply because farmers are adding more of other inputs, such as chemicals, labor, or machinery, to their land base. USDA produces measures of total factor productivity, taking account of the use of all inputs to the production process.

Tables in xls.

Secretary Kempthorne Announces Decision to Protect Polar Bears under Endangered Species Act

Secretary Kempthorne Announces Decision to Protect Polar Bears under Endangered Species Act
Source: U.S. Department of the Interior

Secretary of the Interior Dirk Kempthorne today announced that he is accepting the recommendation of U.S. Fish and Wildlife Service Director Dale Hall to list the polar bear as a threatened species under the Endangered Species Act (ESA). The listing is based on the best available science, which shows that loss of sea ice threatens and will likely continue to threaten polar bear habitat. This loss of habitat puts polar bears at risk of becoming endangered in the foreseeable future, the standard established by the ESA for designating a threatened species.

In making the announcement, Kempthorne said, “I am also announcing that this listing decision will be accompanied by administrative guidance and a rule that defines the scope of impact my decision will have, in order to protect the polar bear while limiting the unintended harm to the society and economy of the United States.”

+ Final Rule (PDF; 2.7 MB)
+ Interim Final 4 (d) Rule (PDF; 409 KB)
+ Secretary Kempthorne’s Remarks
+ Sea Ice Images Sea Ice Images
+ U.S. - Canada MOU (PDF; 114 KB)
+ Guidance from USGS Director Mark Myers (PDF; 20 KB)
+ Guidance from U.S. Fish and Wildlife Service Director Dale Hall (PDF; 1.7 KB)
+ Fact Sheet (PDF; 89 KB)

Contractor To Be Court-Martialed in Iraq

Via Scott Horton comes the news that the U.S. Marine Corps has charged an Iraqi-Canadian civilian contractor in Iraq with brandishing a knife and stabbing another contractor. The charges follow an important change to the Uniform Code of Military Justice in September 2006, which, in theory, extended the code's reach to include civilians and contractors on the battlefield. As Scott notes, there's still much we don't know here. But this case does represent a significant development in the application of U.S. law to contractors overseas, and I think there will be a lengthy court fight over whether the UCMJ can be applied to civilians in this manner.

And for Some the Future May Hold a Tap on the Shoulder

Few pleasures are more intense than that of contemplating one's ideological opponents being punished for their errors, an activity that we law professors have so far been able to indulge only in our fantasies. But the times are changing, or seem to be. Witness Philippe Sands' almost palpable delight at the prospect of John Yoo and others in the Bush administration being picked up by the police when they are traveling in foreign countries and tried for international crimes in foreign courts: "And for some the future may hold a tap on the shoulder," he purrs. Jack Balkin agrees. Sands has also been involved in a popular play in London titled Called To Account, which features a trial (actually, a pretrial hearing) of former British Prime Minister Tony Blair to determine whether his participation in the invasion of Iraq amounted to a crime of aggression under international law.

I'm all in favor of letting people live out their fantasies, but we're lawyers here at Convictions, and even our fantasies must conform to the rule of law. The principle is that American lawyers should be called to account in foreign courts if their legal advice leads to violations of international law by the United States and (as is virtually always the case) domestic courts offer no remedy. And unless we are to live in a world in which only lawyers go to jail, and not the people who actually make the decisions based on the legal advice, foreign courts are going to have to try the relevant political decision-makers as well. They will be busy.

Nuremberg established the crime of aggression, which though not yet formally incorporated in an international instrument ratified by the United States is widely believed to be a part of customary international law, bolstered by the rules of the U.N. Charter, which permit the use of military force only in self-defense or with the authorization of the Security Council. It is on this premise that Sands' play considers the indictment of Blair—from which it would follow that there should be indictments of Bush and other high-level officials in Britain, the United States, and other countries that participated in the intervention. The invasion of Iraq was not authorized by the Security Council, and it was not an act of self-defense. The crime-of-aggression argument is really not bad—impractical (for both political and jurisdictional reasons), to be sure, but in our fantasies, and on the stage, impracticality is no barrier to action.

Which brings us to the Clinton administration, which in 1999 launched an invasion of Yugoslavia on behalf of Kosovo, its renegade province, now independent. The Clinton administration failed to secure the consent of the Security Council (or even the consent of Congress) but went ahead anyway. In May 1999, the Office of Legal Counsel gave its approval in an oral opinion later memorialized in a memo issued in December 2000. The memo fails to mention that international law prohibited the invasion, perhaps because OLC had exhausted itself trying to prove that Congress had agreed to the use of military force even though the bill to authorize it was voted down. Panting and winded, it had no energy left to address international law. John Yoo, are you listening? Do you see how the pros do it? Next time, refrain from mentioning the Convention Against Torture rather than trying to explain it away.

Should these Clinton lawyers also be "called to account" (along with Clinton himself, of course, and his senior staff, and the former decision-makers and legal advisers of all other NATO countries)? We don't know whether Clinton's lawyers failed to warn him of the relevant international legal prohibitions, or did so only orally, or in a secret memo. Perhaps they gave him good legal advice that he chose to ignore, and they silently resigned their positions in protest. An investigation should be launched so that the truth can be ascertained. Subpoenas issued, witnesses corralled, suspects named. We will also need to look for any legal advice, oral or written, pertaining to other Clinton-era actions that were dubious on international law grounds—the launching of missiles against Afghanistan and Sudan, bombing tactics in Yugoslavia, and the economic sanctions against Iraq, which caused many foreseeable deaths.

Alas, it's not going to happen. International justice has achieved such perfection only in the vivid hallucinations of international lawyers. You former OLC lawyers—next time you're vacationing in Europe, don't be alarmed if you feel a tap on your shoulder. It'll just be me: Boo!

More Yoo

In a modest attempt to allow equal time, I note that Esquire magazine has posted what it calls the first interview with John Yoo since this week's release of the latest memo. You can find it here. Not that the interview sheds much light, but my favorite excerpt is when the interviewer presses Yoo on his decision to extract the pain-associated-with-organ-failure-or-death standard from an unrelated statute as a means of fleshing out the definition of the federal crime of torture.

Esquire: But at the same time, you as a human being writing that phrase -- this is not legal theory anymore. We're in the real world and its going to have a body count.

Yoo: This is unpleasant. Don't interpret what I'm saying as though I was happy to do this or eager, or I felt some satisfaction. Mainly because I had read what the British and the Israelis had gone through—they had their own struggle with this issue and they had their own judicial decisions—and I had read all kinds of articles and books about this issue. I mean, it's a difficult issue. You have to draw the line. What the government is doing is unpleasant. It's the use of violence. I don't disagree with that. But I also think that part of the job unfortunately of being a lawyer sometimes is you have to draw those lines. I think I could have written it in a much more—we could have written it in a much more palatable way, but it would have been vague.

Can't tell from this whether the greater unpleasantness for Yoo is in the topic or in the interview.

Is an Objective Appraisal of John Yoo's Work Possible?

Let me begin by saying I have respect for John Yoo. Before 9/11, his presidential scholarship was uniformly thought to be of the highest academic standard. He is still greatly respected by his colleagues at Berkeley and elsewhere. In person, he is unfailingly polite and intellectually curious. It is wrong to lay at his door all of the hubris that has been exhibited by the present administration and that led to our seriously tragic and mistaken disregard of international agreement and our deeply costly occupation of Iraq without well-conceived purpose or strategy.

While there has been a feeding frenzy of criticism directed toward his recently released 2003 memorandum, and some of that criticism is deserved or understandable, some frankly is over-the-top, and insufficiently appreciative of the law and the facts as Professor Yoo confronted them.

Geneva Conventions

First, on the Geneva Conventions applicability to al Qaeda there was virtually no one in any part of the government, presidential appointment or career public servant, who thought this Convention applied to these unlawful combatants. Justice Stevens thought differently about Common Article 3 in Hamdan, but his interpretation was hardly accepted wisdom. That makes sense then and now. Individuals who observe no dignity of human life and who, contrary to every law of war, target civilian populations have been since the time of Bracton or before outside the protections of civil society. There was some discussion, nevertheless, of whether as a policy matter the Conventions should have been extended to al Qaeda and there was considerable disagreement about how the Conventions applied to the Afghanistan and the Taliban.  Here there is reason to believe that the administration in not opting to apply the Convention committed error.  But, of course, this is wonderfully clear hindsight.  Functionally, the administration proclaimed itself to be extending equivalent humane treatment, and perhaps in the main, it did, but the photos of Abu Ghraib would leave an indelible refutation.

Better to Put It in Writing

There is reason to believe that Professor Yoo presented both sides of these difficult questions in his oral briefings to his superiors.  It is unfortunate this more balanced appraisal was not memorialized.  Recently, in Esquire, the Professor stated:  "these were not easy questions. Whether it was a war or not, the question of whether Geneva Conventions applied to al Qaeda was a straightforward question, at least to me. The policy question is much more difficult, whether they should apply to them as a matter of policy."  Professor Yoo here shows a keen appreciation for the fact that what is legally permitted is not necessarily what should be prudently done.  He shows an extraordinary appreciation for not misleading his military clients, which is somewhat remarkable, given the later, more sweeping nature of the memorandum.  Nevertheless, the Professor reports that he was concerned about the "balance" of the advice giving, asking "Is this going to degrade military discipline? Is it going to give us a bad image versus does it produce gains in security? Is it part of the message that terrorists are not going to be given the same status as people who follow the rules? It's a very difficult trade off. And then it's harder and harder because there's the question that if you don't give them full Geneva Convention protection, what are you going to give them? That's a hard question, too. I think the legal questions are much easier than those fine hard-grained policy issues. I think those are very hard questions. It's not my job to say what they should do."

Not His Job

The last point - that it was not OLC's job to set policy is very important to remember.  One wonders if the decision-makers remembered this, or if OLC should have even more strenuously than usual given emphasis to this point that is virtually a uniform recital in OLC advice giving.   It may be convenient for the fingers to be pointed at Professor Yoo, but it is not beyond reason to think that there was a fundamental confusion in the White House between what was "legal" and what was "right."  To be sure, Professor Yoo cannot be fully excused here because it is OLC's job to both make that plain and also not to overstate what is "legal" as an advocate would, and unfortunately, the memos are not the ideal on either score.

If You Can Do Better, Why Didn't You?

Professor Yoo's work has been called "slapdash" by Professor Goldsmith.  Professor Goldsmith has written an important book on his very short tenure in OLC (nine months).  I have reviewed and complimented the book in part in the forthcoming issue of the Harvard Journal of Law & Public Policy, but in fairness, Professor Goldsmith did his nation a disservice by "dropping into" the OLC role for such a short period.  He is an able lawyer, but allowing himself to use government service in this pivotal spot between two academic appointments added more than he may fully appreciate to the ill-considered advice going to the White House from DOJ generally.  Professor Yoo was Jack Goldsmith's mentor and supporter, and it is hard for him to comment beyond saying that some of his criticism is "unfair."  It is "because Goldsmith never issued an opinion of his own. He's certainly free to criticize. It goes back to unless you've actually made the hard decision yourself, then you don't really know how you think it through, what you would do. So he says "slapdash opinion," but we have no idea what he would have done, because he left."

Nobody Home

Professor Yoo relies also on the "normal" review process in the Department, but in truth, that did not exist both because of the abnormal times, the extraordinary turnover in the Office, and the strength of John's talent.  To say that the Attorney General signed off is simply not to say a great deal since those selected for even that post in this administration were more likely "friends," or saw themselves as answerable to the White House rather than the keepers of the integrity of the executive and the law.

In his book, Professor Goldsmith dwells on the statute Professor Yoo borrowed by analogy to give meaning to the often vaguely worded provisions against torture.  He does not say what source he would have used and why it was more analogous.  The phraseology "organ failure or death," was at least specific, and had been written into law by Congress.  Professor Yoo concedes that it is fair to criticize his legal analogy, but then, one has to supply something else to make things specific.  Of course, once having chosen this phraseology, with all of its attendant harshness, it should have brought home to the Professor and those who he was advising that the United States was sailing into very troubled waters.  It would likely be accused of besting the terrorists at their own awful game - of disregarding the sanctity of the human person.  It is not at all clear this was grasped that what the government was proposing to do in interrogation practice was not just "unpleasant" as the Professor put it, but except in the most extraordinary of circumstances (ticking bombs about to take out millions), unthinkable and wrong.

Law Is Not Morality

When Esquire asks if he had "any moral qualms," of course he says yes, but reverts to the law, saying "again, just because the statute says -- that doesn't mean you have to do it. You're right, there's still the moral question -- after you've answered the legal question -- whether you should do it at all."  John was relying on the usually narrow role of OLC to convey that or the balance of his memorandum, but having written in a style contrary to the usual OLC role, could that really be grasped?  As it turned out, it was not.

The Totality of the Circumstances 

The Fourth Amendment portions of the Yoo memorandum are likewise subject to misreading for similar reasons.  Again, I think it fair to note that any memorandum written within a few weeks of the fall of the twin towers would naturally view the nation as under attack and at war.  Soldiers on a foreign field of battle do not have Fourth Amendment limits on their operations.  It was logical to think that was true for domestic military action aimed at enemies or belligerents within the United States as well.  The passage of the AUMF was then, and is now, viewed as a legislative endorsement of making war on those who executed the attack against us as well as those who aided and abetted them.  What is remarkable is that two years later in 2003 the same proposition seems to have become doctrine even as the context was different.

It is also possible to fault Professor Yoo for not writing more narrowly given what he likely knew was the anticipated audience.  Statements like "Our office recently concluded that the Fourth Amendment had no application to domestic military operations," without qualification were certain to mislead non-lawyers receiving the document. In the legal context of foreign affairs which our founders painted with fine point brush in hazy gray to deliberately allow for the unforeseen, it is seldom prudent to spray paint in black and white.

The Professor relies upon Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for the purposes of military necessity.  This is plausible, but should also have been acknowledged to be scant precedent derived from considerably different facts. U.S.v Verdugo-Urquidez involved a search of the property of a foreign national that was conducted in Mexico with the authorization of the Mexican government. Obviously, there is nothing domestic about that. 

To his credit, Professor Yoo did caution that his analysis "should not be confused with a theory that the Constitution somehow does not "apply" during wartime."  But this again warranted greater explanation, since his point of reference is the civil war case of Ex parte Milligan, 1866), which had it been fully explained would have been a reminder that the Bill of Rights is fully applicable domestically in wartime to U.S. Citizens.

Of course, the Justice Department has since disavowed both memoranda, properly noting that "Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search."

When the administration gave its legal reasons for the Terrorist Surveillance Program in January 2006, it gave a far more nuanced appraisal of the Fourth Amendment, focusing on special needs exceptions and the like.

What Have We Learned?

What is the importance, then, of the recently released 2003 memorandum?  In part, it illustrates that the nation was in crisis in 2001, and the crisis mentality shaped the legal analysis being given.  What is remarkable is that this attitude continued right through 2003.  When facing what was perceived to be a profound threat of uncertain dimension with the fear of even more devastating attack, I am not prepared to say that -- in the 2001 memorandum that has yet to be released -- the legal statement and reasoning should have been more carefully given, but two years later, when the circumstances could have been more objectively assessed, the standard arguably should have been different. 

Again, I am reasonably confident that thoughtful appraisers of executive branch lawyering like Professors Dawn Johnsen and Marty Lederman share my regret that the president never staffed OLC with individuals, who could have brought to bear a longer, more mature institutional memory that would have given him the full benefit of legal advice.  It was important for a Deputy like John Yoo, with his strong conception of presidential power to be present, but it was also important to have a senior counsel heading OLC who was not in the president's usual orbit of hand-picked friends or advocates and who would have ensured that the Professor's advice was juxtaposed and tested by the diplomatic and practical thinking of the Legal Advisor at State and the General Counsels of the military branches.  Of course, it would have been especially handy if there had been a steady hand in the front office capable of synthesizing the contradictory views of this complex area and withstanding the kind of internal political skepticism directed at the OLC lawyer in the room who raises a note of caution.

It seems unlikely that a lawyer attempting to preserve the objective, non-advocacy role of the OLC tradition would have concluded without qualification on the basis of little or no direct precedent that:

"Even if these statutes were [construed] to apply to persons acting at the direction of the President during the conduct of war, the Department of  Justice could not enforce this law or any of the other crirninal statutes applicable to the special maritime and territorial jurisdiction against federal officials acting pursuant to the President's constitutional authority to direct a war. Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute w6uld be unconstitutional as applied in this context."

No doubt that is what the CIA wanted to hear, but given all the legal and policy imponderables that Professor Yoo has since acknowledged, that could not be said.

 

 

Stuck on Yoo

Of all the passages in this latest memo worthy of dissection, I still can't get past the following:

Because of the secret nature of al Qaeda's operations, obtaining advance information about the identity of al Qaeda operatives and their plans may prove to be the only way to prevent direct attacks on the United States. Interrogation of captured al Qaeda operatives could provide that information; indeed, in many cases interrogation may be the only method to obtain it. Memo, p.4 (emphasis added).

No citation to authority. No offer of any logical or factual support for the claim. No reference to administration policy documents, security analyses, military or intelligence risk assessments, or any particularly evident basis for the statements of any kind. Just Yoo.

Hard to say what bothers me most here. One possibility is just the painful internal contradiction. John Yoo (among others) has devoted so much time to trumpeting the importance of judicial deference to executive expertise. Too bad it turns out that the only "executive" expertise evident here is Yoo's own take on what might be effective in preventing future attacks. Can't particularly think of anything other than torturing captured detainees. So that must be the only way.                         

Maybe it's that the passage appears not in some foreign policy article or popular op-ed, in which citation to any supporting basis for such assertions wouldn't be expected—but rather in a legal memo, as part of a legal analysis of the president's powers as commander in chief—to which any first-year law firm associate would respond by just hitting the Alt-F8 macro demanding the author "state the basis" of the claim. Or maybe it's the entirely illusory nature of the proposition. We "may be" all about to explode. Or not. Just wanted to throw that out there as a possibility as the reader contemplates whether to buy into the otherwise, uh, unusual, legal analysis that follows.

Or maybe it's just how painfully ill-informed it sounds in the face of the actually voluminous body of pre- and post-9/11 security policy assessments (9/11 Commission Report included) listing the hundreds of ways other than custodial interrogation one might go about preventing the next attack. Or in the face of the recognition of the U.S. Intelligence Science Board that "knowledge of behavioral indicators that might assist in the detection of deception is very limited and provides little reliable information that could assist intelligence collection ... [with] current populations of interest." That is, it is entirely unclear based on present knowledge how to secure the revelation of accurate information from an individual.

At a minimum, there's no way this paragraph should do any legal work. Yet this paragraph is in no small part how Yoo gets around to defending the legality of torture. And it's part of how he gets around to saying torture should be up to the executive branch alone. So maybe what scares me most is that counterterrorism is indeed serious business—and I would really, really like to think someone other than John Yoo was minding the store.

Airlines — Traffic Continues to Slow - Falling Load Factors Hurt Profitability

Traffic Continues to Slow - Falling Load Factors Hurt Profitability
Source: International Air Transport Association

The International Air Transport Association (IATA) released international traffic data for April.

Year-on-year international passenger demand grew by 3% in April. Capacity growth of 5% saw load factors fall to 75.4%. This is a 1.5% drop from the 76.9% recorded during the same period last year and the third consecutive monthly year-on-year decline. International cargo demand growth remained sluggish at 3.7%.

April figures contain several distortions. The impact of an early Easter holiday in 2008 will have reduced comparative year-on-year traffic growth by about 2% in April. At the same time the 10% transatlantic capacity increase with the commencement of the US-EU Open Skies is estimated to have boosted global traffic by about 1%. Adjusting for these distortions and leap year, underlying passenger traffic demand increased 4% in April and the three previous months.

+ Facts & Figures

Wal-Mart Does Right by the Shanks

I want to briefly interrupt our torture memo coverage to laud Wal-Mart for finally coming to its senses in the matter of Deborah Shank. The case started back in 2000 when Ms. Shank, a Wal-Mart employee, was seriously injured in a minivan-vs.-18-wheeler traffic accident. Shank's family sued the trucking company and won. Wal-Mart then sued the Shanks under the legal theory of "subrogation" to recover the medical costs it paid. Wal-Mart won in court, and on appeal, and the Shanks' petition to the Supreme Court was denied. (And to add more tragedy to the story, the Shanks' son Jeremy was killed in Iraq in September 2006 while this matter was pending.)

As you might expect, the retailer's actions ignited a firestorm of media and public outrage. Wal-Mart defended its actions, saying "Wal-Mart's plan is bound by very specific rules. ... We wish it could be more flexible in Mrs. Shank's case since her circumstances are clearly extraordinary, but this is done out of fairness to all associates who contribute to, and benefit from, the plan." Wal-Mart's position prevailed in court. But in the end, Wal-Mart decided that the public relations costs of this suit were too much to bear. In announcing its decision to settle, Wal-Mart issued this contrite statement:

Occasionally others help us step back and look at a situation in a different way. This is one of those times. We have all been moved by Ms. Shank's extraordinary situation. Our current plan doesn't give us much flexibility, so we began reviewing the guidelines for the trust that pays medical costs for our associates and their family members.

We wanted to understand the ongoing impact of any potential changes to the trust, and ensure that any action we take is in the best interests of our associates and their family members who participate in and contribute to our plan. We have decided to modify our plan to allow us more discretion for individual cases, and are in the final stages of working out the details.

Wal-Mart will not seek any reimbursement for the money already spent on Ms. Shank's care, and we will work with the family to ensure the remaining amounts in the trust can be used for her ongoing care.

We are sorry for any additional stress this has put on the Shank family.

It's tragic that one of America's leading corporations needed such public outrage to teach it a lesson about good corporate citizenship. Just because it's legal doesn't mean it's right.

Tortured Memories—Of Yoo and Hillary—Legal Memoranda in the Shape of History

If true, the allegations that Hillary Clinton as a young lawyer assisting the congressional Watergate investigation sought to hide files, and the precedents within them, in order to deny Richard Nixon legal counsel in the context of an anticipated impeachment inquiry are once quaint and deeply troubling. The story is quaint because it is reminiscent of the well-told tales of first law students hiding materials in inappropriate places in the law library during moot court competitions. Neither Hillary's alleged misdeed nor such law school chicanery is ethical, but neither would be modernly possible given the modern electronic nature of how we access materials today, be they books or files. So much for the quaint part.

Hillary's alleged efforts to deny legal counsel to Nixon also conflicts with the position then taken by one of the most notable liberal members of the House, Don Edwards of California. Edwards had a reputation for taking brave stands against the remnants of Joe McCarthy's House Un-American Activities Committee and the FBI abuses that ironically enough would give rise to the Keith case and FISA. Edwards did not see civil liberty with a partisan glint, and he was one of the strongest voices against those in the Democratic party—perhaps we are now learning misadvised by the then Hillary Rodham—advocating the denial of  legal counsel to President Nixon in his prospective impeachment trial.

So the troubling part of this swirling story is not just that the revelation may confirm a longer and deeper pattern of prevarication beyond the Bosnian sniper story, but also that it suggests a calculated distortion of the law aimed at adversely affecting both individual right and democratic process. Tonight on the NewsHour, New York Times reporter Eric Lichtbau called the newly released John Yoo memorandum "shoddy." I think that an unfair characterization given the intelligence of Professor Yoo and an insufficiently nuanced characterization given the context of 2003 and the more careful analysis Marty Lederman is supplying on the topic on this site. It is a description that also fails to capture how ill-served the president and the executive branch have been by the unprecedented turnover and number of acting officials at the helm of the once venerable Office of Legal Counsel, which is intended not only to make tough calls that may be politically unpopular, but also to have the good sense to send back rough drafts of legal analysis or at least not circulate them for political acceptability. But however one pieces together the story of Messer's. Bybee, Yoo, Levin, Goldsmith, Bradbury (I know I must be leaving someone out) in the OLC, the claimed offense of Mrs. Clinton is not sloppy, but corrupt, work.

Given the cultural significance of Mrs. Clinton's run for the presidency, I hope the allegation proves false. It is healthier for the body politic for Mrs. Clinton to lose to Sen. Obama on the merits. If she is dispatched on character failing, it will stir up all the justified and unjustified animosities that her husband's impeachment ordeal generates in public discussion. 

There is a different account of Hillary's service in the Annual Survey of American Law. There it was written, "In 1974, while she was serving on the Impeachment Inquiry staff of the Judiciary Committee working on the Watergate proceedings, Hillary Rodham was Sara Ehrman's houseguest for nine months." As Ehrman tells it, "She was brilliant, she was a star, she could have done anything in Washington."

It would be most unfortunate were "anything" now to have a much different meaning than what was intended by the Survey's laudatory profile—namely, in fact, she did anything she wanted, including putting herself above the law.

The Yoo/Chertoff/Ashcroft Memo?

I've now completed reading the March 14th OLC opinion. As you might expect, there is a great deal within it that warrants very careful attention and analysis. There is nothing like it in our long legal history, as far as I know. After all, how often is it that a Department of Justice memo is issued that matter-of-factly argues that the commander in chief can authorize pouring corrosive acid on a detainee—can authorize cutting out a tongue and poking out an eye —nothwithstanding a statute that would prohibit that very conduct?

I think what I'll do is to publish a series of numbered posts (this is No. 4—Numbers 1-3 are at Balkinization), each centering on a discrete topic or portion of the memo. My reactions must, of course, be tentative and preliminary: I have not yet had the time to research most of these questions or to give them the attention (some of them) might deserve. But I hope that by the end of the endeavor, we'll be able to see clearly just how radical and extraordinary this memo was.

Before I start in on the memo itself, however, I'll begin with a handful of posts about process and ramifications rather than the specific substantive issues raised.

Continue reading ...

Convictions Poetry Slam: Entry No. 2

Kudos to Berkeley 2L Josh Keesan for rising to the challenge of nominating "law poetry" for the National Poetry Month-long Convictions Poetry Slam announced yesterday. Josh's entry fits neatly within Slam example No. 2, "poems about law or about law's effect on society." It's "Law Like Love," written by W.H. Auden, the poet who was born in England in 1907, became a U.S. citizen after serving in the Spanish Civil War, and died in Vienna in 1973.

The full poem, perhaps a wee bit long for a blog, can be read here (along with a great comment thereafter). Let me proffer a few choice stanzas:

Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.

....

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I've told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

....

Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyway:
Like love I say.  

Like love we don't know where or why,
Like love we can't compel or fly,
Like love we often weep,
Like love we seldom keep.

Great stuff, Josh; thanks. The erstwhile-student-of-Sherman-Act-remedies-in-me loves the "treble tongue" metaphor. Now: Who among my fellow Convicted is ready to take from Josh the Poetry Slam baton?

Barna Poll: Catholics, Evangelicals, Asians Least Likely to Divorce

A Barna poll released March 31 finds:

"In addition to finding that four out of every five adults (78%) have been married at least once, the Barna study revealed that an even higher proportion of born again Christians (84%) tie the knot. That eclipses the proportion among people aligned with non-Christian faiths (74%) and among atheists and agnostics (65%). . .

The study showed that the percentage of adults who have been married and divorced varies from segment to segment. For instance, the groups with the most prolific experience of marriage ending in divorce are downscale adults (39%), Baby Boomers (38%), those aligned with a non-Christian faith (38%), African-Americans (36%), and people who consider themselves to be liberal on social and political matters (37%).
Among the population segments with the lowest likelihood of having been divorced subsequent to marriage are Catholics (28%), evangelicals (26%), upscale adults (22%), Asians (20%) and those who deem themselves to be conservative on social and political matters (28%).

Born again Christians who are not evangelical were indistinguishable from the national average on the matter of divorce: 33% have been married and divorced. The survey did not determine if the divorce occurred before or after the person had become born again. However, previous research by Barna has shown that less than two out of every ten people who accept Christ as their savior do so after their first marriage. . ."

JUST ROOMMATES: Boston Globe

...Now, some colleges are crossing the final threshold, allowing men and women to share rooms. At the urging of student activists, more than 30 campuses across the country have adopted what colleges call gender-neutral rooming assignments, almost half of them within the past two years.

Once limited to such socially liberal bastions as Hampshire College, Wesleyan University, and Oberlin College, mixed-gender housing has edged into the mainstream, although only a small fraction of students have taken advantage of the new policies so far. Clark and Dartmouth universities introduced mixed-gender rooms last fall, and Brown and Brandeis announced plans last month to follow suit.

The University of Pennsylvania, Skidmore and Ithaca colleges, and Oregon State University also allow roommates of different genders. Students at New York, Harvard, and Stanford universities, among many others, are calling for gender-blind dormitory rooms.

"It's definitely a growing movement on campuses across the country," said Denise Darrigrand, dean of students at Clark, where about 30 students are living in mixed-gender rooms. "It's a new world, and gender has taken on all kinds of new definitions. It's about being more inclusive, and it's about keeping pace with the times." ...

Supporters hail the trend as a key advance for homosexual and transgender students that eliminates a gender divide they see as outdated, particularly for a generation that has grown up with many friends of the opposite sex. Traditional rooming policies, they say, infringe upon students' rights and perpetuate gender segregation. ...

Scores of colleges have established gender-neutral bathrooms and specific housing for gay, lesbian, and the small number of transgender students, and some already allow male and female undergraduates to live together in on-campus suites and apartments. Most maintain single-sex floors as an option for students, however, and for practical and moral reasons have been reluctant to allow male and female students to share a room.

But a range of students are pressing administrators to eliminate gender altogether as a factor in student housing. These include gay students who feel more comfortable living with the opposite sex and transgender students who don't identify as either sex.

It also includes straight students who want the option of choosing to live with members of the opposite sex as friends. Students say that although administrators and parents may perceive gender-blind housing as essentially sanctioning sex, the vast majority of mixed-gender roommates are platonic. Their living situations are about mutual compatibility, not romance, they say.

more

YOUR EGGS, MY UTERUS: SHARED MOTHERHOOD: The Globe and Mail

When Melanie Parish and Mel Rutherford decided to have a baby together, both women wanted to have a biological connection to their child.

So, four years ago, they harvested Ms. Rutherford's eggs, inseminated them with a donor's sperm through in vitro fertilization and implanted the embryos into Ms. Parish's uterus. Today, Ms. Rutherford is the genetic mother and Ms. Parish is the gestational mother of twin three-year-old boys -- and they both feel equally "related" to their kids.

"For me, motherhood is about carrying the baby," says Ms. Parish, an executive coach living in Hamilton. "For her it is about being genetically connected."

It's a new shared-motherhood model that's increasingly being considered by same-sex couples, says Rachel Epstein, co-ordinator of the LGBT Parenting Network at the Sherbourne Health Centre in Toronto. ...

Though their daughter was born to Jen and their son to Kaye, genetically the kids are full siblings. For Jen, that's not so important. "Genetics for me is scientific," she says. "Our family is not based on genetics."

Kaye feels slightly differently. "I wanted them to have that connection," she says, "of feeling they're connected to each other and to us."

more

THE CURIOUS LIVES OF SURROGATES: Newsweek

...In the course of reporting this story, we discovered that many of these women are military wives who have taken on surrogacy to supplement the family income, some while their husbands are serving overseas. Several agencies reported a significant increase in the number of wives of soldiers and naval personnel applying to be surrogates since the invasion of Iraq in 2003. At the high end, industry experts estimate there were about 1,000 surrogate births in the United States last year, while the Society for Assisted Reproductive Technology (SART)—the only organization that makes an effort to track surrogate births—counted about 260 in 2006, a 30 percent increase over three years. But the number is surely much higher than this—in just five of the agencies NEWSWEEK spoke to, there were 400 surrogate births in 2007. The numbers vary because at least 15 percent of clinics—and there are dozens of them across the United States—don't report numbers to SART. Private agreements made outside an agency aren't counted, and the figures do not factor in pregnancies in which one of the intended parents does not provide the egg—for example, where the baby will be raised by a gay male couple. Even though the cost to the intended parents, including medical and legal bills, runs from $40,000 to $120,000, the demand for qualified surrogates is well ahead of supply.

more

The Opium Brides of Afghanistan

From "The Opium Brides of Afghanistan," Newsweek, March 29, 2008:

...Afghans disparagingly call them "loan brides"—daughters given in marriage by fathers who have no other way out of debt. The practice began with the dowry a bridegroom's family traditionally pays to the bride's father in tribal Pashtun society. These days the amount ranges from $3,000 or so in poorer places like Laghman and Nangarhar to $8,000 or more in Helmand, Afghanistan's No. 1 opium-growing province. For a desperate farmer, that bride price can be salvation—but at a cruel cost. Among the Pashtun, debt marriage puts a lasting stain on the honor of the bride and her family. It brings shame on the country, too. President Hamid Karzai recently told the nation: "I call on the people [not to] give their daughters for money; they shouldn't give them to old men, and they shouldn't give them in forced marriages."

All the same, local farmers say a man can get killed for failing to repay a loan. No one knows how many debt weddings take place in Afghanistan, where 93 percent of the world's heroin and other opiates originate. But Afghans say the number of loan brides keeps rising as poppy-eradication efforts push more farmers into default...

Domestic Partners Win Benefits in AZ

From "Domestic Partners in Ariz. Win Benefits," AP, April 1, 2008:

PHOENIX (AP) — A panel in Arizona, where voters once turned down a constitutional ban on gay marriage, approved a plan Tuesday to provide taxpayer-subsidized health coverage for the domestic partners of state employees and retirees.

The Governor's Regulatory Review Council, which has the final say over many agencies' proposed rules, voted 4-0 to approve changes floated by the Department of Administration with support from Gov. Janet Napolitano, a Democrat. Some Republican legislators opposed the move.

Dependents of domestic partners also will qualify. Employees will be able to sign up for benefits as of Oct 1...

EU Court Ruling on Same-Sex Unions

From "EU backs gay man's pension rights," BBC, April 1, 2008:

A gay man in Germany may be entitled to his dead partner's pension following a ruling by the highest court in the EU.

[The man's] partner died in 2005 but the pension fund refused him a widower's pension and the case was sent to the European Court of Justice (ECJ).

The court ruled that refusing a pension was direct discrimination if the partnership was comparable to marriage...

The court based its ruling on an EU directive which states that there should be no discrimination on the grounds of sexual orientation.

Although German law considers only heterosexual unions as marriage, the ruling makes it clear that any country in the EU that gives same-sex couples rights equivalent to marriage should treat the two as comparable...

[One of the man's lawyers] said the ruling would have significant repercussions for the UK and Scandinavia where same-sex partners had "mirror institutions" to marriage, rather than French-style civil contracts...

GAY MARRIAGES IN THE EU

• Full marriage recognised: Spain, Netherlands, Belgium
• Legal partnerships similar to marriage: Germany, Sweden, Denmark, UK, Czech
  Republic, Slovenia, Hungary, Finland, Portugal
• Civil contracts: France, Luxembourg
• No provision: Austria, Baltic states, Cyprus, Greece, Malta, Romania,
  Bulgaria, Italy, Ireland, Poland, Slovakia

Marriage Algorithm Creator Dead at 86

From "David Gale, Who Created Marriage Algorithm, Is Dead at 86," NY Times, March 31, 2008:

...[Mathematician David Gale] was widely recognized for work on the so-called stable marriage algorithm, a concept he developed in the 1960s with the economist and mathematician Lloyd S. Shapley.

The problem begins with the assumption that equal numbers of men and women are in search of potential partners. Is it possible to pair the individuals in such a way that all achieve a satisfactory match? The solution developed by Dr. Shapley and Dr. Gale was to have each participant rank the members of the other sex in terms of desirability. The researchers then developed an algorithm that directed each participant to his or her next choice of partner, if rejected by the first or second choices.

The result was that everyone would be matched in a "stable" pairing, a term meant to suggest that no two members of the opposite sex would rather marry each other than the ultimate partner provided by the algorithm.

The findings were published in 1962 in The American Mathematical Monthly, and were soon recognized as having broad applications to other situations...

Ivy League Abstinence

From "Students of Virginity," NY Times Magazine, March 30, 2008:

...The Ivy League's abstinence clubs began emerging several years ago about the same time as student sex blogs, sex columns and, at Harvard and Yale, student sex magazines…[T]he Princeton club [was] the first to form in the Ivy League in 2005...

[The Princeton club members so admired the logic of Catholic thinker Elizabeth Anscombe, the philosopher and student of Ludwig Wittgenstein, whose arguments] against premarital sex are as impressive as they are difficult to summarize, [that] they named their society after her...

[S]tudents at the Massachusetts Institute of Technology were the first to follow with another Anscombe Society...

The Harvard abstinence club came next, in 2006...[The founders] decided that their club would focus on the issue "most immediately relevant" to people on campus — premarital sexual abstinence — and would try to persuade people toward it with arguments less philosophical than scientific...

Does Gay Marriage Ban Invalidate Custody Agreement?

In this Ohio case, (blogged earlier today by Imapp staff,)I am inclined to say no.

An Ohio woman says the state's ban on same-sex marriage is grounds for barring her ex-partner from sharing custody with her son....
The dispute over custody began in 2005 after the women ended their relationship.

After their son was born in 1996, both women parented him. In order to ensure that Leach had a protected legal relationship with the child, the two women signed a joint custody agreement. Such agreements were approved by the Ohio Supreme Court in 2001.

That same year an Ohio court approved the joint custody agreement stating they would share custody.

After Leach and Fairchild broke up, Fairchild sought to terminate the custody agreement, citing the 2004 state amendment limiting marriage to opposite-sex couples.

I don't particularly approve of same sex parenting. But that is not the issue here. These women entered into an agreement (which excluded the bio dad, of course, but never mind.) That explicit agreement sets this case apart from marriage. In a marriage, both members of the couple are assumed to be the parents. That presumption has been in place for centuries, precisely because it is a safe presumption for opposite sex couples. I think we would all be far better off if same sex couples handled their relationships through a series of contracts, rather than trying to rewrite the presumption of paternity into a generic "presumption of parentage."

In this case, the two women did exactly what I think they should have done, and what all same sex couples ought to do: they signed an explicit agreement regarding the upbringing of this child. One of them now wants to set that agreement aside, because of strains in their relationship. I don't think the court should help her renege.
Cross-posted at my personal blog.

Woman Argues OH SSM Ban Bars Ex From Sharing Custody

From "Woman Argues Ohio Anti-Gay Amendment Bars Ex From Sharing Custody," 365Gay.com, March 26, 2008:

(Columbus, Ohio) An Ohio woman says the state's ban on same-sex marriage is grounds for barring her ex-partner from sharing custody with her son.

Thursday the Court of Appeals will hear her case. Last June a judge in Columbus ruled that the amendment has no bearing on a signed agreement between [the two women] that they would share custody of the boy, now aged 11...

In addition to banning same-sex marriage the amendment, known as Issue 1, says the state "and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."...

Whichever way the court rules the case is likely to be appealed to the state Supreme Court...

New Study: 45% of UK Marriages Will End in Divorce

From "Half of marriages 'will end in divorce,'" 24dash.com, March 27, 2008:

Nearly half of all marriages will end in divorce, according to a study published today [on p.28 of the spring issue of Population Trends].

About 45% of marriages will not survive if current divorce rates continue - with almost half of these divorces happening before the couples reach their 10th anniversary.

The study by the Office for National Statistics (ONS) [ONS news release here] is published just a day after reports that marriage rates have fallen to the lowest level since records began.

Today's report says the proportion of marriages ending in divorce by the 50th anniversary has increased from 34% in 1979/80 to 45% in 2005...

Deal Review: SPAVA Coffee Company

(Inspired by the Social Capital Index located here on xigi.net, two analysts are posting their take on the enterprises listed in Deals in Play. Deals in Play is a new feature of the Social Capital Index that lists social ventures actively seeking capital. Following is Jason Rissman’s analysis of one of these enterprises.)

SPAVA COFFEE COMPANY

By Jason Rissman

Healthy coffee. Why didn’t I think of that?
Serving caffeine addicts and aficionados that have demonstrated a clear willingness to pay premiums for upgraded cups of joe, Spava’s poised to be the next big thing since non-bleached, stone ground 100% whole wheat sliced bread. I’ve long suspected that half of Starbucks customers are either on the way to or from the gym. Seriously, high end coffee seems to be a last standing vice amongst health conscious people, and Spava’s goal of introducing “organically grown, naturally fortified coffee for healthy living” looks dead on. While demand might not exist yet for healthy coffee, neither did it for bottled or vitamin-enhanced water.

Spava has distribution nationwide at HEB, Publix, Kings Market, and selected Whole Foods and Kroger stores. The team looks very solid. So what could stop it?

My main concerns for Spava surround is intellectual property and its competition. Building wider national distribution overnight will be difficult if a better known brand comes to town with a similar product. IP protection might be its only defense against entering rivals until its own brand becomes well known. Still, within the upscale healthy living space there always seems to be room for new names (and higher prices).

As for a social impact assessment, I suppose that depends on your view of caffeine. Is Spava aiding and abetting a guilt-free but unhealthy indulgence? Or are they just making an inevitable coffee habit a bit healthier? Either way, I can already hear the chatter by the elliptical machine: “Sure I have four cups a day… but the last one is SPAVA!”

Deal Review: ScholarCentric

(Inspired by the Social Capital Index located here on xigi.net, two analysts are posting their take on the enterprises listed in Deals in Play. Deals in Play is a new feature of the Social Capital Index that lists social ventures actively seeking capital. Following is Jason Rissman’s analysis of one of these enterprises.)

SCHOLARCENTRIC

By Jason Rissman

Sad, surprising fact: Every nine seconds a student drops out of an American school. Another: Over 30% of all public school students drop out before graduating high school. For some minority groups the dropout rate is even worse: close to 50% for Hispanic, Native American, and African American students. The overall impact of this dropout rate is simply unfathomable.
Enter Scholar Centric, a for-profit educational business that provides drop-out prevention curriculum, assessment and professional development services to middle and high school students. The company reports early successes, including 64% rise in retention, 137% improvement in school attendance, 52% improvement in grades and 33% increase in classes passed.

While its results with students are impressive, Scholar Centric might face an even more challenging task in selling to schools with very limited resources. The company offers an online fundraising guide with grant writing tips and lists of grants. Hopefully this strategy will be combined with strong PR and sales efforts. If the company can continue to document such impressive results it seemingly will have a compelling story to tell. With increased brand recognition, Scholar Centric could see shortened sale cycles and more inbound leads. While partnering with other organizations serving at risk students might be difficult as they could be competing for the same scare school dollars, such an effort could further demonstrate the impact of Scholar Centric’s program and help raise awareness for the company. For instance, partnering with College Summit could help develop noteworthy case studies and raise the profile of both organizations as parts of a comprehensive strategy to maintain and motivate students. Does anyone know of other possible partners?

Whatever its marketing tactics are, the acquisition cost of new clients seems to be an important metric to track.

The Scholar Centric team is a definite strength. They bring extensive experience within the educational space, especially in developing products for students.

Meanwhile, local support could only help. Is anyone involved in a local school that might want to learn more? Get in touch at 800-995-8779 or info@ScholarCentric.com.

Deal Review: Oso Eco

(Inspired by the Social Capital Index located here on xigi.net, two analysts are posting their take on the enterprises listed in Deals in Play. Deals in Play is a new feature of the Social Capital Index that lists social ventures actively seeking capital. Following is Jason Rissman’s analysis of one of these enterprises.)

OSO ECO

By Jason Rissman

Wouldn't it be nice if there was a fun, easy way to find sustainable products and shop more responsibly? OsoEco is a new company, still in private Beta testing, that thinks it can help. While I won't give away some of their unique features, OsoEco's formula is simple: Layer a green filter onto the proven social shopping mold (ala Kaboodle) and there we have it, smart shopping made easy.

While I do think there is opportunity in the green e-commerce space, I also think there are sizable challenges that OsoEco will face. Here's a couple that stand out for me:

1) First, its no easy feat deciding which products are green, greenest, or even green enough. Until we have a more standardized audit of production processes and of the carbon footprint of individual products, comparing mainstream companies and products is a tricky game. This isn’t to minimize the recent eco-boom of small companies with products specifically designed to have minimal impact, and I think the company has an opportunity to connect these smaller companies with buyers. Even a short time on their beta site introduced me to several interesting products. If the company can successfully recruit an eager community of sustainable shoppers to post product recommendations, OsoEco could become a great resource for finding products that at least seem green to others. Peer validation, however, is a far cry from impact assessment. I hope OsoEco can provide enough information so this is more than a way to feel good about buying questionable products.

2) As demand for green products grows, so will competition for OsoEco. This will include other social shopping sites or green product sites, but also…

- Green content sites that often include product reviews (Treehugger, e-commerce enabled Lime, or RiverWire - which recently raised $1.5m)
- Large e-commerce sites (Amazon, Buy.com) which could include more green products and information
- Direct retailers that could easily start including more green products. For instance, stores ranging from Wal-Mart to Crate & Barrel already highlight organic products
Will OsoEco’s content and community set it apart and provide a barrier to entry against other shopping choices? Perhaps close partnerships with existing organizations could help.
A question I’m left with is how far are we from a more comprehensive green ratings system? Here’s one idea for a eco-nutrition label for products. Greener One has launched their own independent rating system. Am I wrong, or are we in need of some standards?

Deal Review: Zanadu Technologies

(Inspired by the Social Capital Index located here on xigi.net, two analysts are posting their take on the enterprises listed in Deals in Play. Deals in Play is a new feature of the Social Capital Index that lists social ventures actively seeking capital. Following is Andrea McGrath’s analysis of one of these enterprises.)

ZANADU TECHNOLOGIES

By Andrea McGrath

Zanadu Technologies first began in 2003 with a focus on the deployment of wireless broadband network services in emerging economies. During the past 5 years, as it developed its technology business to service clients ranging from governments, corporate and retail - it began to see the need - and the opportunity - to utilize increasingly available technology - such as broadband, mobile, and hand held devices - to provide increased and improved financial services to poor and largely "unbanked" communities.

Zanadu now aspires to deliver financial services through a secure, mobile, low cost, and scalable model. Solid numbers on the markets, infrastructure growth, and company strengths make this opportunity an interesting one. For example, in terms of access to 'traditional' financial products, recent World Bank data on three larger economies - Mexico, Columbia and Brazil - showed that 65-85% of urban households do not hold any kind of deposit account. While the flow of funds within many developing countries is low - there are a few case studies now of some 'pioneering' m-banking projects in the Philippines, Kenya and South Africa. Another demand signal is that the flow of funds to developing countries in the form of remittances continues to increase (the World Bank estimated recorded remittances at $240 Billion for 2007). In terms of infrastructure to support financial services, the numbers of mobile users and internet users globally continues to grow at a healthy rate. In addition to the mobile banking potential - Zanadu's web based platform has potential to tap the growing social networks getting involved in financial transactions - be it donations, loans, etc.. in both the for-profit and nonprofit sectors. Could social networking increase the use and volume of fund flows in developing economies (increasing transparency, building understanding of new services). As an organization with 5+ years experience in emerging economies, Zanadu has an opportunity to build on its developed relationships and core skills in technology services and expand into the potential of mobile and internet banking services to the still large, unbanked communities globally.

Dialogue Questions
As public information on the organization remains somewhat limited - the dialogue questions for this idea are somewhat more specific/related to details about the market and services - such as:
Services - what services will Zanadu provide (i.e. payments to merchants and others? loans/micro loans?)
Revenue model from transactions - what are rates and volumes needed?
Regulatory/political issues in terms of licensed mobile/internet service providers
IT: Any security issues with Zanadu moving from current business into financial transactions?

Social Impact
Strengthening financial sector can have substantial impact on economic development/poverty alleviation (from the Ecomomist (Nov 15, 2007): Leonard Waverman of the London Business School has estimated that an extra ten mobile phones per 100 people in a typical developing country leads to an extra half a percentage point of growth in GDP per person)
Increased access to funds also has potential to spur or encourage increased entrepreneurship
Potential to provide LOW cost access and transparent access (remittances and credit)
Networks via web has potential to develop partnerships for funding and development opportunities

Deal Review: Jewish Community Investment Initiative

(Inspired by the Social Capital Index located here on xigi.net, two analysts are posting their take on the enterprises listed in Deals in Play. Deals in Play is a new feature of the Social Capital Index that lists social ventures actively seeking capital. Following is Andrea McGrath’s analysis of one of these enterprises.)

JEWISH COMMUNITY INVESTMENT INITIATIVE

By Andrea McGrath

The Jewish Funds for Justice are offering a new investment opportunity - specifically looking to increase the participation of the American Jewish community in community investment notes. The JFSJ Community Investment Initiative is being launched in partnership with the Calvert Foundation and allows individuals to purchase notes of $1,000 or more. Investors have choices ranging from the structure (rates of return ranging from 0% to 3% and a loan period from 1 and 10 years) to the target investments (the can direct investments in 1 of 8 regions in the US themselves or let the Calvert Foundation allocate their funds).

This appears to be a good investment on multiple levels: a low minimum investment threshold to attract diverse funding base and a solid investment partnership - with the Calvert Foundation bringing its expertise and experience in community investment notes and the Jewish Funds for Justice bringing its education and advocacy skills. It also brings a potentially strong new market to community investment with its own membership and with the larger American Jewish community.

Dialogue Questions
The JCF raises interesting questions (possibilities) on:
potential alternative channels to grow community investments
opportunity to learn from partnering with an advocacy/membership organization - and particularly a faith based and/or culturally rooted organizations as a way to build awareness of alternative investments and CDFIs (and increase capital)

Social Impact
Increased community development capital
Increased awareness of alternative investments (such as structured notes)
New insight on effective partnerships to educate and advocate socially responsible investments

Deal Review: Pro Bono Manager

(Inspired by the Social Capital Index located here on xigi.net, two analysts are posting their take on the enterprises listed in Deals in Play. Deals in Play is a new feature of the Social Capital Index that lists social ventures actively seeking capital. Following is Andrea McGrath’s analysis of one of these enterprises.)

PRO BONO MANAGER

By Andrea McGrath

Pro Bono Net is a nonprofit organization focused on improving access to justice for millions of poor people facing legal problems without legal assistance. Their core activities involve innovative/improved use of technology in the nonprofit legal sector, facilitating collaboration among advocates working on similar sector issues, and increasing the number and impact of pro bono lawyers. Their main programs include:

Probono.net - online resource for attorneys, law professors, students, and social services advocates; also connects pro bono attorneys with opportunities, training events, mentors, and searchable libraries (45,000 members)
LawHelp.org - online resource helping low and moderate-income people find free legal aid programs in their communities, answers to questions about their legal rights, court information, links to social service agencies, and more ((the site won the 2007 Webby Award for Best Law site)
Online Document Assembly - centralized effort to provide online legal document assembly for poverty law and court access to justice programs nationally; also increases access to resources for self-represented litigants and improves efficiency for legal aid, pro bono and courts-based access to justice programs

Pro Bono Net seeks funding for one of its new programs - Pro Bono Manager - which was started with $900,000 in grant capital from the Gates Foundation and Booth Harris law firm. Pro Bono Manager is a hosted web application that helps increase the capacity, effectiveness and efficiency of law firms’ pro bono programs. The site integrates content for pro bono lawyers on training events, volunteer opportunities and news with key tools for law firms such as reporting, knowledge management and lawyer matching tools that draw on data from firm’s internal systems (personnel, billing, time keeping, etc..) It will include firm-branded portals connecting firm lawyers to a national network of pro bono and legal aid organizations, and case tracking and engagement reporting tools.

This service looks like a good bet! Organizational, market, and team strengths include:(1) Value Statement: pro bono net has developed a solid 'value' proposition for law firms in terms of time/money saved, increased efficiencies and case/impact reporting, and their potential to impact clients' critical goal of lawyer retention; (2) Hire and Retention Tool: according to industry surveys, a law firm's pro bono services are ranked #2 in importance (after revenue) in how lawyers rate law firms; (3) Market Spend: law firms are spending $5 BB annually on technology; (4) Market penetration: pro bono net has initial competitive advantages through its law firm penetration (clients include 3 of the top 10 firms) and public interest law penetration (including strong (and somewhat proprietary) public interest legal content); (5) Channel Partners: pro bono net has developed partnerships in sales/marketing channel with ALM and LexisNexis.

Dialogue Questions
What is the potential of an earned income strategy (law firms as clients)?
Would earned income stream affect its philanthropic supporters?
Any possible thoughts on exit strategies for business when it develops

Social Impact
Revenue from this business model could dramatically increase the financial support for Pro Bono Net's CORE nonprofit programs - focused on increasing the number of low income people accessing legal assistance, supporting a community of public interest lawyers and organizations providing this assistance
Value of the product to law firms - and pro bon lawyers (supply) could increase both the time given and the value/impact of pro bono legal services

Deal Review: Calabash Music

(Inspired by the Social Capital Index located here on xigi.net, two analysts are posting their take on the enterprises listed in Deals in Play. Deals in Play is a new feature of the Social Capital Index that lists social ventures actively seeking capital. Following is Andrea McGrath’s analysis of one of these enterprises.)

CALABASH:
Tune Your World

By Andrea McGrath

Think KIVA for the global music community! Calabash is creating an online microfinance/social networking platform to help independent recording artists worldwide (approx 30,000) attract funding for their recordings directly from fans. It also helps increase their ability to engage with their natural fan bases! Different from Kiva, however, these are not loans but 'donations' of support - coupled with 'high touch' donor services and benefits such as receiving news from he musicians and downloading advance copies. Fans can also download free tunes and purchase downloads from artists for .75 - .99 cents (iTunes is generally .99). Musicians receive approximately 50% of net revenues (revenues - fees) and retain ownership of the copyrights and all other rights in any content and material submitted.

The appeals are numerous for fans and musicians - social networking for music fans, support for small, independent artists, and a platform for global musicians similar to fair trade markets for indigenous products. The social networking site includes spotlights on current projects/artists to fund. Calabash has launched its own "One True Fan" fundraising campaign - looking to find 1,000 "true fans" to donate $100 each to help pay for its development costs to launch their musician micro-funding platform for artists globally. The team is currently working with 2500 artists with goals to reach 10,000 artists - and 100,000 fans - this year (2008). Helping it reach these goals, Calabash is expanding its media company partnerships - including Link TV, Afropop Worldwide Global Rhythm, Brazilmax and Mondomix - and an exclusive music service provider contract with National Geographic.

I love this idea!! The social networking possibilities seem ripe and the team is actively looking to natural partners such as MySpace (fan-artist connection) and iTunes (for distribution). While Calabash uses similar language to microfinance - and actually use Kiva as a comparable - the funds raised are donations to the artists rather than loans. That said - they seem to be doing a great job in terms of creating/marketing a true 'exchange' of value (rather than a donor-recipient mentality) - in that fans who donate get a variety if value-adds from both the artist and Calabash - as well as the opportunity to direct their funds in a meaningful, specific way (growing popularity of this "citizen philanthropy" is being developed well with Kiva and DonorsChoose)

Dialogue Questions
Questions about the markets: independent artist music industry, music download business, etc..
Competition: iTunes and other sites for free music
Revenue model: Calabash current funding appears to come from fees from music sales, some advertising (Google ads on certain pages) and from media partnerships? Curious to see

Social Impact
Could increased marketing and exposure for smaller, global musicians actually produce an 'exit' for previously unfunded artists to more institutional funding from the industry?
Could Calabash have a 'systemic' impact on how people access music, how music is supported, how global audiences can have dramatically improved access to global music (and societal benefits from that)?

The downside of metrics

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Originally uploaded by k masback

The worst news from the Skoll World Forum was from another investor. They were trying to co-invest with a venture philanthropy fund, but found two significant barriers; one that fund does not co-invest, nor release its due diligence reports to even other like-minded institutional funders.

Worse was that this fund had made the social enterprise sign an exclusive deal; they would not take funding from another fund. The reason, it seems, is metrics run amok; they only way to make sure they can measure their impact is to try to restrict other impacts on the enterprises. So less good gets done, less growth of the mission and the company happens in the name of being able to accurately measure and report.

The enterprise, for its part, is looking into going around the restriction by spinning out another entity that investors can take part in. I can’t say how repugnant I find this. Capital needs to learn to flow together, but some seem more intent on creating walled gardens to prove a counter productive point.

World Clock: a dashboard for the Planet

Susan Sanderman of Denver just forwarded this fascinating World Clock that shows the current status of major global health, environmental and social statistics, updated in real time. You can see the rate of population growth, new cases of disease, injury, death, biodiversity loss, marriage and divorce…. It's like a (rather depressing) impact dashboard for the Planet!

This kind of 'impact context' should be a touchstone for any impact analysis– if focused down to the region where a company or organization does its work, it makes a great starting point for what the "addressable market" is in terms of any of these social or environmental issues. Working to prevent biodiversity loss? Malaria? Drowning? Use your impact analysis to say not just, “We're eradicating X instances of the bad thing,” but also, "Here's how much our solution will slow it from the current rate of loss." That makes it MUCH more meaningful.

World Clock's makers compiled it from highly credible sources of statistical datasets, but they have not verified any of it and it may be spotty in parts, so it would be worth verifying if you use it.

China says 35 arrested in Olympics bomb plot

Authorities arrested 35 people in a predominantly Muslim region of China for planning "violent terrorist activities" involving the Summer Olympic Games, the Public Security Ministry said Thursday.

Restaurant etiquette 101

Here are some strategies for dining out, from scoring a table to sending back food.

What could stop your house from selling

Pat Junod knows why this home in an Atlanta suburb has been sitting empty for months. It isn't the market. Even during this nationwide downturn there are still plenty of potential buyers. So what is it?

Mugabe, rival to attend crisis summit

President Robert Mugabe will attend a summit of southern African leaders this Saturday to discuss the electoral and political crisis in his beleaguered country.

Hip-hop meets ballet in Big Boi's 'big' debut

As half of the famed hip-hop duo OutKast, Antwan "Big Boi" Patton is known for his bass-booming, chart-topping smash hits. His recording studio in Atlanta is lined with plush velvet, stocked with Courvoisier and has a swing hanging from the ceiling -- a place to settle in and do his work.

Bush to announce shorter combat tours in Iraq

President Bush on Thursday is expected to announce shorter combat tours for U.S. troops in Iraq but will order a pause in troop withdrawals.

How To Get Your Tax Rebate Check

Taxpayers have been ringing the Internal Revenue Service telephones in record numbers trying to get answers about the upcoming economic stimulus payments.

In a recent report, the Treasury inspector general for tax administration noted that the IRS has been averaging more than 50,000 calls per day regarding the stimulus -- significantly above the normal volume of calls the agency gets this time of year. And this is still after the IRS spent $45 million mailing out more than 130 million notices explaining the payments.

One frequent question comes from people who owe taxes this year and are entitled to a stimulus check. Here's what one reader wanted to know: "I am about ready to send in my taxes and I owe money. Do I then have no choice but to await a paper check, or is there some way I can arrange for direct deposit?"

Jim Dupree, an IRS spokesman, responded: "Fill out your bank routing and account information before you submit the return and you'll receive your stimulus payment via direct deposit."

Keep Reading (Registration Required).....

Oprah Tosses Dr. Phil Overboard In Favor Of Dr. Oz

Yesterday's news that Oprah is developing a talk show featuring Dr. Mehmet Oz — who's been a regular on her show for some time now — comes as a slap in the face to that other guy who used to be known as "Oprah's Doctor": Dr. Phil McGraw.

The New York Post's Don Kaplan reports that the Dr. Oz show will be in direct competition to a show Dr. Phil is currently developing:

But the new show - slated to debut in the fall of 2009 - appears to be a direct rival to "The Doctors," a new syndicated show slated for next fall that will be produced by the McGraws.

McGraw, was, of course, discovered and groomed by Oprah in 2002 for his own show in exactly the same fashion as Oz is being prepped this year for daytime TV stardom.

Further, Kaplan reports that even though it appears that Oprah has been grooming Dr. Oz for a show of his own (especially given that she recently purchased the Discovery Health Network), TV industry professional were surprised by the aggressiveness of the move:

"It's mystifying," said MediaWeek's Marc Berman yesterday. "This certainly can be seen as diluting the audience for 'The Doctors.'

"But Oprah has clout," he said. "If she wants to put a show on TV, she will."

Dr. Phil's afternoon show is part-owned by Oprah - but "The Doctors" is being made totally by McGraw's own production company without the help or profit participation of Harpo.

Internet Stars Aline For Yahoo

SAN FRANCISCO — Yahoo Inc.'s last-ditch efforts to avoid a takeover by Microsoft Corp. appear to be setting the stage for a dramatic finale featuring a rich cast of Internet and media stars.

Eager to frustrate Microsoft in any way possible, Internet search leader Google Inc. has already agreed to help out Yahoo by participating in an unusual test that will gauge how much more advertising Google can sell for its struggling rival.

The two-week experiment announced Wednesday will be limited to ads posted alongside a small percentage of Yahoo's online search results in the United States.

Yahoo reportedly hopes to build upon the Google deal by combining its online operations with Time Warner Inc.'s AOL, which has been struggling to regain its stride after stumbling badly for years. Google already handles AOL's search advertising and owns a 5 percent stake in the Time Warner subsidiary.

As part of the AOL deal, Time Warner would make a cash investment in return for a 20 percent stake in the combined entity, according to a Wall Street Journal story that cited unnamed people familiar with the matter. Yahoo then would use the Time Warner cash to buy back stock to put some money in shareholders' pockets. Yahoo would pay between $30 and $40 per share for an unspecified amount of stock, the Journal said.

Microsoft's bid was worth about $42 billion, or $29.24 per share, as of Wednesday, when Yahoo shares closed at $27.77.

If Yahoo's maneuvering raises the pressure for a higher bid, Microsoft reportedly may mount its counterattack with a surprising ally _ Rupert Murdoch's News Corp., whose media empire already includes the Fox television networks, The Wall Street Journal and the popular online hangout MySpace.com.

If Microsoft and News Corp. were successful in a joint bid, it would unite three of the Internet's most popular Web sites _ Yahoo, along with MySpace and MSN.com.

The New York Times reported Microsoft's discussions with News Corp. late Wednesday, citing people involved in the discussions.

Yahoo had previously been exploring using an alliance with MySpace as one of its escapes from Microsoft.

All the negotiations are at a sensitive stage and still could unravel, according to the newspapers' reports.

Contacted late Wednesday, a Yahoo spokesman declined to comment on the reported AOL talks. Microsoft representatives didn't respond to inquiries.

The complex web of deals faces various complications.

Because Google and Yahoo control a combined 80 percent of the U.S. search market, any long-term advertising alliance between them almost certainly would have trouble getting antitrust clearance, analysts said.

A broader relationship between Yahoo and Google also would face intense political scrutiny, said Sen. Herb Kohl, D-Wis., who chairs a committee overseeing antitrust issues.

A Yahoo-AOL combination probably would have to overcome shareholder skepticism because both companies have been fading in recent years. Before Microsoft announced its bid Jan. 31, Yahoo's market value had plunged by nearly $30 billion during a two-year period. AOL is now believed to be worth about $10 billion, about half of its value when Google paid for a $1 billion stake in 2005.

And Microsoft might alienate one of partners, Facebook Inc., if it teams up with News Corp. in an attempt to buy Yahoo. Microsoft last year paid $240 million for a 1.6 percent stake in Facebook, which is the second largest online network behind News Corp.'s MySpace.com.

Yahoo has been working for more than two months to put together a package that trumps Microsoft's takeover bid.

Microsoft has set an April 26 deadline for Yahoo to accept its current offer, which was initially valued at $44.6 billion, or $31 per share. The deal's value has eroded because Microsoft wants to pay for half of the acquisition with its recently declining stock.

Analysts have said that Microsoft can afford to pay about $35 per share, or about $50 billion, for Yahoo without undermining its future earnings. Yahoo has indicated it thinks its franchise is worth at least $40 per share, or more than $55 billion.

Yahoo's ad tests with Google make a friendly deal with Microsoft less likely and raises the odds that Microsoft will follow through on a recent threat to lower its bid, said Standard and Poor's equity analyst Scott Kessler.

In a statement Wednesday, Microsoft reiterated its bid is fair and pointed out the antitrust problems likely to prevent Google and Yahoo from working together.

"This would make the market far less competitive, in sharp contrast to our own proposal to acquire Yahoo," said Brad Smith, Microsoft's general counsel. "We will assess closely all of our options."

Microsoft has said that if things can't be worked out amicably, it is prepared to oust Yahoo's 10-member board in a proxy contest that could prolong the drama into the summer.

If the Google tests were to begin immediately, they would be completed shortly before Microsoft's April 26 deadline.

Yahoo didn't specify when the trial run would begin but said the test doesn't mean it will join the thousands of other Web sites that rely on Google to place text-based advertising links next to search requests or their other content.

Under the deal announced Wednesday, Google will show ads tied to about 3 percent of the queries made in the United States through Yahoo's search engine _ the Internet's second largest after Google's.

Yahoo will still use its own technology _ acquired and developed at a cost of more than $2 billion _ to place ads next to the other search results on its Web site. The Sunnyvale-based company also will continue to distribute search ads to its own partners.

By flirting with Google, Yahoo is trying to prove it has other options besides succumbing to Microsoft, Kessler said. But he doubts most investors will take the Google alternative seriously, given the antitrust obstacles.

"It doesn't make a lot of sense for Yahoo to make an announcement like this when everyone knows a long-term relationship (with Google) can't happen," Kessler said. "It strikes me as somewhat desperate."

539,500 Toyotas Recalled After Window-Shattering Accident

WASHINGTON — Toyota Motor Corp. is recalling 539,500 Corolla and Matrix passenger cars because the bolts in the power window system can become loose and ultimately cause a window to shatter.

Toyota said Wednesday it had received reports of 143 cases in which the bolts at the bottom of the power window assembly became loose, caused the window to rattle or led to the window breaking.

Toyota spokesman Joe Tetherow said there had been one minor accident and 15 injuries reported. He said he did not know how many complaints Toyota had received of windows shattering. The affected vehicles are in the United States, Canada, Puerto Rico and the U.S. territories, he said.

The recall involves 2003-2004 model year Corolla and Matrix vehicles equipped with power windows. Vehicles with manual windows are not part of the recall.

The automaker said if the window bolts become loose, motorists may hear an abnormal noise from the driver or front passenger door while operating the power windows.

The recall affects only vehicles sold in the United States, Tetherow said.

Toyota will notify owners of the recall in late April. Dealers will replace the driver and front passenger door glass bolts at no charge to owners.

For more information, owners can call Toyota at (800) 331-4331.

___

On the Net:

Toyota Motor Corp.: http://www.toyota.com/

(This version CORRECTS that affected vehicles are in the United States, Canada, Puerto Rico and U.S. territories, instead of only the United States, reflecting later information from the company.) )

Pilots No Longer Living The Dream

Among the jobs little boys dream of -- policeman, fireman, bulldozer driver -- airline pilot long held the added virtue of satisfying grown-up dreams: pay that reached $300,000 a year, 20 days a month off work, the prestige of one day commanding a $200 million airplane, and a lush retirement at 60.

But the airline industry's financial collapse this decade did away with much of that, leaving thousands of young men -- and increasingly women -- chasing a dream toward a disappointing reality.

"My wife thinks I'm nuts," said Jason Captain, 32, of Fort Worth who left the Navy last November, walking away from $75,000-a-year lieutenant's pay for flying military brass in and out of Guantánamo Bay.

Two Types Of Tax Fraud On The Rise

Thieves are increasingly obtaining fraudulent tax refunds by using the identities of lawful taxpayers, according to a government watchdog report released Wednesday.

The report, an annual document from the Treasury inspector general for tax administration, also noted a rise in the theft of taxpayer identities by people seeking to work without paying federal taxes on their wages. The Internal Revenue Service rarely prosecutes such cases, the report said.

Taxpayers who fall victim to either scheme face an uphill battle in sorting things out with the I.R.S., the report said.

Mona Ackerman: Mean Girls And The Parents Who Love Them

Q: The video of a girl being beaten up by six other girls is very upsetting to me. I have a 16-year-old daughter and I live constantly with the fear of anorexia, drugs, pregnancy, reckless driving, idiotic boyfriends --and dozens of other horrible possibilities that, with a moment's reflection, reduce me to intense anxiety. I try to stay vigilant about her activities while simultaneously trying to keep open our lines of communication. I try to respect her, to be aware of her self-esteem, and to give her the freedom to be exactly who she is. What does a parent do? How does a parent understand and deal with all the psychological issues that affect a kid nowadays? I bet the parents of those girls didn't have a hint about what they were up to. That's what scares me. They could have been you or me.

Are the parents doing the "right thing" now? Some of them are standing by their kids, denying what seems obvious on the video tape. They say they are waiting for the true story to emerge. Are they doing the right thing? After all, shouldn't parents always stand by their children -no matter what? I am reminded of accusations against members of the Duke University lacrosse team. The prosecutor said he had a hard case of rape. But the boys were innocent, virtually framed. What if those parents hadn't stayed true to the belief that their kids were good kids? Isn't it possible that if parents don't think their kids are innocent, the kids then will never forgive them and, maybe, respond by becoming bad? Isn't this a self-fulfilling prophecy?

A: I agree with you. I am very upset by this video as well and as a psychologist, I'd like very much to offer a psychological explanation for what I've seen on the TV screen. That would not only make things easy for me, but it should make things comforting for you. I'd find something to explain this abhorrent behavior and it would not apply to you, your household or your daughter. That way, bad things won't happen to her and she won't do anything bad herself.

Sorry. I cannot find a general underlying psychological explanation. Each child, each family unit, and each neighborhood are unique. Together all of these factors combine in unique ways to the general environment - and all that, taken together, is what influences our children. One parent's response to a child may be correct while another parent, responding the same way, is going to be making a mistake. So it's probably a bit unsatisfying for me to say "Be Alert!" Be open to all possibilities! Be painfully honest with yourself about your child and be even more painfully honest about who you are and what that might mean to your child. Still, unsatisfying or not, that's what I have to do.

Before trying to examine your own parenting, you have to recognize that you simply cannot control your child's environment. For many years, research has focused on the possible effects TV or movie violence has on young minds. Most of the research concludes that there is an effect -and not, as you may have guessed, a good one. Maybe the violent girls -and their alleged male collaborators - were affected by what they saw on television. Maybe, too, they decided to post their exploits on the internet because they had learned -mislearned, is more like it -that there is no such thing as bad publicity. The current infatuation with celebrity, particularly acute among the young, teaches that fame -no matter what for - is the ultimate reward. Well, these girls are -for the moment--famous.

Another possibility strikes me -but it is one that I know of no research to back up. I'll plunge ahead anyway. It's possible these girls distanced themselves from what they allegedly did by posting it on the internet. That made it a virtual attack, not a real one. And they were, they said, responding to what their victim had previously said about them on the internet. This has been the stuff of teenage tiffs since time immemorial -but it has been transported, if that's the right word, to cyberspace. Blurring virtual life with real life -What's real? What's virtual? -- has to be approaching danger.

Young people of today are different from young people of the past in many ways -their toys, for instance (cell phones, etc.) but also in their status. Young people are consumers and in America the consumer is king. Years ago, kids had no money and so no one cared what they thought. Now because they have disposable income and are peculiarly susceptible to fads, society pretends to admire them. Being young is wonderful. Being young is wise. Being young is hip and slim and all the things society admires. Being young, really, means getting your pocket picked.

All this reinforces a young person's sense of personal power and the belief -the immature conviction --that whatever they do is right..

So, perhaps one of the first things to do is to go back to parenting your child. This society has tended to focus too much on the cult of youth and allows kids too much freedom. You are not their friend. That's the reality. You are the one with the power. That, too, is the reality. A parent deserves the respect of position, age and experience. You are their guide through the realities of life. You are the one to make the determination of what their limits are. Respecting your child doesn't mean letting them determine totally what their path is. Respecting your child means loving them for whomever they are, while giving them the tools to function well in the world we live in. You are the one at the moment who knows better.

After having taken into account the influences from the outside, only then can we try to understand what goes on in our unique family unit. Yes, you need to support your child, so that he/she knows they are a part of a secure family unit. But you also don't want to idealize or be blind to issues your child has. By being aware of who they are, you can give them the love they need to find the tools to function well and successfully. Reality means facing some harsh truths, including for instance their inability to make friends easily...or their inability to control their frustrations...or their distress at their inability to compete scholastically or athletically ... or anything else that can bring them pain and make them seek an escape of some kind.

And of course don't forget your own issues. Many parents analyze their children's needs through the filter of their own childhood. Be careful that you are not over protecting your child because as a child you felt overly exposed to the world. Or don't defend your child's every action because you felt that you were not fully supported by your parents. Your child's life is his or her own. Their experience is not your experience. The world has changed. Move on with it.

So, do we need to psychologically understand these girls that allegedly beat up another girl? I don't think so. The proper place for psychology is way before these actions took place. Maybe they need treatment. But certainly they deserve punishment.