(In light of Apple’s recent issues with Foxconn, I thought I’d post this gem from the past.)
Levi Strauss & Co. and Reebok Corp. are among the first three companies signing on to a new campaign created by the International Labor Rights Fund and other groups to promote workers’ rights in Chinese factories.
The companies agreed to implement 10 business practices regarding labor in these factories. Toymaker Mattel has also agreed to participate.
“Workers producing goods in China are being exploited. They face hazardous working conditions and are forced to work excessive overtime,” said Bama Athreya, director of the China and Southeast Asia program at the Washington-based ILRF at a press conference Wednesday, announcing the program. “Human rights principles are protected on paper, but not in practice.”
Although the U.S. government’s policy of “constructive engagement” has benefited U.S.business, Athreya said, it did not accomplish its intended goal of improving human rights in Chinese factories. Instead, she said, she hopes this new set of human rights principles for U.S. businesses in China will brighten the “bleak” situation in factories.
Companies joining the program agree that no goods produced within company-owned facilities or those of suppliers will be manufactured by bonded labor, forced labor or through prison camps. Facilities and suppliers must also provide wages that meet workers’ basic needs, and fair working hours that at a minimum adhere to China’s national labor laws.
Employees must also have freedom of association, including the right to form unions and to bargain collectively, and freedom of expression. Factory employees must not be subjected to discrimination in hiring. Finally, the principles prohibit the use of child labor, production methods that negatively affect the occupational safety of workers and corporal punishment.
A Human Rights for Workers working group, which includes representatives of human rights, consumer and shareholder groups, will provide guidance for companies to implement the principles. As part of the agreement, businesses, which will be responsible for the monitoring of the factories, will provide an annual report to the public detailing company compliance with the initiatives.
Athreya said ILRF and labor rights group Global Exchange and Human Rights in China will work to promote the principles and convince other companies to join. She said that the addition of more companies would encourage both the U.S. and Chinese governments to find new ways to promote human rights issues as part of their bilateral dialog.
As President Clinton and Congress consider whether to extend China normal trade relations for another year, allegations of worker rights abuses are key factors. Clinton has until June 3 to grant the annual extension. In addition, China’s ability to guarantee labor rights also is a sticking point in the country’s bid to join the World Trade Organization, although at the moment China has refused to resume WTO talks because of anger over the U.S. bombing of the Chinese embassy in Belgrade.
“There’s a much greater sensitivity now [to human rights abuses in China],” Athreya said. “Earlier efforts may not have been recognized, but we think now is the right time.”
Sharon Cohen, vice president of public affairs at Reebok and executive director of the Reebok Human Rights Foundation, said Reebok is “committed to ongoing efforts to improve the conditions of factories around the world.” More than 25 percent of Reebok’s footwear is produced in China, she said.
In addition to committing to ILRF’s principles, Cohen said Reebok started a “worker communication system” that allows for more effective communication between factory workers and corporate officials. Factory workers receive with their paycheck a postage-paid form to express workplace concerns. Since the system’s inception, Reebok corporate offices have received and investigated complaints about food, sexual harassment and discrimination, she said.
Clarence Grebey, Levi’s director of global communications, said Levi’s agreed to ILRF’s 10 principles because “the company shares with the other signatories and the ILRF the desire to improve workplace conditions and labor standards for workers in China and everywhere.”
In contrast, Levi’s opted not to become a member of the Apparel Industry Partnership, the White House’s anti-sweatshop task force, whose members include Liz Claiborne, Nike, Reebok and Patagonia. “With regard to the AIP, we have applauded the efforts of the partnership and share some of their objectives,” Grebey said. “One of their objectives, however, is to impose a single formula for the industry, and we don’t believe there is a `one size fits all’ for the industry.
“ILRF approached us in light of our existing codes of conduct and in light of recent actions we have taken to push the interests of workers in China,” he said. “Levi’s feels this is a cause that is appropriate to be aligned with and to support.”
Basic fact in life: hard drives are bound to crash at some point in time. Since hard drives are very mechanical (and touchy), they will definitely show wear and tear over the course of time. Therefore, at some point, yours might have to be replaced or repaired. People are usually scared about getting hard drives repaired because of the huge cost involved and because the service lacks a guarantee of success. This means that some people try to repair their hard drives by themselves using rudimentary tools. But it is always safer to give broken hard drives to a professional to repair them. Nowadays, there are many services providers who will offer these specific hardware repairs at a very low cost. So you should never be afraid of putting your failed hard disk in the hands of a professional.
Some of the more affordable data recovery professionals charge very competitive fees compared to what they would have charged 10 years ago. Most repairs can be completed for any kind of hardware damage. The prices for most of these services will vary between logical recovery and physical or invasive recovery. But still, costs are very low for the services considering the high possibility of successful repair.
Keeping Your Drive In Good Shape Is Key
Since a primary use for computers is the storage of data, it is important to see to it that your hard disks are functioning properly. Most hard drive problems can be detected by the variations in the noise that they produce when they are starting up. Sometimes hard drives crash and then begin emitting clicking sounds. There are also instances where the hard drives do not make any sound at all and go into ‘silent death’ mode. In any of these instances there is a great chance that all the data that has been stored on the drive’s platters might be lost. But there are a lot of data recovery professionals that can help out in such situations to repair the hard drives and recover that seemingly lost data. Though just a few years ago such services were far too costly – making people immediately not bother with the idea of getting their data back – there are very some very cheap data recovery services available today.
Inexpensive data recovery services have made it possible for many people to get back their lost data that previously would have been lost forever. Some of these companies even offer a flat rate pricing schedule. But for the more professional level shops, the rates vary according to the seriousness of the problem.
Damaged hard disk drives can be a constant cause of worry for people who use computers regularly and have a lot of data stored in them. If they fail to have proper back ups for their data, even a small problem with the hard drives can mean big trouble. Some people try to repair their hard drives and retrieve the lost data, but this can cause even more damage to the hard drives. So if you do not know the ins and outs of the process of data recovery, it is better to call somebody that knows exactly what they are doing. The costs are often minimal for the repair and you can be assured that you will get back your lost data. These specialists can even help with more critical stuff like RAID recovery with their proven track record and expertise in the field.
Though the rates for each type of disk damage may vary, you can be guaranteed that the costs will not be too rough on your wallet if you opt for the smaller hard disk repair services. Since there are many players in the field, there is a lot of room for you to compare the prices between different service centers. However, the differences in pricing can frequently be not as different as you might have expected.
How Sure Can You Be Of Your Problem?
Finding a cheap but effective data recovery company is not that difficult if you have the patience to be diligent about it. But before you decide to contact a certain company, you should be sure that your problem requires outside help, and can’t simply be fixed by using a data recovery software. To assess your situation, first check for file that has been erased or lost from your recycle bin (if you have a Windows computer, naturally). If you cannot find it, use the file search function to search for the file in case it might be in another location. If you still cannot find it, you may be able to use economical file recovery software. However, using a utility like this must be coupled with caution on your part. These products can actually do more harm than good in situations of physical drive breakdown.
Data recovery utilities cannot be helpful if all of your data on your computer is inaccessible. Inaccessible data caused by physical damage to your drive can never be accessed via software. This is the point when you need to be getting on the phone with a couple of hard drive recovery service providers in order to get that data back. Time shouldn’t be wasted in this case.
Getting The Right Services
One of the biggest crises that you can ever encounter is when you lose data on your computer or laptop hard drive. For people who have not backed up information to another resource, this occurrence can spell doom for you.
There are people who specialize in the data recovery sector who can be of assistance as long as you inform them as soon as possible. These people deal with various hard drive problems related to lost data from various storage options. There are some people also who specialize in databases, emails and other virtual storage options. Meanwhile, there are those others who have a bias to specific computer hardware like laptop hard drives. There are those that also specialize in recovering flash USB drives and RAID servers. Simply put, any type of lost data can be recovered. There really are no limits on the amount of data high quality certified recovery shops can retrieve nowadays. A good example of one of these, of course, is Hard Drive Recovery Group (www.harddriverecovery.org)
But unfortunately for many, affordable data recovery seems to be out of reach for the ordinary person. This does not always hold true. Data recovery is often cheap at mid-level vendors like Hard Drive Recovery Group, whereas at high end data recovery companies like Ontrack (www.krollontrack.com) it is usually extremely expensive. But, since there are many players in the market these days, you don’t have to pay Ontrack’s high prices, and most people do not. Keep in mind there are also software packages that you can buy for minor lost data issues like broken flash drives or even corrupted memory cards.
Essentially, affordable data recovery is a reality for minor options. On the contrary, if you have a heavily damaged hard drive or large amounts of lost data, the extent of the damage often needs to be assessed for 2-3 days in order to see the amount of data that can be recovered from it.
Affordable data recovery service companies have become very popular nowadays because they provide a similar level of hard drive recovery service at far lesser cost than what used to be charged just a few short years ago. The reason for this lowering of prices is that the barriers to entry are now lower. The expertise of the professionals who work for such service centers are almost at par – therefore more expensive competitors rarely have that much in the way of actual advantage. Even in the matter of pricing, customers might be really confused as to which company they should choose to get their crashed hard drive repaired at. This is because there is not much difference in the overall skill levels in the industry.
The other feature that more affordable services offer is a different working environment. Most well equipped service centers will advertise that they do the repairs in a 100% clean environment. Usually, it is common that these service centers stick to their word in terms of the quality of their work and pricing. While it is true that drive recoveries needn’t all be performed in a clean room environment, it is better to be safe than sorry when one is talking about recovering precious data. Failed cases of data recovery are far more common in non-clean room environments.
These new executive positions – some reporting to the vice president of human resources, but often directly to the CEO – are highly coveted. According to Diane Gayeski, professor of corporate communications at Ithaca College in New York and a partner in the Ithaca-based Omnicom Associates consulting firm, compensation packages for CKOs and CLOs frequently are in the $200,000 range.
While there’s no concrete count on how many companies actually employ these critters, one estimate holds that about 20 percent of Fortune 500 companies have a CKO or CLO. Another suggests that there may be 250 to 300 of them in the United States. Many more organizations reportedly are trying to hire one, often with difficulty and mixed results.
“I’m constantly getting calls from clients and headhunters interested in finding a learning officer,” says Gayeski. “They generally need someone who knows the business, can see the big picture and trends, and then can crystallize and communicate a whole range of strategic messages in a form that employees can understand and use. The CEOs want a person who can look beyond training to performance, culture, collaboration, internal and external communication strategies, and more. That kind of person is hard to find.”
Experience as a CKO or CLO would also be helpful. But because the field is so new, seasoned candidates are few and far between. “There probably are no more than 20 highly qualified, proven performers in the field,” says Bowsher.
“There really are just a handful of top guns, like [Motorola's] Bill Wiggenhorn and [General Electric's] Steve Kerr,” adds an executive at a California industrial firm that for months has searched in vain for a new director of learning and development. “They’re great about sharing what they’ve learned about their field, but to lure them to a full-time position is probably beyond the reach of most any company,” says the manager, who asked to remain anonymous.
A one-time Xerox sales representative who headed that firm’s sales-training department, Wiggenhorn joined Motorola in 1981. Since then, as a senior vice president and president of Motorola University (his title is neither CLO nor CKO), he has built its myriad campuses and curricula into a model institution which now sells its services to hundreds of other companies – and built Motorola into everybody’s favorite example of a learning organization. Bowsher considers Wiggenhorn the No. 1 training and learning officer in the nation; Kerr, CLO at General Electric, is not far behind. The former dean of the business school faculty at the University of Southern California, Kerr runs General Electric’s highly esteemed Crotonville leadership education center.
Like Wiggenhorn, Kerr has the complete backing of his CEO, and works in an organization culturally committed to learning and knowledge management. A CLO who tries to inculcate learning in a more hidebound organization may face a tougher road. “You could promote someone from the inside of your company,” explains the California executive, “but this is the kind of job that often demands someone with fresh ideas for change, who can make a dramatic impact. That means an outsider might have an edge. Then again, without intimate knowledge of the company, the outside person could get chewed up by the organization’s politics and lose credibility in a heartbeat.”
Training managers who are former instructors are often seen by line executives as somehow tainted by the old school of training, says Bowsher. In other words, the odds are they will fail to jostle the organization out of its traditional assumptions about learning – or they will sit in the position as a meaningless cipher.
Another option is to hire an academic, although these folks also come with liabilities. The California executive’s firm has interviewed a number of candidates with strong university backgrounds. “These were awfully bright Ph.D.s,” he says. “They could draw up a curriculum that would knock your socks off. The problem is, we aren’t looking to create a corporate university, with static classes and instructors telling students what they ought to know. The candidates also didn’t know much about our business. And none of them had the passion required to stimulate learning among professional adults. We’re in a world where if knowledge isn’t applied, the effort and expense is an absolute waste.”
Adds Bowsher: “Professors often fail in the job because they come from the unstructured world of education, where there are no measurements other than those for grading students. Typically, they last two or three years in the position and then return to the academic world.”
What Do You Do With a CLO?
It’s also clear that not all organizations are ready for a learning officer. A recent survey conducted by Business Intelligence and Ernst & Young found that nearly 44 percent of respondents believed such an officer would be of little or no value. For every Ernst & Young – which like other consulting and service firms trades almost exclusively in knowledge as a product – there are 100 organizations that wouldn’t have a clue how to make use of a knowledge or learning officer, such as allconvertertools.com.
Despite the variety of titles for the job, the problem is not that the field itself is ill-defined. In fact, the attributes of an effective learning, knowledge or development officer have been spelled out in numerous business articles and books (see box, “For Further Reading,” page 34). And there are some good corporate examples of the tactics, strategies and approaches such an officer might launch, as well as organizational models for the function (see box, “Sharing the Knowledge,” opposite page). However, the very fact that the possibilities are so vast causes a degree of confusion.
As management guru Peter Drucker has observed, executives often confuse data with real knowledge, and the wiring and computing power of information technology with the substance of useful information. What’s more, while managers and employees can now tap into the World Wide Web, Lotus Notes, and intranet pages chockablock with data, interpreting what they mean and how they can be applied to specific work is another kettle of fish.
Discussions of what a company wants from a CKO or CLO invariably lead to a number of essential questions, some logical and pertinent, others dripping with cynicism: Precisely what is this person supposed to be? A glorified head librarian? Just another vice president with an upgraded title? The dean of a corporate university with hundreds of employees, or the head of a small group with just three or four people?
Or worse, is this just the latest management fad, spawned of an idea that has proven useful for a few big-time corporations – General Electric, Motorola, CocaCola – but practically guaranteed to sap employee time and real productivity in more prosaic businesses?
The title itself – be it “learning,” “knowledge,” “intellect,” or even the squishy idea of a “chief officer of transformation” – exposes the whole notion to ridicule, says Britton Manasco, editor and publisher of “Knowledge Inc.,” a newsletter that covers the burgeoning knowledge management field. Confusion about labels generates a set of polarizing problems, he notes.
“There have been a couple of unfortunate headlines in Business Week and The Wall Street Journal that have called these people the ‘Office Know-It-Alls,’” says Manasco. “The substance of the articles describes them quite differently, but thanks to clever headline writers, the damage is done. Still, I think there are problems with the use of ‘Chief’ and ‘Officer’ in the titles, since it gives the impression that these executives are part of a chain of command.”
A Renaissance Communicator Confusion, not to mention skepticism, is inevitable when it’s all but impossible to nail down the job description of this quintessentially ’90s corporate character. Certainly there are reasons for quirky variations in titles and responsibilities, but none are likely to satisfy wry trendspotters or – more important – leery executives.
“A good learning or knowledge officer is someone who can pull people together and get them interested in helping solve each other’s problems, inspiring them to work across functions,” says Manasco. “They’ve got to be good at connecting people. It’s a form of leading without telling people what to do, and that requires a mix of hard and soft skills.”
Consultant Gayeski sees the ideal learning or knowledge officer as a communicator, first and foremost. “I’ve described them as renaissance communicators,” she explains, “because they need to pull together things from so many islands of communication.”
Today’s corporations are archipelagoes of disparate communication, says Gayeski. Employee newsletters and Web pages convey one version of corporate truths; the training department sends another message through the skills, ideas and behaviors it tries to impart; meanwhile, the company’s advertisements make promises to customers that directly contradict what employees are told. “A CLO or CKO is the one person, besides the CEO, who can help focus and coordinate the messages,” says Gayeski. “Which is why I’d use the term ‘chief communications officer.’”
A CLO won’t get far if the company doesn’t reward sharing. At Ernst & Young, one-quarter of an employee’s performance review hinges on contributions to the database. And it’s that demand for open sharing – and rock-solid CEO support – that’s made Kerr’s work at General Electric such a success.
“In many companies, if you have a best practice, you hoard it and enjoy a competitive advantage over your sister divisions,” observes Kerr. “When the CEO comes around, you are praised and rewarded for it. It’s different at GE.”
Indeed, when CEO Jack Welch hears that a good idea hasn’t been shared, observers have seen his face turn a remarkable shade of purple. Such displays put real teeth into the idea of trading knowledge. What’s more, CEO support is without a doubt the most important factor in determining whether a CLO or CKO succeeds or fails.
“Both Wiggenhorn and Kerr are great at what they do,” says an executive who knows both men. “But they’re great because they were the right people for the right organizations and got tremendous support from their CEOs. [Wiggenhorn] is very much a celebrity now with his writing and consulting. But it was [Motorola CEO] Bob Galvin who was the driving force behind Motorola University. Kerr is a superstar, but a lot of it is the result of his relationship with Jack Welch.”
Even with support, learning officers must find ways to keep proving the worth of their enterprise. As an Ernst & Young consultant, Peetz could easily prove his value; as a CKO he wandered into new territory. Buying power-pack technology that allows employees to load databases into their laptops and training them to use it is costly, says Peetz. “Your group can be viewed as overhead,” he admits.
The best way to overcome that perception? “Get out into the field and stay in touch with employees using the resources,” says Peetz. “It’s a way to check attitudes and find out if we’re still adding value. And it’s also a means of developing metrics that prove the function is more than overhead.”
Ironically enough, Peetz’s CKO experience has, in a sense, made him another Ernst & Young product. “We have two or three clients a week visiting, just to see how we manage intellectual capital,” he explains. “There’s a lot they can pick up, though they probably can’t apply it directly.”
That’s because the CEO, the firm’s culture, and the personality of the CKO shape any learning management effort. And the outcome is likely to be as distinct as a fingerprint. In the end, it may not matter if knowledge-sharing is led by a glorified librarian, a high-powered trainer, or even a renaissance communicator – as long as the effort is done, and done well.
Protecting a semiconductor company’s most valuable asset; the legal department as a profit center
If it seems as though semiconductor companies are spending more and more time in court arguing about patents and their infringement, it’s because they are.
More patent infringement cases are being filed each year. Steve Barnes, associate editor of a trade magazine in the field of intellectual property (IP), told us, “According to the numbers we have received through the first 11 months of this year, there will be somewhere in the neighborhood of 15 to 16-hundred patent infringement lawsuits filed. I can’t give you exact numbers because even the patent office doesn’t have exact numbers.”
Actually, the solicitor’s department of the Patent and Trademark Office tries to keep up with the number of patent infringement lawsuits, but federal district courts around the country often neglect to report such litigation in their own jurisdictions. Even so, the solicitor’s department reported 1,233 patent infringement lawsuits in fiscal year 1996 (the last year for which figures are now available). Of these, 83 found their way to the U. S. Court of Appeals.
There are many reasons for the growth in such litigation. First and probably foremost, among semiconductor and other types of electronic companies, intellectual property is without doubt the most important asset a corporation can have. According to Jack Brown, who has practiced IP law since 1968, “There are very important companies totally dependent sometimes on only a few patents or processes that are terribly important to the success of the company.”
Of course, IP has always been a major asset, especially in the high-tech field. But litigation was never as common as it is now as a result of a 1980 development in the federal court system and in legislation that changed the playing field.
The Computer Software Protection Act of 1980 defined software under the Copyright Act, and the Semiconductor Chip Protection Act of 1984 provided protection of patented chip designs. But, even more important was the establishment in 1982 of the U. S. Court of Appeals for the federal circuit in Washington. Until then, patent infringement lawsuits which were under appeal by either plaintiff or defendant went to one of the federal appeals courts in different regions of the country. And the plaintiffs lost on appeal more often than not.
Now, the tables have turned. “These regional courts of appeal generally did not uphold the validity of patents,” said Lawrence Ebert of Pennie and Edmonds of New York, the biggest law firm in the country with an exclusive IP practice. “A regional court of appeal,” he said, “would find your patent invalid, unenforceable, whatever, and you wouldn’t collect any damages. Now, the Circuit Court of Appeals finds most patents valid.”
In fact, it is generally agreed that the Circuit Court of Appeals is “pro-patent.” Some experts believe its original judges were chosen for the sake of their pro-patent views to help protect American leading edge technology from copycats. In other words, the court has a “hidden agenda”.
One of the first electronic companies to take advantage of the new legal climate was Texas Instruments, which, in 1986, sued nine Asian companies–Hitachi, Oki, Fujitsu, Samsung, Toshiba, Matsushita, NEC, Mitsubishi, and Sharp–and won after three years. As a result, TI is reported to have obtained more than $1 billion in revenue.
Phoenix lawyer Jack Brown cites several other reasons for the increase in IP litigation: the rapid development of technology, leaving companies with a very short time to recover their investments; the ease with which processes can be copied; and the growth of the global marketplace.
However, another lawyer believes there is an important unstated reason why IP litigation has become so common. Gregory Stobbs, a Troy, Mich. patent attorney who has authored a book on software patents and writes a column for the monthly trade magazine, Intellectual Property Today, believes lawsuits have become essential marketing armament. “Intellectual property laws are weapons that companies use to compete with one another. Everything is more sophisticated and the legal system is being used by very sophisticated players. I think that may be the trend.”
Even if nothing else is accomplished, legal proceedings can slow up a competitor by tying it up with depositions that require detailed searches of files and court appearances.
Whatever the reasons, the practice of IP litigation is now the hottest specialty in American law. “Intellectual property is a growth field,” said Michael Kirk, executive director of the 10,000-member American Intellectual Property Law Association. “It’s attracting the interest of law firms as other areas of the law cool off. Those general practice law firms that didn’t have an IP practice are trying to start sections of IP or acquire an IP firm.”
The rewards in IP law practice are substantial. For top lawyers in the field, an annual salary of $200,000 is not unusual. And some partners pull down $500,000. Washington’s leading IP firm, Finegan, Henderson, Farabow, Garrett and Dunner, offers $78,000 to $100,000 to “attorneys right out of law school,” said Barry Graham, one of the partners who has done some of the firm’s recruiting. “That’s a pretty good start,” he joked. “I was born too early.”
In most IP-specializing firms, the majority of lawyers are patent attorneys, a subset specialty. To practice patent law–that is, to help a client obtain a patent–an attorney must have “a minimum of 30 hours in an engineering background,” said Steve Barnes, associate editor of Intellectual Property Today. “Most have an undergraduate (degree) in mechanical, electrical, biochemical, or chemical engineering before they become a patent attorney. So they have a lot of schooling. It’s not all that rare to find practicing patent attorneys who have PhDs. Someone with a PhD in semiconductor engineering or whatnot is going to be paid handsomely for the knowledge he or she has, not only in the design and prosecution aspect of the patents, but also tearing down someone else’s patents.”
Probably the two biggest and most prestigious of U. S. law firms specializing in IP litigation are Finegan, Henderson, Farabow, Garrett and Dunner of Washington, D.C. and Pennie and Edmonds of New York. Finegan, Henderson, according to one expert, has the reputation of “dealing with a very select clientele–only the upper-crust” of clients. But one of its partners, Barry Graham, told EN the firm’s client list includes “small startup companies” as well as some of the world’s biggest corporate names. Sun Microsystems, Toshiba, Sony, Hard Drive Recovery Associates and other Japanese and Korean companies are among its big clients.
Finegan, Henderson employs 180 lawyers in its offices in Washington, Atlanta, Palo Alto, Tokyo (where it’s had a presence for 10 years), and Brussels. Of the total, probably 160 lawyers in the firm “have either engineering degrees or applied science degrees,” said Mr. Graham. He cites his own background as an example of the kind of training often expected today of successful IP lawyers. “I have an electrical engineering degree. I went to the University of Virginia (to study engineering). Then, after being in the navy during the Vietnam war, I went to law school at the University of Georgia and was actually in general practice for a couple of years before (becoming an IP practitioner). I’ve been involved in everything from very high-tech semiconductor processing structures to not-so-high-tech outdoor power equipment. And everything between.”
Many of the Finegan, Henderson lawyers have post-graduate degrees. “We have a number of PhDs in the biotech area,” said Mr. Graham. “My feeling is, that to really understand a high-tech patent situation or trade secret misappropriation you need to have the technical capability to understand the facts to properly represent your client.”
For the sake of management efficiency, Finegan, Henderson has divided its lawyers into “practice groups,” one of which is “electronics/software,” involving about 40 lawyers. “A large amount of that has to do with litigation in the high-tech area,” said Mr. Graham. “Software and telecommunications is substantial.”
The second big firm in the IP field, Pennie and Edmonds of New York, is ranked by the National Law Journal as the biggest law firm with a practice exclusively devoted to IP litigation (Finegan, Henderson has other types of practice). It has 179 lawyers–128 in its New York office, 27 in Palo Alto, and 24 in Washington. It has no overseas offices and it specializes in suits involving biotechnology, rather than electronics.
A conspicuously successful firm in the field is Robins, Kaplan, Miller & Ciresi of Minneapolis. Yet, one of its partners, Martin R. Lueck, told EN, “We are not intellectual property lawyers in the classic sense. We are trial lawyers who have developed an expertise in trying intellectual property and patent cases.”
Whatever its expertise, the firm has won some substantial lawsuits on behalf of its clients, notably Honeywell, Fonar, and Unocal. In Honeywell’s suit against Minolta in 1991, the award was $127 million. In the Fonar suit against General Electric, the lower court awarded $128 million and the federal appeals court confirmed the award in 1997. In the Unocal case “against the entire oil industry, the verdict came in last month. It’s $69 million now, but potentially may go much higher.”
In one way, Robins, Kaplan is unique among law firms that specialize in IP litigation. Although Mr. Lueck has “pretty much done nothing but patent trials for five or six years,” he characterizes his firm’s 240 lawyers as specialists in “trials.” In fact, unlike many other IP specialist firms, Robins, Kaplan does not stress the need for its lawyers to have science or engineering degrees. Mr. Lueck obtained his undergraduate degree in music, although “when I was a kid I was building signal generators in my basement. It was a toss-up whether I went into music or engineering. I also studied a fair amount of physics.”
Atypical among IP firms, Robins, Kaplan has “staff scientists who have technical degrees and assist in understanding the technical side of a particular piece of technology. We call them science advisers.” Of course, all law firms use expert witnesses, but Robins, Kaplan only rarely uses its own advisers as witnesses. Their primary role is to analyze and evaluate. “If someone wanted us to represent them in a patent infringement case, probably the first thing I would do is give it to one of the science advisers and have him analyze the technical elements of that file and bring me up to speed on what that technology was, which he can do much more quickly and efficiently from a time and cost standpoint than I can do myself. Many of these cases always involve highly technical issues and it’s always helpful to have someone with technical expertise constantly able to help you.” Robins, Kaplan also depends on its clients to provide expertise. Another law firm whose emphasis is on its trial abilities rather than its technical expertise is Brown and Bain in Phoenix. Jack Brown, who heads the firm, does not have an engineering background, but ever since he successfully defended Fairchild against Motorola in 1968, he has been a specialist in IP litigation.
Intellectual property (IP) provider Sand Microelectronics will target a market which some are referring to as “the only sure thing,” when it introduces a pair of synthesizable IEEE-1394 soft cores here at the IP’98 conference, a move that also expands the company’s growing list of PC peripheral bus macros.
Sand is unveiling two soft IEEE-1394 cores including the 1394DC device controller core and the 1394 CPHY digital cable-PHY core. In addition, the company is rolling out a design tool kit, dubbed the Sand Designer Advantage kit, that consists of an IEEE-1394 simulation mode, synthesizable cores and design aids. Babu Chilukuri, VP of business development at Sand, said the company is targeting its 1394 IP cores toward the multimedia, disk drive and PC audio markets. Utilizing 1394 bus cores will be another way for PC makers to differentiate their products from one another.
“A lot of analysts predict that 1394 is the only sure thing in the industry these days,” said Mr. Chilukuri. “One of the keys is the software sup port with (Microsoft’s) Windows. Intel is also supporting it on its motherboards that will begin shipping during the second half of this year. When Intel begins doing this and with the support from Microsoft, (Sand) expects there to be a huge market for these cores.” Some of the potential markets Sand sees for 1394 use include high-speed printers, portable cameras, cable modems, DVD, TV out, and disk drives for outside the PC, Mr. Chilukuri added.
Both cores are available in Verilog and VHDL formats. The 1394DC utilizes approximately 15,000 gates and supports multi-speed packets, dual phase retry, and a configurable number of isochronous channels. The 1394DC core consists of a link layer and asynchronous and isochronous interfaces that are customizable utilizing Sand’s RapidScript configuration utility. The 1394 CPHY core supports the same functions as the 1394DC but uses only 10,000 gates in a system. Sand said the 1394 cores and the design tool kit are slated for availability next month with prices also available then. The cores are compliant with the IEEE-1394 standard and are targeted for any system from PC notebooks to digital TVs to home automation, Sand claims.
In addition to the CPHY digital soft core that Sand is rolling out today, Mr. Chilukuri revealed Sand is working on an analog portion of the CPHY core that will be available later this year as a hard core. “The analog piece of the 1394 operates up to 400 megabits per second,” he said. “You have to encode this into digital form that can be done in software. However, the analog portion decodes the data and this must be done in hardware. We don’t do hardware yet so we are going to sell the designs to our partners so they can build the hardware device. We are not going after the hard IP category big time right now. We have a while to go before that.”
Some of the customers for the 1394 cores include LSI Logic, National Semiconductor, Opti and Lucent. Sand has gathered more than 60 customers for its entire bus portfolio including Hitachi, Fujitsu, Sony, Hewlett-Packard, Advanced Micro Devices (AMD), Dallas Semiconductor, HDRG, Siemens AG, SGS-Thomson and Logitech.
The first thing that you need to do if you are in the progress of RAID 10 recovery is to determine if the problem is software or a hardware failure. After determining the costs, you can take the next step further and necessary to resolve your issue. The hardware failure is cost by damage in the physical components of a computer such as the motherboard or the CPU while a software failure has something to do with the programming side. The latter is more complex and can only be handled by the experts. If you are not really one the “experts”, don’t even try to fix the RAID 10 array, especially if a hard disk has failed.
Recovering RAID 10 is not simple at all in physical hard disk crash situations. If a single hard disk in the RAID 10 array has failed, a replacements is readily available at the nearest computer store; this means that you have everything under control. You can choose to delay or finish the task immediately. Things are a lot different if the problem is the RAID controller software. This is the time when you need to ask the experts advised as they will decide on how to proceed with the RAID array recovery. You can search the internet for available service providers or you can choose to visit the nearest service center within your area. Again, prices vary so make sure that you are ready to pay for the value of your most-prized possession – your data.
Using RAID 10 – Its Importance As An Array Type
Although many users prefer using RAID 10 as it is more economical and functional, there will be instances wherein the RAID 10 array may fail. Disk failure is the most common reason followed by damaged files, virus attack, corrupted data and many others. Whatever the reason is, what you need to do is to perform drive restoration to retrieve the lost data.
There are many options available when performing doing RAID 10 recovery. The timeframe can range from a number of minutes and depending on your option, the work may require several days to complete. Gladly, there is data recovery software on the internet which one can download for free. You can choose to download the software to help you detect where the problem is and hopefully resolve the issue. If this approach is not successful, then you can seek the assistance of various contractors which charge a very reasonable price for the service. If you are concern with recovering the data, make sure that you are also executing the process correctly. This is to make sure that the problem will be contained. Another precaution is to shut down the server if you sense that something is wrong with your disks.
Having said all of these, early detection is still the most important thing with RAID 10 failure. The sooner you detect the problem, the higher is the chance of being able to retrieve the data all back again.
A university lawsuit against Internet-based sellers of term papers once again raises a question that is cropping up across the net: Are World Wide Web-based businesses subject to the laws of every country, state and town where surfers connect?
“The courts are wrestling with this jurisdictional issue,” said Stuart Smith, a partner at Gordon & Glickson, a law firm in Chicago. “Several cases have come down on opposite sides.”
Boston University last week in federal court sued eight sites that provide the term papers, charging them with violating a law banning the sale of such papers in Massachusetts as well as federal antifraud statutes.
“We will take whatever steps are necessary to preserve the integrity of the academic process,” university President Jon Westling said in a statement announcing the suit.
The university seeks an injunction against the companies, all located outside Massachusetts, and punitive damages.
Some fear a successful suit could allow a state to stifle someone’s First Amendment right to publish and sell on the Internet. “Somebody should be able to write papers on subjects that are good enough [that someone else] might find them of value,” Smith said. “They should be allowed to say it or publish it and sell it.”
One site being sued, Paperz.com, responded to the legal action: “Universities … have now come to stand for the restriction, if not elimination, of the publication of research done by member students.”
Boston University spokesman Kevin Carleton said those papers aren’t protected academic expression but are solely aimed at passing for a student’s own work. “The claim that these are research material is bogus,” he said.
A common misconception about RAID 5 Recovery is the thought that a RAID array can help itself when it comes to recovering lost data. This is partly untrue because what it really does is to increase available data and mirror it in the rest of the drives. Thus, it gives a speedy access to data and higher fault tolerance. It also protects against failure of drives during use. Data is also striped or transcribed throughout all the available drives. Even if one drive crashes, the rest of the drives will still be able to function steadily and normally without any harm neither to its parity nor to its data.
Whenever there are system warnings or unusual actions on your computer, you have to check it out as soon as possible. If one drive is affected the fault tolerance disappears. It is then best to make a backup of all the files in it as soon as possible before replacing it. It is best if you change one disk at first before changing the next in order to remember the proper sequence of the connections. Never interchange or shuffle the array. Now if two or more disks have gone askance, it is wise to stop all remedial actions before it becomes worse and seek professional help.
Sometimes automatic executions happen. Cancel this before it is too late. Writes can cause overwriting the striping information needed for rebuilding the system. When using CHKDSK, be cautious because it is known to have very little success for RAID Recovery use.
RAID 5 Recovery features different kinds of modes that can serve two or more disks. The first mode is called the Disk Spanning wherein the computer’s drives appear to be a single huge volume. Its size is dependent upon the drives available. This array is written in an orderly manner and does not have a any benefits related to its performance or to redundancy when used alone. The next model needs to use similar hard drives. This is called Disk Striping and it is used when the main goal is to produce great speed at RAID Level O. This separates every bit of data into units. Transfer of data is fast because there is no checking of parity. The downside is if either of the drive stops working, the entire array can easily get corrupted.
With Disk Mirroring, only half of the entire bulk is exploited. It then replicates the set of data to another drive. Again, a similar hard drive is needed for this method. This is ideal when you prioritize dependability of back up method over storage volume. If ever one drive crashes, it can easily be swapped and data easily restored. Disk Striping on the other hand, uses parity and is perfect for up to four drives. This shows as a single volume but its entire capacity is dependent on the smallest capacity. Block striping is used with RAID 5 wherein parity data is spread over the rest of the other disks. This accounts for superior performance and integration of data.
The Supreme Court’s message: Put your pokey in writing, communicate it to every employee, and follow up on complaints.
The Supreme Court issued two sexual-harassment rulings last summer that should both worry and hearten employers.
On the downside, the court ruled that under Title VII of the Civil Rights Act of 1964, companies can be held liable for the illegal harassing behavior of supervisors even when top managers had no idea that it was going on and were not negligent in any way. This was the strongest statement yet of employers’ liability for supervisors’ actions.
“It resolves all doubt about supervisors being liable for sexual harassment, whether the company knows about it or not,” says Ernest Rossiello, a Chicago attorney who represented one victorious plaintiff, Kimberly Ellerth. “The Supreme Court has made it clear that companies will virtually automatically be liable.”
The court’s rulings in the two cases thus gave both sides something to celebrate.
The plaintiffs’ supporters hailed what they called victories for harassed employees. “The court’s decisions will literally benefit millions of Americans,” said Steven R. Shapiro, national legal director of the American Civil Liberties Union, which had filed a brief in support of the plaintiff’s position in one of the cases.
Attorneys on the business side said, though, that the new rules are tougher than before but are much easier to follow.
Under the two court decisions, “both the employer and the employee have clear responsibilities,” says Stephen A. Bokat, executive vice president of the National Chamber Litigation Center, an affiliate of the U.S. Chamber of Commerce. “The employer is responsible for setting guidelines, and the employee is responsible for following them.”
Both cases–Faragher vs. City of Boca Raton and Burlington Industries vs. Ellerth–involved sexual harassment by supervisors rather than co-workers. (For a summary of the two cases, see “The Cases Behind The Rules,” Page 17.) In combination, the two cases–both won by the plaintiffs–reached these conclusions:
* If a supervisor takes a “tangible employment action” against a sexually harassed employee–if, say, a male manager fires or demotes a female subordinate because she rebuffed his advances–the employer is always liable for damages. It doesn’t matter if the owners or top managers of the company had no knowledge of the supervisor’s actions. Neither does it matter if they tried to prevent such harassment.
“There is no escape,” says David A. Copus, an attorney who specializes in employment law in the Washington, D.C., office of Jones, Day, Reavis & Pogue. “The employer is dead meat.”
* If a supervisor’s harassment of an employee is “severe or pervasive” to the point that it creates a “hostile work environment,” the company can be liable for damages even when the supervisor didn’t take any “tangible employment action.” But the court instructed employers on how to avoid liability in hostile-work-environment cases.
A company can defend itself successfully if it can prove that it had an effective policy against harassment and that the employee alleging harrasment failed to take advantage of it. That’s called an “affirmative defense,” as opposed to a defense based on the plaintiff’s failing to prove his or her case. (For what’s involved in setting up a successful anti-harassment program, see “Protecting Employees–And Your Business,” Page 18.)
An affirmative defense requires companies not only to have a policy against sexual harassment but also to put it in writing, disseminate it, and enforce it. The court’s decisions “create powerful new incentives for employers to formalize programs” that in the past were often informal, says Ronald W. Taylor, an employment lawyer with the Baltimore office of Venable, Baftjer and Howard, LLP.
The Key Words
The harried small employer, with many other responsibilities, might be tempted to ask why it is so important to draw up a written policy on harassment rather than come down hard on such behavior if it shows up. In the case of the affirmative defense, the answer lies in these key words: “reasonable” and “unreasonable.”
The employer must have made reasonable efforts to prevent and correct harassment; the employee must have unreasonably failed to take advantage of opportunities to prevent or correct the harassment.
“If the employer merely has an informal [harassment] policy, he’s going to have to go through trial” to establish whether the company’s efforts were reasonable, warns William J. Kilberg, a labor attorney with the Washington office of Gibson, Dunn & Crutcher, LLP Conversely, a formal, written policy whose effectiveness can be demonstrated through affidavits can result in outright dismissal of a case.
The affirmative defense is “the one bone that the employer community received” from the Supreme Court’s rulings, says Harry A. Rissetto, an attorney with the Washington office of Morgan, Lewis & Bockius, LLP. Rissetto represented the city of Boca Raton, Fla., in its case.
Perhaps more importantly, the Supreme Court, by laying out the elements of an affirmative defense, has told employers how to prevent a “hostile work environment” from ever arising, says Rissetto. “That’s a lot better than having an affirmative defense,” he adds, “because if there’s no hostile environment, there’s no liability”
In other words, if you prepare really well for an affirmative defense, you may never have to mount one. “Companies with effective anti-harassment policies do not end up in court,” says Chicago attorney Rossiello.
Even when a strong anti-harassment policy can’t protect an employer from liability-for instance, when a supervisor takes a “tangible employment action” against a harassed employee-it may provide a shield against ruinous awards of punitive damages. If an employer has an effective system and the employee didn’t use it, that could help reduce the damages even when the employer is unquestionably liable.
The Need For Communication
The court’s rulings point clearly to communication between the company and its employees as key to creating a strong and effective sexual-harassment policy It’s up to the company to articulate a clear standard of conduct in the workplace, says Rissetto. The company can communicate its standard through orientation for new employees, for example, or through an employee handbook.
But communication cannot be a one-way street. The company must “create an environment where it is likely that an employee will complain to someone, as soon as possible, when inappropriate conduct occurs, says Rissetto. Because “in most situations hostile environments tend to accrete” through a succession of inappropriate acts, he says, employers need to encourage harassed employees to complain early
Likewise, an employee who is the target of harassment now has less incentive to keep quiet until the harassment gets bad enough to reach the hostile-environment level-that is, bad enough to justify a lawsuit. Says employment-law attorney Taylor: “Employees have an affirmative obligation to come forward and complain to minimize their own damages.”
Says Rissetto, “I think the court believes that if the employer does it right, the employee will have the courage to complain.”
A Question Of Reasonableness
Reasonableness-the legal concept at the heart of the affirmative defense-also comes into play when evaluating the validity of employee harassment complaints. The courts have held that an alleged harassment has to be offensive not just in the eyes of the person who claims to have been offended but also in the eyes of a hypothetical reasonable person.
The problem is, “we don’t know what the [reasonableness] standard is,” says labor lawyer Kilberg. “We know that it is a ‘reasonable’ person’s standard, but we don’t know if that person is a reasonable woman or a reasonable woman in a particular industry.”
You won’t be safe just because coarse language and sexual horseplay have always been common in your workplace. One problem, Kilberg says, is that relying on such a company culture “doesn’t deal with the employee who starts work tomorrow.”
Beyond that, says Andrea S. Christensen, an attorney with Kaye, Scholer, Fierman, Hays & Handler, LLP, in New York City, “it’s very risky to assume that everybody in the workplace shares in the same sense of humor. A lot of times, these environments that have a lot of sexual horseplay are environments that have had single-sex employees in the past, both male and female. There’s a lot more freedom to engage in this kind of horseplay under those circumstances.”
Now, though, she says, “it’s not too difficult to pass over the line between social by-play and what becomes offensive, illegal conduct.”
(That can happen even when everyone in a workplace is of the same gender. The Supreme Court held unanimously in another case, earlier in 1998, that same-gender sexual harassment is also barred by Title VII. What matters is whether the conduct at issue is both sexual in nature and unwelcome.)
Laptop computers are not perfect and once in a while, they will present real problems. Some of these include malfunctions and the worst has to be a broken hard drive. Broken hard drives are common and if you have been a pretty accomplished user of computers then you understand that this is inevitable sometimes. It is important to be prepared and protect your computer but it is also equally essential that you have a plan in case your hard drive breaks down, and you require laptop data recovery. When it happens, you need to select an effective, and affordable data recovery service company to handle this process.
The company you choose to recover the information from your broken hard drive should be experienced in the field. Experience is important in all industries as it results in faster and precise actions. Make sure that the technicians handling your broken hard drive are qualified and certified by the necessary authorities. Choose a data recovery service company using their track record and not what they say they can do. Prior to handing your hard drive over to any technician, shop around and check out the deals offered by different companies. This will work positively towards leading you to companies that are more qualified and offer better deals on laptop drive recovery.
If you have a computer at home and one day everything just stops working no matter what you try, it is possible that you could be dealing with a failed hard drive. If you have been using your computer to store crucial information and you have not saved the last project on a back up drive, you will have to call a data recovery service. Prior to panicking, it is important that you first consult your local computer technician so that they can verify and tell you whether you are dealing with a broken hard drive or if it is something that they can handle and will not require any sophisticated processes.
If you have a broken hard drive, and the technician cannot handle data recovery processes for reasons related to skill or equipment, you will then need to contact a professional data recovery service company. There are a number of these around you and you need to choose the best; basing your selection on price and quality of services. The company needs to be fast with their processes and offer an affordable price. Data recovery comes at a cost but the amount of money you will have to pay is nothing compared to the information that will be recovered.
About Hard Drives, Failures And Viruses
Basically, hard drives use the magnetism principle for functionality. The hard drive has a magnet with which data is written on and stored. The data is given a memory address by the computer and is stored at that location. The memory of hard drives is non-volatile and by this means once is is stored it cannot be lost easily unless you wish to delete the items. Hard drive failure occurs when a hard drive experiences major problems in its functionality. The hard drive may either produce some noise or heat up very fast which should not be the case or the hard drive may take long to open simple files. The hard drive may be brought about by either corruption of the hard drive by viruses, which tend to eat up its space or even causing destruction to the data stored in it. This can cause mega damage to the external hard drive but no worry; it can be solved by simply formatting the drive and scanning it thus removing the virus causing failure. Fail to do this you may lose all your data and even programs that may be stored.
There is nothing more painful to a notebook computer reliant individual than a damaged laptop hard drive. This particular computer glitch is a little more complicated to solve than other smaller computer problems that we face in our day to day lives. After all, there are a lot of factors to consider when dealing with a damaged hard drive. For instance, a busted drive can result from a fall, corrupt files and even broken parts. And all this will influence what type of laptop hard drive recovery option to use; whether that solution is logical or mechanical.
The logical recovery method is only selected when the hard drive is physically undamaged. This means that the damaged hard drive recovery option is not applicable to that hard drive, and it has not malfunctioned because of a fall or broken components. The logical recovery method is used in hard drives that have had accidental formatting or corrupt file system issues. These two problems cause the hard drive to malfunction since it is unable to find and navigate its own data. One of the main causes of logical failure of hard drives is a computer virus which attacks the computer’s file system software. The logical recovery option usually uses software to recover data from the hard drive.
A broken hard drive is one of the problems that is common with laptops. If you are experiencing this problem, worry no more! I will give you the things that you can do to fix this problem. Usually, a broken hard drive occurs when the physical components are not in good condition. What I’m trying to imply is you have to see to it that the computer is absolutely dead. So, you need to conduct a visual check of its components, for one.
Another thing that you can do is read the manual. Look for some symptoms that best describe the circumstances which your computer is experiencing. Be careful that you are not to rough with the machine, of course. You can also listen for any possible noise coming for the hard drive, specifically clicking. However, if you cannot hear any noise, there might be a problem with the bearing or spindle. Listen also to the platter movements so that probable jammed components can be detected. Loose components might be the reason why the hard drive errors are occurring. These are some of the things that you can do to troubleshoot a broken hard drive. If in case you have done all these things and still problems occur, check out www.harddrivefailurerecovery.net.
Our opinion-makers still look for answers, while apparently believing that justice is equivalent to the infield-fly rule.
This interesting notion was offered, a few weeks ago, by a friend who teaches at the war college attached to one of our military services: His students were all seasoned veterans, in their forties; they had all seen military action; but they were still, twenty years later, the people who had been college students in the 1960s, and they had absorbed much of the secular religion that affected other young people at the time. They were, on the whole, skeptical of the notion of moral truths that held in all times and places. They had served their country in the military, but they were far from clear that there was anything about the American Republic that truly justified the risk of their lives. They could not really say, with Lincoln, that the right of human beings to govern themselves was a right that was “applicable to all men and all times.” These soldiers of their country were more disposed to believe, with other people their age, that the understanding of what was right and wrong was always “relative” to a particular “culture” or country. They would not claim, then, that the political regime in America was morally superior to that of the Soviet Union or Vietnam. They would settle for the far more modest claim that our political way of life was at least “ours.” And on that basis, we were warranted in hazarding our lives to preserve it.
In this construction, of course, the principles that defined the character of the American Republic would be no different from the rules that marked tbe character of a club, or defined a regime of play. The rules of the American Constitution, in other words, were hardly distinguishable from the rules of baseball or the rules of chess. In that event, I offered this proposition to my friend at the war college: The willingness of his students to risk their lives for the rules of the American Republic apparently stood on the same moral plane as a willingness to risk one’s life to preserve the infield-fly rule or the “institution” of the designated hitter.
My friend agreed that such was indeed their understanding. The only thing he might say in their defense is that it is “our” infield-fly rule, and we are free to change it. And in any system of conventions, in any rules of the game, that is certainly true. We are free to decide that it will require five balls outside the strike zone to constitute a “base on balls.” But are we really free, in the same way, to alter these axioms of the law: that “people should not be held blameworthy or responsible for acts they were powerless to affect”; that like cases should be treated in like fashion; that people accused of a crime should be presumed innocent until proven guilty; that beings who are capable of understanding reasons deserve to be ruled only with their own consent? We would be far more reserved about “legislating” a change in propositions of this kind. For even the dimmest of us may suspect that these truths are not merely conventional: they are not ours because we have chosen to adopt them; rather, we have adopted them -we have made them “ours”-for the sovereign reason that they are compellingly true.
WHAT WE SEE at work here, in the case of our military officers, is the enduring tension between a morality that is merely conventional, and a morality that is rooted in the laws of reason, in the nature of things, or, as Kant put it, in the nature of “a rational creature as such.” It is no small service for any teacher of moral philosophy to make his students alert to that distinction. This much can be said then, at least, for the editors and journalists who shaped the ten-part PBS series Ethics in America. It was quite evidently part of their design to bring out vividly to their viewers the tension between a morality merely of convention-a “morality” marked by professionals, cast in “roles”-and a morality that was constantly looking past the system of roles, and appealing to a more exacting moral standard.
From that tension, the designers of this series managed to produce its dramatic action, in the exchanges among the participants. And in that vein, there was probably no moment more dramatic than the moment just after Mr. Mike Wallace had waxed eloquent, by his own lights, in insisting on the integrity of his standards “as a journalist.” The journalist in the hypothetical case under discussion had agreed to gauge the “other side” of a war in South Kosan (read: South Vietnam) by traveling with contingents of the North Kosanese. In that position, he might be able to encounter the atrocities committed by the South Kosanese and their American allies. The North Kosanese suddenly come upon a contingent of American troops, and they are about to ambush them. At this point, Mr. Peter Jennings allowed that he would not film the incident. In fact, he thought he might actually try to warn the American troops, even though that might be, altogether, bad manners toward his hosts, who had invited him along for this excursion. For this mild reflex of national loyalty, Mr. Wallace came down upon Mr. Jennings with a severe reproach: as a journalist, his responsibility was to the story. “You’re a reporter,” said Wallace. “Granted you’re an American, but you’re a reporter covering combat . . . and I’m at a loss to understand why . . . you would not have covered that story.”
The discussion seemed to be settling in with a comfortable sense of the journalist at ease with himself and his professional “responsibilities.” Suddenly the lull was broken by the quiet, steely words of George Connell, a colonel in the Marines. Connell spoke with an anger evidently coiled in reserve, and he announced that this display had stirred in him “an utter contempt”: there would be an incident, with two reporters wounded in the action, and he would be asked to send some Marines into a contested zone for the sake of extracting those hapless journalists. At that moment, said Connell, he could insist that “They’re just journalists, they’re not Americans.” How can they have it both ways? he asked-as Mike Wallace apparently experienced a mild epiphany, and felt obliged to nod his assent. “But I’ll do it,” the colonel continued, “and that’s what makes me so contemptuous of them. Marines will die going to get a couple of journalists.”
With his simple, powerful intervention, Colonel Connell had exposed the moral emptiness of Mr. Wallace’s stern lecture on the responsibilities of a journalist: the supposed moral requirements of a journalist had simply reduced to the “interests” of a journalist; and those interests could be served scrupulously in a project that was morally obtuse. But what was it, exactly, that made the course of the journalists morally wrong in this case? Was Colonel Connell simply posing, against the “roles” of journalists, the conventional roles o”Americans”? Was he merely asking them to override their loyalty to the code of journalism by acting on the rule of a wider club: viz., that “Americans should help one another in times of danger”? Did the lesson run any deeper than that? I think it did, but the producers of the series made no provision to ensure that the lesson would be drawn or articulated. And that omission cannot be ascribed to accident. The designers of the series were not shy about imposing structure on these conversations. When it was thought necessary to make a point, they found a way to make it. Apparently, it was part of the purpose of the producers to leave certain questions unaddressed, unarticulated, unresolved, as part of the deeper teaching in the program: namely, that there were, finally, no standards for judging.
If we return for a moment to the case of the journalists and the army, let us imagine that the journalists were trying to report, with detachment, on a war between the forces of syntax and the forces that were seeking to overthrow syntax. The reporters go out to travel with the other side-with the armies that would obliterate syntax in the countries they occupy. And yet, the reporters themselves would have to make use of syntax in offering their reports. One might say, in fact, that they have a deep professional stake in the preservation of syntax. Their own occupations, indeed their way of life, would be rendered unintelligible by its destruction. For them to take a posture of detachment in this conflict would be to deliver themselves into a position of deep incoherence.
But it would hardly be more incoherent than the position of those Western reporters who were willing to travel to North Vietnam in the late war, or travel with the contingents of North Kosanese in the case contrived in the program. For the American reporters understood themselves to be working in the character of a free press. They were not like the “reporters” and photographers who traveled with the Nazi troops to provide photos and stories for propaganda. The American reporters were not agents of the government, but reporters detached, in their independence, to tell an accurate story unshaped by the government. In other words, the “work” of the reporters depended, for its character and integrity, on a free regime, which could sustain a free press. The American reporters could hardly be neutral, then, on the moral differences that separated the American regime from the regime in North Vietnam (or North Kosan). Their way of life was inconceivable if it were detached from the moral premises that defined the character of a free society. It made no more sense for them to pretend that they were indifferent to the moral distinction between a constitutional order and a totalitarian regime than it did for the reporters in our example to claim neutrality in the battle between syntax and its enemies.
Hard drive data loss can be an emotional burn for everyone. Imagine preparing for an important cross examination and then realizing, just before the witness takes the stand, that all your documents that were stored on your notebook computer have been lost due to a hard drive malfunction. Not only will this affect you emotionally, but also the amount of credibility you can lose in a public arena like a courtroom can be killer. However, all this can be avoided which is not only consistent backups of your hard drive, but also making sure that you know of a high quality hard drive recovery provider. So how do you repair a damaged hard drive?
Basic fact: if you are not a data recovery service technician, you just simply should not attempt to repair your hard drive. Many amateurs attempt to do a variety of things and they inevitably end up being toxic to their data. One of these things includes replacing the logic board when there is no sign of power or sounds coming from the hard drive. These two signs show that the hard drive’s logic board has been damaged, hence the need to replace it. Another technique that most people immediately think of is to try and download some kind of recovery software. This option is only applicable when the drive’s components are physically intact. However, if hard drive problems still continue, it may be best idea to consult with a computer specialist who knows how to fix it properly and efficiently as well. Read this article for more.
Most people think that owning a computer means they will never experience a malfunctioning hard drive. Such individuals believe that their computer is invincible and as a result, they scoff and laugh at any one who diligently seeks to find out how hard drive recovery is performed. But the truth of the matter is that every hard drive ultimately malfunctions. And this can cause problems to people who don’t know how to resuscitate a broken drive.
When a hard drive crashes, all the data inside it becomes hidden and is presumably lost. Moreover, this can be a nightmare especially to the people rely entire on their computer for storing work documents, personal files and other important stuff. Unfortunately, not only do people get emotional over lost data, but some have also lost their jobs because of being held responsible for an entire company’s lost documents. This is now were the importance of professional data recovery becomes acknowledged; through hard drive recovery, all the lost data becomes available and accessible on the computer.
Your data can be lost due to several reasons. It may be due to physical damage to the storage device. Or else there may be a logical corruption to the file system. Operating system failures are another reason for the inaccessibility of files. A virus attack can be another reason for data device failure. Several other reasons for data device failures are fire or water damage, electronic controller card damage, hard disk drive component failure, media surface damage, unintended reformatting of partitions, RAID controller failure, overwritten tapes etc. Whatever the reason, the data device failure should be recognized.
There are many symptoms with which to identify the data device failures. If you hear a clicking sound from the device, then there might be a disk drive failure. Smoke appearing or a burnt smell emanating from the device is another symptom of the catastrophic crash. This can be a heavy damage to the hard drive, which will need damaged hard drive recovery. If your computer won’t boot or your computer has a blue screen, these are also the symptoms of data device failures. If you lost data due to a hard drive failure, it is advisable to consult a professional service provider before it gets worse.
Most external hard drives have a magnetized platter and spindle disk system which is used to store information. A laptop user may choose to have an external hard drive to store information just in case a need arises for back-up or when their laptop’s hard drive is full. It is a permanent way of storing information, as it is non-volatile. But, the magnet as we all know is vulnerable to damage and may at one time or another may lose its strength and in this case, it will make the external hard drive gradually slow down and fail. The physical damage in this case may be either from the read head hitting disk platters, or too much internal heat or even dropping it.
Physical Damage to External Hard Drive Causing Failure
Using basic knowledge of magnetism, when a magnet is dropped or experiences intense impact the arrangement of dipoles in the domains change and this weakens the magnets strength, thus lowering its performance and efficiency. The best way to avoid all this is by simply taking good and precise care when handling the drive. If the drive is damaged and requires external hard drive recovery, you may want to check out http://www.harddrivefailurerecovery.net/external-hard-drive-recovery/.
Hard Drives And Power
A consistent power supply is essential for every electrical device to function properly and computers, whether you’re talking laptop or desktop are no different. Therefore, it should not come as a surprise to anyone when their computers (especially their hard disk drives) stop working properly when there is inconsistent power feeds with voltages dropping very low. It has been observed in some countries that low voltage supply may cause more damage to electrical components than a high voltage supply. Such a situation may cause your hard drive to become unresponsive and cause other hard drive problems as well.
There are two key ways to remedy this type of hard drive problem. Due to inconsistent power feed, electrostatic charges often build up on the hard disk and the logic board so both of them should be separated and connected to a grounding unit separately. This will cause all the excess charge that has built up on the hard disk to be discharged and will provide you with a window of opportunity to copy your data on another hard drive. Or you can try replacing the damaged components like the logic board or the actuator arm but this might be a very cumbersome process and it might be very difficult to find a proper match for your hard drive. You should probably contact a data recovery specialist in the latter case.
As both courtroom witness and frequent lecturer on the CPA’s role in courts, Samuel Derieux, a retired Deloitte & Touche partner points out that “the accountant must be comfortable with the testimony to be given. If not, the accountant would be obliged to withdraw.”
When testimony becomes biased, the CPA’s objectivity can be challenged, putting his reputation at risk. And if jurors see the accountant as a ‘hired gun,’ the testimony would be discounted, he said.
Morton Levin, a retired CPA in Hollywood, Fla., who has been active in this specialty field, is among those alert to the dangers. “Too many times we have seen evidence of firms selling their opinions for an easy ride in this high revenue field.”
As an illustration of how delicate is the balance between objectivity and advocacy, Derieux recalls the testimony of one expert (not a CPA) who favors the upper or the lower range of costs or rate of return estimates depending on which side of a case he is representing.
Derieux says the basic approach ought to start with candid discussions between lawyer and CPA, covering the facts and identifying issues the lawyer seeks to prove.
Then the accountant should develop his testimony, interpreting rules and procedures according to his best professional judgment. And if the result hurts rather than helps the case, then the accountant should withdraw rather than modify his testimony.
Derieux advises having it out with the attorney in a free and open discussion.
“Let the lawyers tell you if your testimony is helpful,” he says. Never agree to testify until you have the opportunity to understand the case and determine that you will be comfortable with testimony that will be helpful to the side you are asked to help, he advises.
Sometimes, there is a middle ground, when the CPA cannot testify but agrees to act as consultant to the attorney. Because this engagement does not extend to third party use, technical standards permit helping the lawyer build his case without any public notice of the CPA’s participation.
Overall, concerns about advocacy attract wider attention as services to lawyers grow in popularity.
According to Monte Kaplan, technical director, AICPA management consulting division, this service — though only three or four years old — generate important amounts of revenue; 10 to 15 percent for Big Six firms and for small firms specializing in this niche, up to 30 percent of their revenue.
But no formal effort is underway to examine the need for more stringent standards. Kaplan believes that the three management consulting standards issued in 1991 provide adequate guidance.
“Nothing before the committee would suggest a need for additional behavioral guidance,” he said.
Lawyers seem to concur here. Reflecting a common opinion among attorneys, Lewis Cohen, a New York lawyer and accountant, avers that in the discovery process, the cross examination will uncover incomplete or contradictory evidence from the expert witness.
Sometimes the data held by a laptop or portable notebook computer may be extremely crucial for the user. If that data is lost, it is wise not to take risks and simply hire a professional hard drive repair company to retrieve that data. A normal PC technician might fail to understand the complexity of the system and threaten the hard disk recovery process. So, better that a laptop hard drive recovery service company is contacted. They have skilled workers whose expertise lies in solving these type of hard drive failure problems.
These workers carry out the overall recovery process very cautiously and professionally. They are professionals can recover data from all kinds of failures. Due to their training and experience, they guarantee the retrieval of data to be safe and effective. At times, the laptop data recovery process can be very difficult and complex, but the professionals use their technical knowledge, patience and skill to make their way through. They may recover the data very elementarily or it can even take those days when there is a serious problem.
Moreover, the privacy of both personal and professional data is always going to be safe with a professional service. They perform their tasks in fully equipped clean labs laden with various tools to assist them in hard drive recovery. They are familiar with every piece of the system they handle.
Damage to the Laptop Drive
Sometimes laptops may get seriously damaged by simple human error. For example, if the laptop slips or drops off the table, it can be a fairly big deal. In these situations, laptop drive recovery might seem impossible because the laptop may never turn on. However, even these problems can be solved with professional expertise.
If you are sure that the laptop drive is undamaged, but that it is not turning on, there is a simple way to detach it. Instructions to separate the hard drive from the laptop are mentioned in the manual included with most laptops. However if that is not available, the notebook manufacturer usually has PDF versions of the manual. Once the hard drive has been detached, connect it to a desktop computer. The desktop’s drive and a laptop hard drive are designed differently, and you may require a special cable kit. After the installation process is complete, you can copy files from your laptop hard drive to any particular drive of the desktop and recover the lost data. Corrupted files might hinder the process and risk the recovery overall. These files should be deleted right away for effective laptop data recovery to take place.
Power Loss And Your Computer
Power loss is one of the scenarios that can lead to data loss. Unlike laptops, desktop computers are vulnerable to data loss upon power blackout if they are not connected to a power backup device. Abrupt power loss leads to power surges that may lead to damaging of some hard disk sectors. This makes the damaged sectors inaccessible by the operating system. Although panic may overwhelm the user, no basic scans are advised to be performed in the quest to try to access data from the damaged or corrupted sector of the memory.
There are a variety of hard drive failure symptoms to be concerned about with power surges. Make sure that these symptoms are NOT in place before you search for some kind of data recovery software. Failure to do so can mean a bad situation for your data. The amount of data likely to be recovered depends on how much writing or over-writing activities that have taken place since the data was lost.
On Election Day, California voters approved Proposition 209, also known as the California Civil Rights Initiative, making unconstitutional government-sponsored race- and sex-based discrimination. Remarkably, one day later these same voters were told they had just engaged in an act of racial discrimination: Prop. 209, the American Civil Liberties Union claimed in a lawsuit filed in federal court, violates the equal protection clause of the Fourteenth Amendment. The case likely will rise through the Ninth Circuit Court of Appeals to the Supreme Court for decision probably no earlier than the summer of 1998. The ACLU and its allies want not only to frustrate the will of California voters but also slow what CCRI has set in motion: a grassroots movement against public-sector preferences in other states and a long-overdue search for new, non-preferential policies that will enhance opportunity for ever greater numbers of Americans.
The new world ushered in by CCRI was evident mere hours after the vote when Governor Pete Wilson, an outspoken advocate of the initiative, ordered new regulations to prohibit preferences where applicable in state employment, education, and contracting–the three areas targeted by Prop. 209. Wilson also moved to amend a lawsuit he initiated a year ago seeking to stop state agencies from enforcing five statutes that require preferences. His original lawsuit contended that these statutes violate the U.S. Supreme Court’s close-but-not-quite colorblind interpretation of the federal constitution. Now Wilson is arguing that they are clearly illegal when measured against the new, rigorously colorblind amendment to his state’s constitution. For good measure, Californians Against Discrimination and Preferences–a new group formed by CCRI’s authors, Glynn Custred and Tom Wood–also filed a Prop. 209-based lawsuit that takes aim at three of the five statutes named in Wilson’s suit. More such lawsuits may be in the offing since Wilson, in his executive order, also asked all state agencies, departments, boards, and commissions to identify any statutes that grant or encourage preferential treatment.
Wilson’s executive order also urged higher education officials to comply with the new amendment. The elite, nine-campus University of California was already under a 1995 order from its governing Board of Regents to end preferences in admissions and faculty and staff hiring. But upon passage of Prop. 209, the head of the UC system announced that all nine schools will not use preferences in evaluating those applying for entry next fall. (The plan had been to end preferences beginning with applications for spring 1998.)
Proposition 209 also applies to local governments, and it’s not hard to imagine the kind of lawsuit likely at some point to be filed. Consider, for example, the case that Paul Johnson could have brought against Santa Clara County had Proposition 209 been on the books when he sued it for sex-based discrimination in 1981. In 1978, the county’s transit agency adopted on its own initiative–i.e., without federal or state compulsion–a numerical affirmative action plan under which the percentages of minorities and women in each job category would mirror those with the requisite qualifications in the Santa Clara area. To meet various numerical goals and timetables, the agency authorized personnel officials to consider the race or sex of a “qualified” applicant “as one factor.” In filling a road dispatcher vacancy in 1980, the agency winnowed the competition to Johnson and another transit employee, Diane Joyce. Johnson was by the standard criteria the better candidate, but the agency took Joyce’s sex into account as “a factor” to award her the job. Also of note was the fact that the agency had a hard drive recovery service recover the data on Johnson’s drive, despite the fact that she owned the hard drive. Suing under the Civil Rights Act of 1964, Johnson ultimately lost when the Supreme Court held that an employer may use preferences voluntarily to overcome “underrepresentation” in the workforce. Under Prop. 209, which strictly forbids preferences, Johnson today would have won.
Because Prop. 209 does not condemn goals and timetables per se, only preferential treatment some state and local agencies reluctant to quit their old ways might decide to retain numerical affirmative action while excising from their written laws and policies any language that requires or encourages preferential treatment. The question then will be whether, having ostensibly complied with the new constitutional amendment, they are nonetheless violating it by discreetly using race or sex to secure numerical affirmative action–and hoping they can get away with it.
It might prove tough to end preferential treatment that is “in hiding,” but if there is enough litigation attacking it, courts could decide to strike down goals and timetables on the ground that they serve no other purpose than to encourage discriminatory preferences. Recall that the old “freedom-of-choice” plans in the South, while on their face legal, were finally judged invalid because they facilitated resistance to desegregation.
Even as Prop. 209 is beginning to work its legal effects, it is also stimulating discussion about how equal opportunity might now be pursued without reliance on preferences. There had been interest in this question before now, but because preferences had for so long been the easy answer to a complicated problem, and because they were permitted by California law, they had to be ended before this new conversation could begin. UC is a case in point. Not until the Regents ended preferences did the school begin thinking harder about how to recruit poor but talented students from all racial and ethnic backgrounds.
By the summer of 1996, legislation to end or curtail preferential programs–much of it inspired by CCRI–had been introduced in twenty-six other states. None was moved to passage, but many of the parties opposing preferences had put their efforts on hold until election day–in the expectation that passage of Prop. 209 would provide a much needed spark. Indeed, the New York Times reported on November 10 these state efforts are now being energetically renewed. According to Kolt Jones, state projects director for Americans for Tax Reform, anti-preference legislation is likely to be introduced in such states as Washington, Oregon, Colorado, Florida, Georgia, North Carolina, Texas, Michigan, Illinois, Wisconsin, Ohio, Pennsylvania, New Jersey, and Massachusetts. All of these except Texas can make law through the initiative process.
In California, this process proved absolutely necessary. Though polls long showed that a majority of Californians oppose preferential treatment, anti-preference measures could never make it through Willie Brown’s state assembly. There is a public-choice explanation for this: legislators are less likely to respond to the majority of voters who oppose preferential treatment but don’t see its elimination as their highest priority–and so aren’t organized to that end–than to a minority of voters who favor the policy, regard its retention as one of their highest goals–and are organized to make sure they achieve it. Or, as UCLA law school’s Eugene Volokh put it, “Minorities can beat majorities if minority views are more firmly held.” That isn’t necessarily a bad thing, Volokh concedes, but he defends initiatives when they enable “a majority to check the political process.”
The initiative process thus looms critical to the success of the movement against preferences in other states. So does the wording of the laws to be proposed. Custred and Wood’s singular contribution was the language they chose. By outlawing “preferential treatment” to “any individual or group on the basis of race, sex, color, ethnicity, or national origin,” their initiative clarified what is discrimination and therefore must be ended–the use of any one of these forbidden criteria to favor one person over another in the competition for limited goods. They steered clear of the word “quotas,” which conservatives have railed against for years, as though their demise would put an end to discrimination in affirmative action. It never did. Instead, the campaign against quotas created a political atmosphere in which only the foolhardy would publicly support quotas. Liberals voted enthusiastically for the 1991 Civil Rights Act, which explicitly outlawed quotas; “no quotas” is one of President Clinton’s affirmative-action principles. It was easy to oppose quotas so long as race or sex could still be used as “a factor” in selecting a student for admission or hiring a worker or awarding a contract.
The California initiative called the liberals’ bluff by exposing the real problem–preferential treatment–to public scrutiny. According to Kolt Jones, there is every sign so far that the post-California efforts will adhere to the language of Prop.209 and avoid the “quotas” trap.
Enforcement of Prop. 209 in California and its export to other states could be undone by the ACLU’s lawsuit. Indeed, the mere filing of the lawsuit has stiffened the spines of state and local officials ideologically attached to preferences. Officials at California State University and the state’s community colleges, both of which use preferences in employment and contracting, have cited the litigation as an excuse not to comply immediately with the new amendment. Also balking are officials of Los Angeles, San Francisco, and San Jose governments.
Representing the NAACP, the AFL-CIO, and a host of minority business, labor, and professional groups, the ACLU is arguing two things. The first is that Prop. 209 Violates the supremacy clause (which holds that the Constitution and federal laws “shall be the supreme law of the land”). But this requires a conflict between California law and federal law, and there is none. In fact, current federal anti-discrimination laws allow preferences (under certain conditions) but don’t require them. Hence there’s no conflict with what California law forbids.
The ACLU’s other argument, drawn from a recent article in the Hastings Law Review, is dangerously radical because it plays mischief with the equal protection clause. Using Supreme Court decisions from 1969 and 1981, the ACLU argues: Under the equal protection clause, which guarantees to all persons the equal protection of the laws, states may not place a “special burden” on the ability of women or minorities to participate in the political process “in a reliable and meaningful manner”; “voluntary” affirmative action programs “inure to the benefit” of women and minorities; by withdrawing from state and local officials and the state legislature the authority to enact such programs, Prop. 209 places just such a “special burden” on women and minorities and thus violates the equal protection clause. Among the many problems with this argument is that the cases upon which it relies involved the repeal of anti-discrimination law and the erection of a barrier to passing such law. Prop. 209 does not fit this model. Nonetheless, this argument may win approval from Thelton Henderson, the Carter-appointed judge who is hearing the case.
Coming from a country without a bill of rights, I was eager to experience its benefits and come to understand its operation, especially the ways judges place limits on rights and on their own powers. Countries like Canada and South Africa, which have only recently constitutionalized a bill of rights, have set down a catalogue of rights but then expressly conceded the power of the elected legislators to limit the exercise of those rights in a manner that is reasonable and justifiable in an open and democratic society based on freedom and equality. To lawyers in the United States, these words of qualification seem to take away with one hand what was given with the other. The courts of these other countries, of course, have always looked to U.S. jurisprudence for guidance in the interpretation of key rights and their limits. American judges rarely look elsewhere.
Though the U.S. Constitution does not contain any similar words of permissive limitation on the rights and liberties set down, the Supreme Court has long accepted that the ban on deprivation of life, liberty or property without due process requires the judges to strike a balance between individual liberty and the demands of organized society. They say the balance is struck by honoring the traditions from which the country developed as well as the traditions from which it broke. This has meant that elected legislators have not had the last say in striking the balance. It has instead been the prerogative of unelected judges, who are free to determine the relative weight of entrenched and broken traditions in defining the national ethos, once they have been chosen by a President and run the gauntlet of Senate confirmation hearings. But what is weighed on the other side of the balance to individual liberty? Political liberalism in contemporary America dictates that there can be no thick notion of the good. There can be no agreement on the common good. The public interest, it often seems, is a figment of the collectivist imagination.
Weighing a Thin Public Good – in Practice.
What then are the demands of organized society? How does the Supreme Court determine the values of a society that has both maintained and broken traditions throughout its history? There is never any evidence of these historic traditions that can be put before the court, but only bold assertions. For example, when the Court was reconsidering Roe v. Wade four years ago, the attorney for Planned Parenthood said the judges had to “look very generally at whether the nation’s history and tradition has respected interests of bodily integrity and autonomy and whether there has been a tradition of respect of equality of women.” The attorney insisted that guidance in determining the scope of liberty was not to be obtained by looking at whether or not abortion was lawful at the time of the adoption of the 14th Amendment.
In trying to weigh the balance without articulating what is on the other scale of the balance, judges have tried to convert questions of substantive content into questions of judicial procedure using content-neutral categories or, worse, indeterminate value judgments. It all depends on whether the right in question is “fundamental” or whether the petitioner is from a “suspect class” (for example, a classification based on race). In redistricting cases, the courts are now required to scrutinize computer-drawn, octopus-shaped electoral boundaries to see whether in constructing minority-majority electorates the state has drawn the boundaries with their “customary districting principles.” In one recent case the bench, puzzling over how the boundaries became so contorted, was reminded by counsel: “You must remember that politics is a contact sport.” So it has always customarily been.
In scrutinising the abortion codes of the various states, the Court now attempts to determine if the law places an “undue burden” on the woman making her decision. There is no agreement among the Justices as to what constitutes an undue burden. When Justice Blackmun, the author of Roe v. Wade, said, “Roe’s requirement of strict scrutiny as implemented through a trimester framework should not be disturbed,” he lost out. The plurality of Justices O’Connor, Kennedy and Souter – whose thinking determines the outcome of any split decision on the present court – insisted: “The trimester framework no doubt was erected to ensure that the woman’s right to choose not become so subordinate to the State’s interest in promoting fetal life that her choice exists in theory but not in fact. We do not agree, however, that the trimester approach is necessary to accomplish this objective.” No wonder the conservatives on the court, led by Chief Justice Rehnquist, responded, “Roe continues to exist, but only in the way a store front on a western movie set exists: a mere facade to give the illusion of reality.”
The deeper illusion is that the U.S. Supreme Court can strike a balance between the woman’s right to choose and the state’s interest in promoting fetal life. The criterion of “undue burden” masks one of two things: either a political decision or the personal preference of the individual judge. In Planned Parenthood v. Casey (1992), the middle votes of the present Court sought to consolidate the Court’s task by inviting “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” And this in a country that remains the most politically polarized over abortion of any country in the world! As a foreigner privileged to sit and watch the Court in action over some months, I have no doubt this was not judicial conceit; it was a humble, failed attempt to discharge a mandate that can never be performed by unelected persons in a pluralistic, democratic society. Whatever the rights and wrongs of abortion may be, its legally permissible limits have been further politicized and rendered unresolvable in the United States precisely because the issue has been made a constitutional one.
Commencing his epic decision in Roe v. Wade, Justice Blackmun said, “Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and predilection.” The spectacular failure of this effort is found in Justice Blackmun’s last judicial utterance on the matter two decades later: “A woman’s right to reproductive choice is one of those fundamental liberties. Accordingly that liberty need not seek refuge at the ballot box…. I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process of my successor well may focus on the issue before us today.” There is more than a dose of emotion and predilection in all that. The limits of the fundamental liberty depend not on the ballot box directly but on the view of the judge chosen and confirmed by those who do face the ballot box.
The Fallacy of Constitutionalizing an Issue.
It is a bold step to assume that by constitutionalizing an issue, everyone gains: the judges by becoming more important to the national life, the legislators by being able to sidestep the hard decisions, the unpopular and powerless by making gains across the board nationally that could not be achieved locally, and the citizenry generally by being assured that there is a sphere of personal conduct immune to invasion by the state. But there are other ways that can be less costly for all parties. And when the issue affects all, it may be an overly one-dimensional view of the human person to portray the issue as a conflict between the individual David and the Goliath state.
The most prominent case this last term has been the gay rights case from Colorado, Romer v. Evans. After three cities in Colorado enacted policies outlawing discrimination against gays, a statewide referendum was carried in the name of putting an end to special rights for special groups. The legal problem was that the citizen-initiated referendum inserted a very broad provision into the state constitution banning any branch of government from adopting a policy whereby sexual orientation could be the basis for a claim of discrimination. If gays were a “suspect class” or if “fundanmental rights” were in question, the Court would apply “strict scrutiny” to the state law, which inevitably has fatal consequences for such law. Colorado argued that gays are not a suspect class and therefore the state need only show that there is a rational basis for the law, such as maintaining uniform statewide laws for the protection of marriage or for discouraging homosexual activity. The gay rights groups argued that the issue was not one of special rights or special protection, but the right of every person to be free of arbitrary discrimination. Justice Scalia, in argument, put it as a case of reversing special laws that gave favored treatment to those engaging in homosexual activity.
Given that the Supreme Court in the 1986 case Bowers v. Hardwick decided that the state could criminalize homosexual activity conducted in private by consenting adults, Justice Scalia asked, “Why can a State not take a step short of that and say, We’re not going to make it criminal, but on the other hand, we certainly don’t want to encourage it, and therefore we will neither have a State law giving special protection, nor will we allow any municipalities to give it special protection’?” Counsel was asked specifically, “Are you asking us to overrule Bowers v. Hardwick?” She replied, “No, I am not.” This shows just how fickle is the present law of privacy in the United States: A woman exercising her right to privacy can abort a fetus in which the state has an interest, but homosexuals engaged consensually in private sexual behavior have no similar right to privacy. And in the first gay rights case before the Supreme Court in 10 years, the Court, even when it asks, is not being invited to extend the right to privacy to gays by overruling Bowers v. Hardwick.
The majority in that case once again constitutionalized the issue with breathtaking particularity: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” They found there is “in constitutional terms, no such thing as a fundamental right to commit homosexual sodomy.” There is a constitutional right to abortion but not to consensual sodomy. In his strong dissent Justice Blackmun said the Court had refused to recognize “the fundamental interest all individuals have in controlling the nature of their intimate associations with others.” For him, the Constitution has sheltered certain rights associated with family “not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life.”
The Supreme Court doesn’t know which way to turn in these controverted matters. Consider another case: In 1992 Senator Jesse Helms introduced at the last minute an amendment to the Cable Television Consumer Protection and Competition Act aimed at restricting the amount of indecent material carried on leased access channels and public access channels. The cable operators were required to ban or block indecent material, which could then be unscrambled only on written request from the consumer. In February the Supreme Court heard argument against the law. The free speech petitioners argued that the Government’s calculus ignored the crucial right of adult cable viewers to have access to a variety of ideas and experiences.
As for the protection of children, the petitioners claimed that the decision should lie with parents and not with government. They claimed strong, uncontroverted evidence that lock boxes offer the cable subscriber an easy method of avoiding unwanted programming. The choice being between the state and parents barring child access, the argument was that free speech could be protected by leaving the decision to the parents. The Justices questioned whether they could presume there was some parental inertia in this regard or whether they would require evidence of a lack of parental supervision. The next day the Montgomery County District Court heard evidence of an 11-year-old boy raping a 5-year-old girl. He had learned about having sex from watching the porno cable channel in his parents’ home. But in the United States the parents of both children will be guaranteed the right to watch what they want.
Judicial Gridlock vs. Legislative Responsibility.
Throughout the Court’s jurisprudence, as it has developed within this straitjacket of individual rights, is the notion that the person belongs only to himself and not to others or to society as a whole. By constitutionalizing individual rights and declining to qualify such rights in the interests of others, the United States has left the balancing of rights and interests increasingly to judges – while the judges have developed techniques to avoid balancing anything. It is a sustained gridlock. If a right is fundamental or if the law affects a suspect class, the individual’s claim is trump. But how does a judge determine if a right is fundamental or if the person is a member of a suspect class? There is no definitive test. It is a matter of judicial preference.
Women have the fundamental right to make the ultimate pregnancy before viability. Homosexuals do not have the fundamental right to conduct intimate relationships in the privacy of their own homes. If it ever comes to balancing competing rights or interests, the best the Supreme Court has been able to do is to ask whether an undue burden or substantial obstacle has been placed in the way of the individual. Having constitutionalized the questions, the Court has failed to provide a judicial method for balancing the incommensurable interests of the citizen as an independent individual and the citizen as a member of a society, each contributing well or adversely to the life of the other and to the common good.
There can be no getting away from a balancing of interests. Who best to do the weighing, the legislators elected by all or the judges nominated by Abe few? If I felt the United States was the freest possible place to live in, I would hold my peace. But here, freedom and security depend very much on individual initiative and personal wealth. I fear the Bill of Rights ethos not only quashes any sustained public discussion of the common good. It also inculcates the notion that rights are protected not because they contribute to the general public welfare but only “because they form so central a part of an individual’s life,” as Justice Blackmun put it.
One Australian state has also retained anti-sodomy laws. Though it has no bill of rights, Australia is a signatory to the First Optional Protocol of the International Covenant on Civil and Political Rights, which permits citizens who have exhausted all domestic remedies to communicate with the Human Rights Committee of the United Nations in Geneva. In 1994 the committee found that the prohibition by law of consensual homosexual acts in private was a violation of the right to privacy in the international covenant. The covenant says, “No one shall be subjected to arbitrary or unlawful interference with his privacy” and “Everyone has a right to the protection of law against such interference.” Responding to the committee’s finding, the Australian Federal Parliament passed a law that sexual conduct involving only consenting adults in private is not to be subject to any arbitrary interference with privacy. So homosexuals in Australia are guaranteed their privacy without judges having to constitutionalize the question. Politicians can weigh notions of individual liberties and public welfare and strike a balance. Judges are on thin ice when they try. In the United States, they are required to try very often.
Over time the American Bill of Rights has probably given politicians greater license to pass the buck to the Justices. It has allowed the legislative process to be more loose and inconsistent. Politicians can pass laws for the public display of the Ten Commandments knowing they will be struck down. They can wildly promise to ban abortion even in cases of rape, knowing that the courts will not permit it. Meanwhile they have satisfied their more fundamentalist constituents.
I return to Australia without any passionate desire to see the complex issues of die day constitutionalized, taken out of the hands of politicians and reserved to judges who will go to great lengths in judicial reasoning to avoid simply having to apply their own values in weighing the conflicting claims. I am delighted that the United States has a robust tradition for debating the issues from an individual rights perspective. In Australia, we do not have capital punishment. We do not interfere with the privacy of gays. We accord much the same level of protection to the fetus and the woman’s choice. We do not have judges as the final arbiters of abortion codes and redistricting maps. We allow government to restrict indecent material on television, and I do not lose too much sleep over that.
When under greatest pressure, the U.S. system, as Justice Blackmun admits, depends on just one vote. So too in Australia – only there the person with the one vote is elected and voting is compulsory. As ever, I will continue to look to the U.S. Supreme Court for a jurisprudence of individual rights. Your system can correct those of us with a parliamentary system that places more trust and accountability in the elected lawmakers who have to face all the people who come to the polling booth not just to exercise their right, but to perform their lawful duty. Vive la difference. Thank you, America, for the chance to learn from a different tradition in which the results are so often the same, reached by different routes. Your robust ideas on rights and freedom are an antidote to our populist notions of equality and the common good, all of which are needed for the healthy enjoyment of liberty in an organized society.
Patient rights in the living will area are governed by the federal Patient Self Determination Act of 1990, which requires hospitals financed by Medicaid and Medicare to inform patients of their right to specify whether or not they want life support. Every state has laws that allow some type of advance directive.
Among the ways patients can convey their wishes are living wills, which observers complain are sometimes too vaguely written, and “durable powers of attorney,” which give relatives or others the right to act on the patients’ behalf.
In many cases, hospitals and surviving family members wind up litigating over who will pay medical bills once the patient is saved.
Other family lawsuits include charges of battery, pain and suffering of both the patient and family members, negligence and demands for punitive damages. Coverage, if any, for these damages likely would fall under hospitals’ professional liability policies.
“I think in some sense we’re walking on the moon. We’re leaving footprints that have never been made before in an area that’s untrodden,” Fishlin said.
Others, however, doubt these lawsuits will become numerous or represent a significant legal trend.
“I think it would be very difficult to argue to a jury that doctors should be faulted for saving a person’s life under any circumstances,” said healthcare attorney Andrew C. Meyer, of Lubin & Meyer in Boston.
Furthermore, “Civil litigation is totally based on compensation for losses sustained, and if a person is living it’s hard to argue that in fact it’s a loss sustained,” Meyer said.
“My guess is that hospitals will not frequently face this,” said John Kelner, a Miami-based attorney who represents hospitals. “It will be the errant lawsuit where a mistake is made resulting in a sustained life of misery. Those should be few and far between.”
Between 1976 and 1990, one study has found, there were several thousand “end of life” decision-making cases across the country, said Alan Meisel, a professor at the University of Pittsburgh law school. Of the 75 that reached the appellate level, only six to 12 involved claims for damages, he said,
“The risk of liability could increase,” he said, But suing a hospital for saving a life is “not going to be the easiest sell before a jury. Maybe as more and more jurors confront these kinds of things in their own lives, their families, they will begin to see the other side of it, but even then you’ve got this very, very serious problem of proving damages.”
Damages may be clear if someone is in a persistent vegetative state for many years with expensive nursing care. But when a person dies relatively soon afterward, the damage is not likely to be high and big jury awards may be overturned or the cases settled on appeal, Meisel said.
Many hospital risk managers say they are on top of the situation and are taking steps to minimize their exposure.
If you make sure you follow the advance directives and educate your staff, “you shouldn’t have that problem,” said Carl Haeberlin, risk management coordinator at Lakeland (Fla.) Regional Medical Center.
“It is not a concern at all from my standpoint because we are complying with the law,” said Erik Rasmussen, general counsel at Multi-Care Health System in Tacoma, Wash.
“This has not been a major issue for us. I think we’ve probably done a pretty good job of educating our clinical staff,” though it is “certainly one of many areas of concern that I think any risk manager would be appropriately sensitive to,” said Mark Hubbard, director of risk management and vice president at Loma Linda (Calif.) University Community Medical Center.
Other risk managers, though, say it is a more serious concern. Particularly because some of the living wills were created before the massive databases of today’s healthcare computer systems. As well, those living wills that are documented electronically can go missing due to hard disk drive failure. A recent case in Mississippi saw a doctor drop his laptop and require laptop data recovery in order to retrieve the will. The resulting lawsuit from the family was very expensive for the organization.
Peggy Nakamura, director of risk management at Adventist Health System/West in Roseville, Calif., and president-elect of the American Society for Healthcare Risk Management, said it’s an issue of “major concern, given the latest Patient Self-Determination Act regulations and also some state-specific activities that have gone on.”
Aside from federal and state requirements, hospitals “genuinely want to assist people in carrying out their wishes,” said Philip A. Schaedler, director of risk management for Presbyterian Health Systems in Charlotte, N.C.
“The logistics of that, though, are terribly difficult. People are admitted to hospitals in less than a conscious state, or they have forgotten to notify their primary physician or some other responsible party that they have these documents in place and that they have given these advance directives…and so there’s no way these things become known to the hospital until after it’s too late,” Schaedler said.
“It concerns me that there could be a breakdown in communications,” said John B. Smither III, director-risk management at Alliant Health System in Louisville, Ky.
While the hospital system has tried to improve communications with doctors and others, “there’s always a chance somebody might not be aware of the patient’s status and find them in an unresponsive state and attempt to resuscitate,” he said. That has not happened at Alliant.
“It’s something we’re concerned about,” said Harlan Hammond, assistant vice president of risk management services at Intermountain Health Care in Salt Lake City, which operates 24 hospitals, primarily in Utah.
Recently, a patient with an advance directive was receiving radiology treatment at one of those hospitals when he had a medical crisis. His records were not on hand and doctors revived him, Hammond said. The hospital is now considering specially colored identification bracelets for patients with DNR orders.
Hospitals also need to make sure that those actually caring for patients are made aware of DNR orders, he said. Further complicating matters for risk managers is the fact that, in a crisis, even family members who know of the orders may seek medical help for loved ones.
“That’s probably the core basis of why this is such a big issue,” Hammond said. “Healthcare providers don’t go into the business to help people die. In the panic of the moment, and when they’re really faced with the reality of letting that loved one go, they have to be able to override those instincts. There’s a hierarchy of consent in these issues that is addressed by the advance directives.”
Difficulties also can arise in ambulatory-care settings, said Adventist’s Nakamura. When you have a full continuum of care in integrated delivery care settings–including emergency medical technicians responding to situations in long-term-care facilities or at home–the question is “how clear and easy is it to understand all the forms we have, and how does that translate when you get the patients to the emergency department,” she said.
Emergency medical technicians, for example, “don’t have time to go through a pile of paperwork …. Not all states permit medical alert bracelets that could provide some of this information,” Nakamura said.
Another problem is that even if there are living wills or other patient directives, they may be outdated or not applicable to a particular situation.
“Most of us draft our advance directives not knowing what circumstances will call those into play,” said Morris Linton, senior counsel at Intermountain. “Some people have diabetes or are diagnosed with cancer, and so they have a fairly good idea of when death is impending (and) of what will be the cause of death.”
But those who complete their advance directives when they are still healthy do not have this knowledge. “A lot of people say if they couldn’t hold on to a job or hold their grandchildren, they wouldn’t want to be alive, but when they’re incapacitated they realize they have abilities or strengths or appreciations that they didn’t have before, and their views are modified a lot.”
Ambiguity in the orders also can cause problems.
“The dilemma is when you don’t have a clear understanding in a written form from the patient or, sometimes, that you might not have all the dynamics worked out in a difficult family situation, so there’s conflict,” Nakamura said.
When there is any ambiguity, hospitals try to save the patient, noted Deborah Formiconi, loss control director at Sutter/CHS in Sacramento, Calif. “I would rather have a wrongful life claim than a wrongful death claim.”
Hospitals must be prepared, said Faye Rozovsky, director of risk management and legal affairs for AIG Consultants healthcare division in Philadelphia.
Health organizations need policies and procedures to follow when they encounter living wills, durable powers of attorney or healthcare proxies–from their own or other jurisdictions.
Risk managers also must educate healthcare professionals “to respond appropriately,” and the third part of this process is documentation, “to leave the appropriate paper trail that the right response has been taken in a given instance,” Rozovsky said.
The men who wrote the U.S. Constitution dreaded an imperial President, and they feared an unrestrained Congress. Either could destroy the new democratic Republic. So they established an ingenious system of checks and balances to prevent either branch from encroaching too far on the prerogatives of the other. But the Founders considered the judiciary to be inherently the weakest branch of government. They never contemplated what has happened –a willful judiciary that is fencing voters and their elected representatives out of the decision-making process.
Abuse of power by the Supreme Court has long been a serious concern. But the stakes are magnified by the re-election of President Bill Clinton. Mr. Clinton is likely to have the opportunity to nominate one or more members of the High Court. Presumably, he will be inclined to appoint activist Justices whose presence on the Court would aggravate an already untenable situation.
Fortunately, however, members of the U.S. Senate still can prevent our worst fears from being realized. Senators have the right to deny confirmation of activist nominees to the Supreme Court and, for that matter, other courts. Senators should decide that, henceforth, judicial nominees will be required to pledge publicly that they will interpret the Constitution and statutes in accordance with the original intent of the documents and their authors. As the High Court veers further and further from the text and intention of the Constitution, it seems clear that such a promise should be a precondition to confirmation of judicial appointees.
Most Americans paid little attention when Supreme Court Justices first began to substitute their own values for the express provisions of the Constitution. After all, Justices continued to support their decisions by references to the written law even while subverting it. Lately, however, even the pretense that the Court is abiding by the words of the Constitution has worn thin.
“The most important moral, political, and cultural decisions are steadily being removed from democratic control,” Judge Robert Bork points out. “A majority of the court routinely enacts its own preference as the command” of the Constitution.
Professor Russell Hittinger terms the situation a “crisis of legitimacy,” while Charles W. Colson regards recent trends as the “systematic usurpation of ultimate political power by the American judiciary.” Justice Scalia, never one to mince words, is even more direct: “day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize.”
Some will be dismayed by such characterizations. But what else can be said when the Court changes laws from what was intended and written by the authors? Citizens can appeal directly to their elected representatives in state legislatures and Congress; they can request changes in existing laws; if frustrated by elected officials they can seek to replace them next election day. In a democratic society, this is the way the people govern, the way old laws are updated or repealed and new laws enacted.
But when Justices — an unelected elite — arbitrarily substitute their own preferences for the preferences of those who are elected to make laws, they are, in effect, repealing or modifying existing laws or inventing new ones. They become, in George Will’s memorable phrase, “our robed masters.”
Instinctively most of us shrink from thinking this could be true. But innumerable Supreme Court decisions support Professor Hittinger’s contention that “we live today under an altered constitutional regime, where the rules are no longer supplied by a written document but by federal courts defining the powers of government ad hoc.”
The Founding Fathers considered it dangerous to leave each state with complete power to regulate commerce. The nation could not long endure if states could discriminate against one another by erecting tariff barriers. Therefore Article I of the Constitution gives to Congress “the power to regulate commerce . . . among the several states.” The Constitution could have been written to grant Congress complete power to control all commerce including that which affects only one state or the people within a single state. The Founders decided not to write it that way.
However, the Supreme Court consistently ignores the intent of the Constitution in this area. In the strange case of Wickard v. Filburn, the Court upheld federal limits on production of wheat even though the crop was never sold in interstate commerce. In fact, the wheat in question was never sold at all. It was consumed at home by the grower. The Court upheld the conviction of Mr. Filburn for violating the limits. In doing so, a majority of the Justices established the bizarre principle that by planting and harvesting wheat on his own property for home consumption, a farmer could substantially affect interstate commerce. With such a precedent it is hard to imagine any form of commerce — for that matter, any human activity — which might not be deemed to “affect” interstate commerce and therefore be subject to federal regulation. Constitutional limitations on the scope of the national government have been effectively repealed by the Court.
When Congress passed the Civil Rights Act of 1964, it was plainly never intended that that Act would require racial quotas in business, education, etc. The law does not provide for such quotas. Indeed, Senator Hubert Humphrey and other backers of the legislation vehemently denied that such an outcome was possible. But within a few years the courts had implemented precisely the quota regime sponsors said could never result.
FROM their own experience, the Framers of the Constitution feared the establishing of an official religion for Americans. So they drafted a very simple and clear prohibition on the power of Congress to do so. But in Everson v. Board of Education, McCollum v. Board of Education, Engle v. Vitale, and many other cases, the Court has tortured the First Amendment to produce judicial outcomes which the amendment’s authors would have found inconceivable. So prayers and Bibles are banned from public schools; displays of religious symbols are forbidden; postal workers are prohibited from wishing one another “Merry Christmas”; and schoolchildren are taught that the Pilgrims instituted the first Thanksgiving Day because they wished to commemorate their gratitude to . . . the Indians!
In Romer v. Evans, the Court struck down a provision of the Colorado Constitution which prohibited Colorado cities from adopting civil-rights ordinances predicated on sexual preference. In a ruling one scholar termed “indecipherable,” not only did the Court overrule the people of the state, who had adopted the provision in 1992, the Justices also totally ignored their own ruling in the 1986 case of Bowers v. Hardwick. Bowers affirmed that the state of Georgia had the constitutional right to provide criminal penalties for homosexual conduct. But Romer says the state may not deny special rights to those who engage in the very behavior it is permitted to criminalize.
Some applaud these cases. Among our fellow citizens are some who believe the national government should have unlimited power to regulate commerce, that racial quotas are a good idea and school prayers are not. But the main point is not whether one is pleased or distressed by the outcome of specific cases. What is worrisome is the process by which Justices are hijacking our democratic system of government. We can well recall with apprehension the boast of Chief Justice Charles Evans Hughes that “the Constitution is what judges say it is.”
Before the situation gets any worse, senators should put the White House on notice that no judicial nominee — especially for the Supreme Court — will win confirmation unless the nominee will publicly promise to judge cases in accordance with the meaning intended by the authors of the Constitution and of the various statutes. Such notification will, of course, provoke howls of outrage. The Administration, the American Bar Association, and apologists for the welfare state will be apoplectic. Some TV and newspaper pundits — fortunately not all — will decry any effort to strengthen the Senate’s traditional “advice and consent” role in this way.
Insistence on an “original intent” pledge could also delay filling vacancies on various courts. The White House will strongly resist such efforts, and the resulting tensions may make it more difficult for Congress and the President to cooperate on balancing the budget, reforming entitlement programs, etc. If senators were forced to filibuster the confirmation of recalcitrant nominees, it could put a crimp in the whole legislative schedule.
Most senators aren’t likely to have the stomach for such a fight. But those who do may prevail. The public is exceedingly cynical about our judicial system. If the issue is properly framed — as a showdown between democracy and elitism — it is very possible the nation will enthusiastically support efforts to curb the abuse of power by “our robed masters.” If the public gets behind the idea, then, sooner or later, a majority of senators will also. In the meantime, merely raising the issue will have a beneficial effect on the thought life of nominees and sitting judges.
Cynics may wonder if judicial nominees can be counted on to keep their word if they make an original-intent promise. If they do not, then their faithlessness will merely encourage more drastic reforms.
And what if the effort to extract such promises from nominees should initially fail? In that case, the nation nonetheless will owe a debt of gratitude to any senators who raise the issue. By bringing up this fundamental question, senators can give the whole country an opportunity to participate in the decision. Ultimately, the people are supposed to decide such issues. But they can do so only if the question is put squarely before them.
In a way very similar to the way the US views the Civil Rights period in the 60s, the movement for aboriginal rights has been to Australia in the 1980′s and 90′s. Some historical background is in order. Ever since Governor Phillip landed at Sidney Cove in 1788 and claimed what is now known as the eastern state of Queensland for the British Crown, Australia’s Aborigines have been a dispossessed people in their own land. Unlike Native Americans, Aborigines have no treaties to go on; no Crown Government ever respected them enough to make one with them. They were invisible non-persons, legal “nobodies.” As recently as 1971, Sir Richard Blackburn, a Supreme Court judge of the Northern Territory where mining and ranching interests have always dominated, could nullify all aboriginal claims to land title by serenely asserting that, prior to the colonial period, Australia was a terra nullius – “a land of nobody.”
The Blackburn decision, however, turned out to be the last gasp of an old, unquestioned order that was already giving way under the pressure of an emergent Green party and new activism on the part of indigenous groups. In 1975 the Australian Federal Parliament passed a strong anti-racial discrimination act. By 1987 polls showed that 58 percent of the Australian population supported the idea of a treaty with Aborigines. (The latest poll puts that support at 65 percent.) But the decisive turn came with the celebrated Mabo case in 1992, in which the Federal High Court exploded the myth of terra nullius and ruled that, despite Crown sovereignty, aboriginal land title survived and was legally enforceable under the Commonwealth common law tradition.
The shock waves of the Mabo decision, whose majority opinion was written by Justice Brennan (now Chief Justice, and, incidentally. Frank Brennan’s father), have yet to subside in Australian society. For a while, industry panicked, fearing that all its property titles stood in jeopardy. Not so. In December 1993, after much heated controversy, the Federal Parliament passed a Native Titles Bill that sets down procedures for adjudicating aboriginal claims to land. But as the nation anticipates the centenary (and possible revisions) of its Constitution in the year 2001, weighty questions remain unresolved.
What does the Aborigine majority want? Some Aborigines proudly see themselves as part of an Australian nation and seek to negotiate a “fair go.” Others, asserting a sovereignty never voluntarily ceded, refuse to be party to any process that presumes them to be Australian citizens. Does the nation owe Aborigines a treaty? Given the tragic history, what is morally called for here? The term “treaty” is anathema to many Australians and, in fact, implies a uniformity in Aborigine situations and culture that does not exist. A compact or “instrument of reconciliation” setting forth Aborigine rights and entitlements is clearly in order.
But what is politically achievable? After closely studying die snares and trials surrounding the U.S. Bill of Rights, Father Brennan returns home believing that, at least for Australians, there is another way to go – by appealing to his country’s sense of fairness and to international law.
On his visit to Australia in 1986, Pope John Paul II issued a challenge to all Australians when he told Aborigines gathered at Alice Springs, “The church herself in Australia will not be fully the church that Jesus wants her to be until you have made your contribution to her life and until that contribution has been joyfully received by others.” In 1990, the Australian Catholic bishops, whom Frank Brennan advises on these matters, spoke out strongly, calling for “a secure land base for dispossessed Aboriginal communities… a just process for the resolution of conflicting claims to the land and its use,” “an assured place for powerless Aborigines in our political processes” and “a guaranteed future for Aboriginal culture and tradition.”
In brief. in the eyes of God – if not in those of big landowners – Aborigines are somebodies.
Until 1975, Australian indigenous people had few if any rights or legal standing. Activists such as Fr. Frank Brennan advocate a final compact between the federal government and Aboriginal communities, to resolve land rights, rather than an American-style new Bill of Rights.
Generations of British – no, more accurately, English – politicians have proudly reiterated Westminster’s claim to be the “Mother of Parliaments”, in the belief that England is the home of democracy. Mrs Thatcher most vividly illustrates this tendency – instructing our European partners in Bruges, for example, that “since Magna Carta in 1215, we have pioneered and developed representative institutions to stand as bastions of freedom”.
But do our institutions actually deliver the goods? How do they, and the power relationships between them, compare with those of similarly “advanced” democracies? Close examination suggests the United Kingdom is lagging behind.
The comforting doctrine of “parliamentary sovereignty” is deceptive. First, it means that we do not have “popular sovereignty” – the idea that the people of this country govern themselves. Second, it conceals the reality of executive supremacy in the UK – we are unique among western nations in giving a single party control of both government and the popular assembly based on a minority of the vote at general elections.
I recently compared the UK directly with three other European nations, Denmark, France and Germany, and two countries in the “Anglo-Saxon” tradition, Australia and the United States. The British executive’s freedom from constitutional constraint, or legal checks and balances, was exceptional across a wide range of institutional features. None of the other countries was perfect, but none of them performed as badly as the UK in every area I examined.
Britain does not make the executive subject to the rule of law, via supreme constitutional laws based on the principle of popular sovereignty. Instead, the executive, through its creature, Parliament, can change any law of the land by a simple majority of one vote. The rights, liberties and the institutions of British citizens are not protected by any special laws that government cannot easily change – unless you count the European Convention. We do not share political power between the centre, home countries, regions and local communities in the way most modern nations do. Local government in Britain has no constitutional defence at all against central power.
The House of Lords is the weakest and most unrepresentative second chamber of the countries I looked at. Our popular assembly, the House of Commons, is weaker than those of Denmark, Germany and the US, especially in its ability to scrutinise the executive and influence government policies. We do not promote open government through an enforceable “right to know”, but only through a voluntary code exercised by government itself. Our executive can begin wars or make treaties, and tell parliament afterwards.
James Madison, the great American democrat, said, as far back as 1788, that while elections represented the “primary control” on government, “experience has taught mankind the necessity of auxiliary precautions”. Historically, Britain has neglected both. A medieval voting system has been preserved and adapted to provide “strong government”. And instead of a system of formal checks and balances, the “gentlemanly capitalists” who saved democracy from the people in Victorian times ruled themselves by way of “constitutional conventions” while they ran Britain and its extensive empire. The tradition of voluntary restraint through such conventions has continued to govern political practice in the UK, while most mature democracies have adopted formal “auxiliary precautions”. The most recent examples are the shift to “right to know” laws and the strengthening of democratic regional structures.
Britain’s reliance on the conventions of an elite political culture – the ethic of the club – is now absolute. Politicians no longer play the game. This leaves the people, their rights and their institutions constitutionally defenceless against the partisan politics of single-party governments. In the 1970s, the British establishment feared the lash of unrestrained Labourism. In the 1980s, the public felt the lash of triumphant Thatcherism.
For any country, the bite of democracy lies ultimately in the prospect of losing office after an election. As Joyce Cary once observed, “The only good government is a bad government in a hell of a fright.” Britain’s electoral system is not designed to frighten the government party, or even the main opposition party. It protects both against third parties.
What can we learn from the five “peer” countries? The first need is to restore the bite of elections and to free Parliament from domination by a single-party executive. The most obvious way of accomplishing both these goals is to follow the examples of Denmark and Germany.
The public in both countries vote for their MPs in elections based on proportional representation. The parties in both countries are therefore obliged not only to share power with other parties, but to maintain their position in the popular house. This means that the lower houses in both countries have more power to scrutinise government and to influence its policies.
In Germany, the regions are represented in the upper house and their representatives have real, and justifiable power, over government proposals. Denmark abolished its upper house and gave MPs in the lower house more powers to check the government.
The most interesting check on the executive in Denmark is that a third of MPs can force a national referendum on any legislation on which they have been outvoted – although for the bill to be finally defeated, the majority voting a against it in the referendum must be equal to at least 30 per cent of the electorate.
An alternative way to break the executive stranglehold on the popular house is to make the executive and legislature legally separate, as the makers of the 1688 Glorious Revolution in England intended to do, and the makers of the US constitution did. Both the Senate and House of Representatives in the US have considerable powers over the executive, which run even to the power to share equally in the budget-making process.
The second major change would be to follow all other modern democracies and codify the rules of the game. This would mean that we would have to rid our politics of the two great lies that obscure executive dominance in Britain – of rule in the name either of the Crown or Parliament – and embracing the principle of rule in the name of the people. A written constitution would at last bring the executive under the rule of law in a meaningful way, since it would set out what government may lawfully do and what it may not do, and it would set constitutional rules of behaviour that Parliament could not alter by a simple partisan majority.
Real benefits would follow. Britain would for the first time give positive rights to its citizens that government could not override at will. Second, the position of local – and hopefully – regional, Scottish and Welsh government in Great Britain would be constitutionally defined. This kind of pluralist power-sharing between the centre, regions and localities is common throughout the western world. With it go various ways of deepening democracy – like town meetings, citizens’ initiatives (which allow local people to put forward their own proposals) and local referendums. In Denmark, local people and users often elect bodies that provide services like schools and old people’s homes. In some German towns, representative groups of people are brought together to make local planning decisions.
The end of the cold war has not only liberated most of the former Soviet bloc, it has liberated the west too. For good and ill, the west’s democratic regimes now have to justify themselves by their relevance to their people’s aspirations, and not just by comparison with the iniquities of the Soviet alternative.
All western regimes need to improve their democratic practice. In doing so, my bet is that they will become better equipped to deal with their current economic and social problems. Sober analysis of Britain’s progress since 1215 suggests that we have further to travel than most contemporary democracies.
The degree of criminal activity in Argentina’s “dirty war” was never really measured completely, but it’s clear the numbers of “disappeared” were absolutely shocking to the world. Although some justice was served when, after a scrupulously fair trial, five members of those juntas were sent to prison, the fact is that it scarred the country and the peoples’ faith in government forever.
Unfortunately, Alfonsin’s successor as President, Carlos Saul Menem, had pardoned most members of the military and expressed his intention to pardon all but one of the officers still facing punishment. (Gen. Carlos Guillermo Suarez Mason, whose command in Buenos Aires was marked by surpassing cruelty, is exempt from any pardon, having earned the contempt of his military colleagues by fleeing Argentina when Alfonsin took office. He was apprehended in California, which he had entered as an illegal alien, and is now in jail in Buenos Aires awaiting trial.) Yet with all the setbacks, Argentina achieved–in the words of my colleague Juan Mendez of Americas Watch, an Argentina lawyer who is himself a former prisoner of Suarez Mason–both “truth and partial justice.”
Last April 24, six weeks after he took office, President Patricio Aylwin of Chile established a Truth and Reconciliation Commission. As its name indicates, the commission does not consider the securing of justice to be within its power. Instead, the Chilean state’s inability to punish those responsible for the crimes of the Pinochet era, including Pinochet himself, is portrayed as the pursuit of a virtue: reconciliation. The architects of the commission derived the view that justice is beyond their means, partly from their close study of the Argentine experience and also that of Uruguay. In the latter case, a popular referendum in April 1989 upheld a law passed three years earlier under which the armed forces were granted amnesty for crimes committed during the years of military rule, 1973 to 1985. One factor in the voting–though it is impossible to know how heavily this weighed–was fear that a new coup might be launched if the law were overturned. The turmoil caused by the military uprisings against Alfonsin in neighboring Argentina no doubt contributed to that fear. As a consequence, in Uruguay there has been no official acknowledgment of the dictatorship’s crimes, which included the systematic torture of thousands, and no one has been brought to justice for those crimes. The Uruguayan experience also advances the unfortunate proposition that a popular referendum is an appropriate way to decide questions of justice.
In Chile, the difficulty of securing justice is exacerbated by the constitutional arrangement that Pinochet devised and that permitted a peaceful transition from his dictatorship to Aylwin’s elected civilian government. That arrangement denies Aylwin authority over the armed forces (Pinochet himself is guaranteed his post as commander of the army); it empowers the military to appoint certain members of the Senate; it maintains military court jurisdiction over many cases that belong in civilian court; and it forbids the overhaul of the Supreme Court. As a result, a 1978 amnesty law decreed by Pinochet and upheld by the Supreme Court remains in place. It bars prosecutions for the slaughter that commenced with the coup and continued throughout the years Pinochet was consolidating his power. (By contrast, after Alfonsin took office in Argentina the Supreme Court was reconstituted, and the law decreed by the generals to pardon their own crimes was invalidated by the courts and the Congress.) Finally, there is an extra-constitutional hurdle: Pinochet has publicly threatened that the state of law will end if any of his men are touched by the new government.
Chile’s Truth and Reconciliation Commission, which includes outstanding advocates of human rights among its members, such as Jaime Castillo and Jose Zalaquett, both forcibly exiled by Pinochet, must complete its work by January. Undoubtedly, it will fulfill the task assigned to it by President Aylwin: to present “the most complete possible picture of the most serious violations of human rights committed between 11 September 1973 and 11 March 1990 [the period of military dictatorship].” It can also be counted on to recommend reparations for the victims and legal and administrative steps to prevent a recurrence of gross violations of human rights. What its mandate does not permit, however, is any pronouncement of individual responsibility for those crimes. This is the line that cannot be crossed by Chile’s democratic government.
By now, a consensus has emerged in the human rights movement worldwide that while both truth and justice are needed to deal with past abuses of the magnitude of those that occurred in Chile, truth is the more important. That is, the government itself should acknowledge and fully disclose the crimes perpetrated by those who exercised power. Yet though justice ranks after truth, in Chile there should be no pretending that “reconciliation” at the point of Pinochet’s guns is a satisfactory substitute. The Truth and Reconciliation Commission will serve the cause of truth and justice if its report states clearly that justice cannot be done in Chile only because the civilian government lacks the power to see that it is done; and the commission should call on the government to make every effort to curb the power of the armed forces so that, at least in the future, justice can be done.