ALIQUEM CRUCIS

The Google Book Settlement

2011-04-17T01:48:00.000-07:00

DANIEL GERVAIS ∗
CITE AS: 2011 STAN. TECH. L. REV. 1
http://stlr.stanford.edu/pdf/gervais-google-books-and-trips.pdf
I. INTRODUCTION
¶1 Not long after Google announced in December 2004 that it would include in its search database
the full text of books from a number of leading research libraries, two lawsuits—structured as class
actions—were filed by a group representing mostly trade authors and a major publisher.1 One of the
key issues was whether Google’s project was defensible as fair use.2
¶2 After several years of discussion, a proposed settlement was reached.3 It would have allowed
Google to continue scanning copyrighted books into its search index and displaying the text to its
users in exchange for the payment of license fees to copyright holders.4 The proposed display rules
were contingent on whether a book was still in print.5 Additionally, rightsholders could opt out of the
settlement either entirely, by requesting the removal of protected books, or partially, by modifying
the default display rules.6
¶3 The proposed settlement came under intense scrutiny and criticism.7 A number of foreign
rightsholders, and even foreign governments, opposed the deal.8
* Professor of Law, Co-Director, Technology and Entertainment Law Program, Vanderbilt University Law School.
1 Complaint, McGraw-Hill Cos. v. Google Inc., No. 05-CV-8881 (S.D.N.Y. Oct. 19, 2005); Complaint, Author’s Guild, Inc.
v. Google Inc., No. 05-CV-8136 (S.D.N.Y. Sept. 20, 2005).
2 See KATE M. MANUEL, CONG. RESEARCH SERV., R40194, THE GOOGLE LIBRARY PROJECT: IS DIGITIZATION FOR
PURPOSES OF ONLINE INDEXING FAIR USE UNDER COPYRIGHT LAW? 5-9 (2009), available at
http://opencrs.com/document/R40194/.
3 Settlement Agreement, Author's Guild, Inc. v. Google Inc., No.-CV-8136 (S.D.N.Y. Oct. 28, 2008) (proposed), available at
http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf [hereinafter Settlement Agreement].
4 Settlement Agreement, supra note 3, § 2.1(a). The settlement applied to books (not periodicals) published before January 5,
2009.
5 Id. § 3.2(d). For public domain books, see id. § 1.116. According to Google, approximately seventy percent of copyrighted
books are out of print. Jonathan Band, The Long and Winding Road to the Google Books Settlement, 9 J. MARSHALL REV. INTELL. PROP.
L. 227, 262 (2009).
6 Settlement Agreement, supra note 3, §§ 1.98, 3.5. Under the original settlement agreement, the deadline was September 4,
2009. See Order at 2, Authors Guild, Inc. v. Google, Inc., No. 05-CV-8136 (S.D.N.Y. Apr. 28, 2009) (extending the original opt-out
deadline of May 5, 2009).
7 For example, the U.S. Department of Justice submitted a brief opposing some aspects of the proposed settlement. See
Statement of Interest of the United States of America Regarding Proposed Class Settlement at 6-10, Authors Guild, Inc. v. Google
Inc., No. 05-CV-8136, 2009 WL 3045979 (S.D.N.Y. Sept. 18, 2009). Additionally, the House Judiciary Committee questioned
whether a solution was better achieved through legislation than through class action litigation. See Competition and Commerce in Digital
Books: Hearing Before the H. Comm. on the Judiciary, 111th Cong. 2-3 (2009). Lastly, Professor Pamela Samuelson wrote a strong set of
Stanford Technology Law Review
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¶4 As a result, the settlement was amended significantly.9 One of the main differences between the
original and amended settlements was the treatment of foreign rightsholders.10 While the original
settlement applied to rightsholders in all countries, the amended agreement would only apply to
foreign books published in Australia, Canada, or the United Kingdom, or registered with the United
States Copyright Office as of January 5, 2009.11
¶5 Conformity with international treaties and agreements to which the United States is party, in
particular the Berne Convention12 and the World Trade Organization (WTO) Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPS),13 has not been a major part of the
discussions surrounding the proposed settlement but it is important because incompatibility with
TRIPS might trigger a dispute-settlement case against the United States at the WTO and lead—
should the United States lose the case partially or entirely—to trade-based retaliation.14 To mention
two examples, in 2000 a WTO panel found that § 110(5)(B) of the Copyright Act was incompatible
with Article 13 of the TRIPS Agreement (the so-called three-step test).15 As of this writing, the panel
report has not been implemented, perhaps in part because a binding arbitration report determined
that the level of injury caused by the exemption was extremely low.16 In a more recent case, failure by
the United States to implement a panel report that found part of the cotton subsidies paid to U.S.
farmers incompatible with WTO rules may lead to the removal of intellectual property protection for
U.S. goods in Brazil.17
¶6 The unprecedented nature of the Google case, however, is that the incompatibility would not
result from typical trade measures adopted by legislation or regulation but rather by a court decision.
Generally, court decisions are immune (as a practical matter) from WTO review owing to their inter
partes nature—that is, they are not measures or requirements of general application. The application
of class action procedures, however, that would include a large number of foreign intellectual
property holders as part of the covered classes, may open the Settlement to WTO scrutiny.18
critiques. See Pamela Samuelson, Pamela Samuelson’s Letters to the Court: Concerns on the Proposed Google Book Settlement, 12 TUL. J. TECH.
& INTELL. PROP. 185 (2009).
8 See Memorandum of Law in Opposition to the Settlement Proposal on Behalf of the Federal Republic of Germany, No. 05-
CV-8136 (S.D.N.Y. Aug. 31, 2009). In fact, many foreign publishers filed objections, including over ninety from Germany, fifteen
from Sweden, and twenty-five from the Netherlands. Band, supra note 5, at 314 n.827.
9 Settlement Agreement, Authors Guild, Inc. v. Google Inc., No. 05-CV-8136 (S.D.N.Y. Nov. 13, 2009) (proposed), available
at http://www.googlebooksettlement.com/r/view_settlement_agreement [hereinafter Amended Settlement Agreement].
10 Compare id. § 1.19, with Settlement Agreement, §1.142. According to Jonathan Band, “as much as 50% of the titles in the
research libraries partnering with Google are not in English; and most of these foreign language titles probably were published
outside the United States and were not registered with the Copyright Office.” Band, supra note 5, at 321.
11 Amended Settlement Agreement, supra note 9, § 1.19.
12 Paris Act Relating to the Berne Convention for the Protection of Literary and Artistic Works, July 24, 1971, 1161 U.N.T.S.
18388 [hereinafter Berne Convention]. For application to the United States, see Berne Convention Implementation Act of 1988,
Pub. L. No. 100-568, 102 Stat. 2853.
13 Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, 1869 U.N.T.S. 299, 33 I.L.M. 1197
(1994) [hereinafter TRIPS Agreement]. The TRIPS Agreement was implemented by the Uruguay Round Agreements Act, Pub. L.
No. 103-465, 108 Stat. 4809 (1994).
14 See generally Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World
Trade Organization, Annex 2, Apr. 15, 1994, 33 I.L.M. 1226.
15 Report of the Panel, United States—Section 110(5) of the US Copyright Act, ¶ 7.1, WT/DS160/R (June 15, 2000). amended by
the Fairness in Music Licensing Act of 1998, Pub. L. No. 105-298, 112 Stat. 2830, which was enacted on October 27, 1998. The
European Communities (“EC”) (now the European Union) successfully alleged that the section in question, which permitted,
under certain conditions, the playing of radio and television music in public places (e.g., bars, shops, restaurants, etc.) without the
payment of a royalty fee to performing rights societies, was incompatible with the obligation to provide a public performance right
contained in the Berne Convention and incorporated into TRIPS and not an exception allowed under the three-step test.
16 On November 9, 2001, the arbitrator determined that the level of EC benefits which were being nullified or impaired as a
result of the operation of § 110(5)(B) amounted to €1,219,900 per year (approximately $1.1 million at the October 11, 2001,
exchange rate and $1.6 million as of January 2011). Award of the Arbitrators, United States—Section 110(5) of the US Copyright Act, ¶¶
4.73, 5.1, WT/DS160/ARB25/1 (Nov. 9, 2001).
17 See Decision by the Arbitrator, United States—Subsidies on Upland Cotton, WT/DS267/ARB/1 (Aug. 31, 2009). See also the
subsequent Communication from Brazil, United States—Subsidies on Upland Cotton, WT/DS267/43 (Mar. 12, 2010).
18 See infra notes 59-61.
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¶7 International treaties may also be relevant directly in the domestic context. First and foremost,
they may be invoked when the interpretation of a U.S. statute is unclear, in which case the
interpretation most likely to comport with U. S. international obligations should be favored.19
Second, a treaty such as the Berne Convention may be directly applicable (“self-executing”).20
¶8 In applying TRIPS to the Google Book Settlement, the first question that comes to mind is
whether the Original and/or the Amended Settlement constitute a prohibited formality under the
Berne Convention, and thus also the TRIPS Agreement.21 The Amended Agreement—because it
treats rightsholders in three foreign countries differently—raises two related questions, namely (a)
whether the national treatment principle is violated, and (b) whether the proposed settlement is
compatible with the most-favored nation clause.22 Let us sequentially consider both questions.
II. THE NO-FORMALITY RULE
¶9 Article 5(2) came into being in the very early days of the Berne Convention.23 In the first draft of
the Convention published in 1884 the relevant part of Article 2 read as follows:
Authors who are nationals of one of the Contracting Countries shall enjoy in all the other
countries of the Union, in respect of their works, whether in manuscript or unpublished
form or published in one of those countries, such advantages as the laws concerned do now
or will hereafter grant to nationals.
. . .
The enjoyment of the above rights shall be subject to compliance with the conditions of
form and substance prescribed by the legislation of the country of origin of the work or, in
the case of a manuscript or unpublished work, by the legislation of the country to which the
author belongs.24
¶10 The intent was to grant to foreign authors the same rights granted to nationals. This was
confirmed by the Drafting Committee, which also clarified the meaning of the expression
“conditions of forms and substance,” originally a German proposal, which was changed to
“formalities and conditions.”25
19 See Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804); see also Arwel Davies, Connecting or Compartmentalizing the
WTO and United States Legal Systems? The Role of the Charming Betsy Canon, 10 J. INT'L ECON. L. 117 (2007) (reviewing the cases
applying the Charming Betsy doctrine to trade cases).
20 U.S. CONST. art. VI (“[A]ll treaties made, or which shall be made, under the authority of the United States, shall be the
supreme law of the land.”). Most U.S. courts, however, have been reluctant to consider intellectual property treaties as selfexecuting,
usually relying on a finding that this was not the intent of Congress. See e.g., Int'l Cafe v. Hard Rock Cafe Int'l, Inc., 252
F.3d 1274, 1277 n.5 (11th Cir. 2001) (noting that Paris Convention is not self-executing because it provides for effectiveness
through domestic implementation legislation); Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298-99 (3d Cir. 1979)
(holding that Art. 17 of the Convention is “at odds with contention” that Paris Union is self-executing); Ortman v. Stanray Corp.,
371 F.2d 154, 157 (7th Cir. 1967) (holding the Paris Union non-self-executing); see also ITC Ltd. v. Punchgini, Inc., 482 F.3d 135,
161 (2d Cir. 2007); Golan v. Holder, 609 F.3d 1076 (10th Cir 2010) (certiorari application was pending as of this writing). But see
Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 640 (2d Cir. 1956) ("Plaintiff would appear to be correct in arguing that no
special legislation in the United States was necessary to make the [Paris Union] effective here.”).
21 This rule, discussed in the next section, is contained in Article 5(2) of the Berne Convention, which was incorporated by
reference into the TRIPS Agreement in Article 9.
22 National treatment obligations, discussed under Part III, are contained both in the Berne Convention (Article 5) and the
TRIPS Agreement (Articles 3 and 9). The most-favored nation principle, discussed under Part IV is contained in Article 4 of the
TRIPS Agreement.
23 See WORLD INTELLECTUAL PROPERTY ORGANIZATION, BERNE CONVENTION CENTENARY: 1886-1986 at 94 (1986)
[hereinafter CENTENARY].
24 Id. at 94.
25 Id. at 94-95. As was noted in the Report of the Conference: “the word ‘formalities’ being taken as a synonym of the term
‘conditions of form’, included, for instance, registration, deposit, etc.; whereas the expression ‘conditions’, being in our view synonymous
with ‘conditions of substance’, includes, for instance, the completion of a translation within the prescribed period. Thus the words
‘formalities and conditions’ cover all that has to be observed for the author’s rights in relation to his work to come into being,
whereas the effects and consequences of protection, notably with respect to the extent of protection, have to remain subject to the
principle of treatment on the same footing as nationals.” Id.
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¶11 The Report of the 1896 Paris Conference, where the prohibition was also discussed, explicates
the purpose along the same lines:
Under the text of the Convention, the enjoyment of copyright shall be subject to the
accomplishment of the conditions and formalities prescribed by law in the country of origin of the work. The
meaning of this provision does not seem to be seriously debatable. As a result of it, the
author needs only to have complied with the legislation of the country of origin, to have
completed in that country the conditions and formalities which may be required there. He
does not have to complete formalities in the other countries where he wished to claim
protection. This interpretation, which is in keeping with the text, was certainly in the minds
of the authors of the 1886 Convention . . . 26
¶12 The 1908 Berlin revision of the Berne Convention adopted a different version of Article 2, one
that has survived until now.27 The relevant part reads as follows:
The enjoyment and the exercise of these rights shall not be subject to any formality; such
enjoyment and such exercise are independent of the existence of protection in the country of
origin of the work. Consequently, apart from the provisions of this Convention, the extent
of protection, as well as the means of redress afforded to the author to protect his rights,
shall be governed exclusively by the laws of the country where protection is claimed.28
¶13 The Report of the 1908 Revision Conference notes that “[o]utside the country of publication,
protection may be requested in the other countries of the Union not only without having to complete
any formalities in them, but even without being obliged to justify that the formalities in the country
of origin have been accomplished.”29 The formalities prohibited under Article 5(2) are thus:
registration with a governmental authority, and deposit of a copy of the work, when linked to the
existence of copyright or its exercise, especially in enforcement proceedings. Indeed, formal
requirements in existence at the time of the 1908 Conference essentially involved registration, deposit
(in national libraries) and, in rare cases, translation in a national language within a predetermined
period of time.30 Article 5(2) does not prevent authors from complying with ordinary (non-copyrightspecific)
formalities (such as a court’s rules of procedure). It would be patently incongruous to read
Article 5(2) as preventing making anything mandatory. Normal acts that other copyright holders
routinely perform to exploit their works are not “formalities” prohibited under Article 5(2).31 In fact,
in 1908 the Convention considered an exception to the right of reproduction for newspaper articles.
The exception was contained in the proposed Article 9(2), and the relevant part read as follows:
“[w]ith the exception of serial novels and short stories, any newspaper article may be reproduced by
another newspaper unless the reproduction thereof is expressly forbidden.”32 The records made clear that the
requirement for an author to have to assert her rights (to expressly forbid secondary uses) was not a
prohibited formality.33
¶14 The validity of the aforementioned suggested conclusion is confirmed in recent commentary on
the Berne Convention published by the World Intellectual Property Organization (WIPO):
Formalities are any conditions or measures—independent from those that relate to the
creation of the work (such as the substantive condition that a production must be original in
order to qualify as a protected work) or the fixation thereof (where it is a condition under
26 Id. at 137.
27 Berne Convention, art. 5(2).
28 CENTENARY, at 149.
29 Id. at 148.
30 See id.
31 For instance, the records of the 1884 Conference note that the term “formalities” might be taken as a synonym of the term
“conditions of form,” including, for instance, registration, deposit, etc.; whereas the expression “conditions,” being in our view
synonymous with “conditions of substance,” includes, for example, the completion of a translation within the prescribed period.
See SAM RICKETSON & JANE C. GINSBURG, 1 INTERNATIONAL COPYRIGHT AND NEIGHBOURING RIGHTS: THE BERNE
CONVENTION AND BEYOND 323 (2d ed. 2006).
32 Id. at 327-28 (emphasis added).
33 See id. at 328.
Daniel Gervais: The Google Book Settlement and the TRIPS Agreement
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national law)—without the fulfillment of which the work is not protected or loses
protection. Registration, deposit of the original or a copy, and the indication of a notice are
the most typical examples.34
¶15 After a detailed analysis, Professors Ricketson and Ginsburg similarly conclude that the
prohibition contained in Article 5(2) applies, with respect to the existence of copyright, to “‘everything
which must be complied with in order to ensure that the rights of the author with regard to his work
may come into existence,’” including a registration requirement.35 They note that the addition of
“exercise” to the prohibition was meant to address the other half of the problem: “An author may be
vested with copyright, but unable to enforce her rights unless she complies with a variety of
prerequisites to suit.”36 They also note that Article 5(2) does not prohibit the establishment of a
copyright registration system, nor indeed to giving some legal effect to a certificate of registration,
such as prima facie evidence status.37 The rule, as mentioned above, is that neither the existence nor
the exercise of copyright can be subject to copyright-specific formalities.38 Because a plaintiff is
ordinarily expected to prove her case, it does not violate the Convention’s prohibition to provide
prima facie evidentiary status to a copyright registration.39
¶16 Professor Ricketson also made public a note specifically about the Original Settlement noting its
conformity with Article 5(2).40 His conclusion that imposing an opt-out does not constitute a per se
violation of Article 5(2) seems unimpeachable. This does not mean, however, that the Amended
Settlements would necessarily survive a challenge under Article 5(2) of the Berne Convention. As
certain objections have mentioned, the specific opt-out mechanism is particularly burdensome and
subject to strict time delays.41 This suggests that, in the spirit of Article 5(2), while some formalities
of an operational nature are allowed and, in some cases, inevitable (e.g. filing pleadings), they must be
reasonable and cannot amount to a barrier to the legitimate exercise of rights recognized under the
Convention.
III. THE THREE-STEP TEST
¶17 Leading commentaries on the Berne Convention and the TRIPS Agreement recognize that,
while collective licensing is acceptable if accompanied by an opt-out clause (subject to the caveat
noted in the previous section), mandatory collective management is usually not. 42 Hence, any
mandatory inclusion in the Google database of future books—notably after the opt-out period—
would amount to a compulsory license, which is subject to a different level of scrutiny. Those
licenses are not subject to the no-formality rule but rather to the so-called “three-step test.”
34 MIHÁLY FICSOR, GUIDE TO THE COPYRIGHT AND RELATED RIGHTS TREATIES ADMINISTERED BY WIPO AND
GLOSSARY OF COPYRIGHT AND RELATED RIGHTS TERMS 41 (2004); see also WORLD INTELLECTUAL PROP. ORG., WIPO
INTELLECTUAL PROPERTY HANDBOOK 262 (2d ed. 2004) (“[P]rotection is granted automatically and is not subject to the
formality of registration, deposit or the like.”).
35 RICKETSON & GINSBURG, supra note 31, at 325.
36 Id.
37 Id. at 328-29.
38 See id. at 326-28.
39 That is, it is not a condition for the right to exist. See FICSOR, supra note 34, at § BC-5.7 (noting that “if registration only has
the effect of a rebuttable presumption that the facts registered are valid, it is not such a formality (unless it is applied in a way that,
in spite of the original legal regulation, it becomes a de facto formality, because, for example, courts only deal with any
infringement case if a certificate of registration is presented.)”).
40 See Memorandum from Sam Ricketson, Memorandum of Advice: The Compatability of the Proposed Google Book
Settlement with the Provisions of the Berne Convention (Sept. 9, 2009), available at
http://thepublicindex.org/docs/commentary/Ricketson.pdf.
41 For example, the Objections of Carl Hanser Verlag and Dr. Lynley Hood and the Brief of Amici Curiae Börsenverein Des
Deutschen Buchhandels, Schweizer Buchhändler – Und Verleger–Verband Sbvv, Hauptverband Des Österreichischen
Buchhandels, Associazione Italiana Editori, and the New Zealand Society Of Authors (Pen Nz Inc.), notes that “[t]his painstaking
task, which the ASA requires foreign rightsholders to undertake in a remarkably short, inconvenient time-period—plainly imposes
burdens that conflict with Berne.” Case No. 05 CV 8136-DC (ECF), Jan. 28, 2010.
42 See Mihály Ficsor, Collective Management of Copyright and Related Rights in the Digital, Networked Environment: Voluntary,
Presumption-Based, Extended, Mandatory, Possible, Inevitable?, in COLLECTIVE MANAGEMENT OF COPYRIGHT AND RELATED RIGHTS
47-50 (D. Gervais ed., 2006).
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¶18 At the 1967 Stockholm Berne Convention Revision Conference, a rule now known as the threestep
test was added to the Convention to limit exceptions to the right of reproduction—a right that
was added to the Convention at the same Revision Conference.43 According to the Study Group set
up by the Bureaux Internationaux Réunis pour la Protection de la Propriété Intellectuelle (BIRPI, the
predecessor of the World Intellectual Property Organization) and the Swedish government to
prepare the Conference, adding the right of reproduction to the Convention meant that a satisfactory
formula had to be found for inevitable exceptions to that right.44 The Study Group also
recommended that exceptions should be made for clearly specified purposes, adding that a limitation
on the exclusive right of the author should not enter into economic competition with protected
works.45
¶19 The Conference provided guidance on the interpretation of the test that was eventually adopted.
It indicated that the first step (the Conference did not consider the “special case requirement” to be a
separate step) was to determine whether there was a conflict with normal commercial exploitation. If
no conflict is found, then either a compulsory license or a full exception could be introduced in
national law. The compulsory license (with remuneration) would then counterbalance the level of
prejudice in the last step, i.e., it would render such prejudice reasonable where this was necessary.46
¶20 Two WTO dispute-settlement panels have now interpreted the test, which was incorporated in
four different ways into the TRIPS Agreement.47 According to those panel reports, an exception
must pass all three steps of the test: (a) it must be narrow enough to constitute a “special case”(first
step); (b) use of the exception may not enter into competition with the work to which the exception
applies (second step); and (c) the prejudice to the legitimate interests of rightsholders cannot reach an
unreasonable level, which would happen if an exception or limitation causes or has the potential to
cause an unreasonable loss of income to the copyright owner (third step).48
¶21 Arguably, removing exclusive rights for online access on almost all English-language books
would not be particularly narrow and thus could raise doubts under the first step. The availability of
the books online—even in snippet form—might interfere with normal commercial exploitation. With
time (should the Settlement enter into force) empirical data should emerge to buttress this conclusion
or conversely to invalidate it. Finally, while the public interest justification of the Settlement is a
matter on which reasonable people may disagree, it may be that, as for competition, it will be
possible to demonstrate losses of income. That said, the “compensation” system put in place under
the Settlement—administered by the Book Rights Registry—could be said to negate the prejudice
and thus allow the Settlement to pass the third step.49
IV. NATIONAL TREATMENT
¶22 Under the national treatment principle, a country must accord nationals of other countries
treatment no less favorable than it accords its own nationals.50 Could it be said that the Amended
Settlement violates this principle?
43 WORLD INTELLECTUAL PROPERTY ORGANIZATION, 1 RECORDS OF THE INTELLECTUAL PROPERTY CONFERENCE OF
STOCKHOLM: JUNE 11 TO JULY 14, 1967 at 111 [hereinafter 1967 Records].
44 See MIHÁLY FICSOR, THE LAW OF COPYRIGHT AND THE INTERNET § 5.51 (2002).
45 1967 RECORDS, supra note 44, at 112.
46 Id., Report of Main Committee I, § 85.
47 Apart from the already mentioned panel report on Section 110(5) of the U.S. Copyright Act, see supra note 15, the threestep
test was interpreted in Canada. Panel Report, Canada—Patent Protection of Pharmaceutical Products, WT/DS114/R (March
17, 2000). The test is contained in Article 9(2) of the Berne Convention, which was incorporated into TRIPS by Article 9 of the
Agreement. It is also directly made part of the Agreement in Articles 13, 26(2), and 30. The language used in each instance is
different but the three-step approach is applied consistently.
48 See Daniel J. Gervais, Towards A New Core International Copyright Norm: The Reverse Three-Step Test, 9 Marq. Intell. Prop. L. Rev.
1, 15-19 (2005).
49 See Amended Settlement Agreement, supra note 9, art. VI.
50 TRIPS Agreement, supra note 13, art. 3. In the case of WTO, the obligation applies to WTO “members,”
Daniel Gervais: The Google Book Settlement and the TRIPS Agreement
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¶23 The Original Settlement applied to publications in any language. One could have argued that
rightsholders unfamiliar with the English language and forced to file documents (such as an opt-out
form) in English were at a disadvantage compared to U.S. rightsholders. This is less likely to happen
with the Amended Settlement, which is limited to works published in English and/or registered by
the rightsholder at the U.S. Copyright Office.
¶24 To make the point that national treatment is violated, one would have to argue that the
Amended Settlement is preferential treatment accorded to rightsholders in the United States—and
the three foreign countries to which it applies. The “advantage,” if it exists, is the fact that some
rightsholders are to be included by default (that is, unless they opt out). A rightsholder from a third
country not so included could presumably ask Google to be included in the database.
¶25 In sum, if inclusion by default in the Google database is an advantage for rightsholders, which is
eminently debatable, then those hailing from countries other than the three that were included can
indeed make the case that they are treated differently from U.S. rightsholders. But the prejudice
seems limited to having to ask to be added (opt in rather than opt out) and not necessarily a
convincing basis for making the case that TRIPS obligations were violated.
V. MOST-FAVORED NATION
¶26 This part of the analysis, dealing with the so-called “most-favored nation” (MFN) principle, is
somewhat more complicated.51 The MFN principle derives from a trade doctrine used in multilateral
tariff negotiations. 52 Because not all countries can discuss all tariffs together, countries that are major
exporters of certain goods typically discuss tariff reductions with countries that maintain high tariffs
on such goods, and then the lower tariffs are applied to all exporters of the same goods.53 In trade
law, the scope of application of MFN is quite broad. As was noted in the Canada-Autos case by the
WTO Appellate Body, MFN obligations extend to both de jure and de facto discrimination.54
¶27 A major difference between the TRIPS version of the MFN principle and the earlier GATT
version is that the former does not refer to “like products,” but rather to “nationals,” that is,
rightsholders.55
¶28 The Amended Settlement raises prima facie MFN questions because some foreign
nationals/rightsholders (Australia, Canada, United Kingdom) are treated differently than others,
including rightsholders from countries where English is a predominant language (e.g., New Zealand).
Three questions must be answered, however, before concluding that there is a possible MFN
violation. First, is the Amended Settlement a “favor, privilege or immunity . . . with regard to the
protection of intellectual property?” Second, if so, is a favor, privilege, or immunity “granted by a
Member”? Third, does one of the TRIPS exceptions to MFN apply?
“Favor, privilege, or immunity”
¶29 Whether one views being included by default in the Amended Settlement (that is, whether one is
out by default or one must opt out by a certain date—including rightsholders from Australia, Canada,
and the United Kingdom) as an advantage is an interesting question, yet not one needed to determine
51 This analysis of the TRIPS most-favored nation principle has nothing to do with the so-called “most-favored nation
clause” included in Section 3.8(a) of the original settlement, which would require the Registry established under the Agreement to
receive and distribute royalties to authors to extend to Google, in certain situations, the same terms it negotiates with other entities.
See Settlement Agreement, supra note 3, § 3.8(a).
52 See Appellate Body Report, Canada—Certain Measures Affecting the Automotive Industry, ¶ 84, WT/DS139/AB/R (May 31,
2000) [hereinafter Canada-Autos].
53 See id.
54 Id. § 78.
55 Compare TRIPS Agreement, supra note 13, art. 4 (“any advantage, favour, privilege or immunity granted by a Member to the
nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members”), with GATT, art.
I (“any advantage, favor, privilege or immunity granted by any contracting party to any product originating in or destined for any other
country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other
contracting parties.”) (emphasis added).
Daniel Gervais: The Google Book Settlement and the TRIPS Agreement
8
Copyright © 2011 Stanford Technology Law Review. All Rights Reserved.
whether there an MFN violation exists. The material question is whether this difference in treatment
amounts to an advantage for one group of foreign nationals. Clearly, the two groups of foreign
rightsholders are treated differently and one of those groups is thus prima facie at a disadvantage.56
¶30 There are no WTO cases directly on point, that is dealing with the interpretation of those terms
in a TRIPS context.57 However, two WTO cases support a broad and liberal interpretation of the
notion of “advantage.”58 In one case, a Canadian import duty exemption for motor vehicles
originating in designated countries (those with Canadian affiliates essentially) was found to be
inconsistent with MFN obligations.59 The Appellate Body emphasized the notions of “any
advantage” and “all other Members” used in the GATT MFN provisions.60 Then, in the Indonesia-
Autos case, a panel report pointed out the historically “broad definition” given to the term
“advantage.”61 This is not conclusive but would support the claim that some rightsholders receive an
advantage or privilege over others and this difference is linked to their nationality.
“Granted by a Member”
¶31 Because MFN obligations are typically applied to trade tariffs, the measure usually considered in
MFN cases are laws or regulations imposing tariffs or extending tariff reductions to certain
importers. In the proposed Google settlements, however, the differential treatment of Australian,
Canadian, and British rightsholders is imposed by a court of law.62
¶32 Court decisions typically affect only specific rightsholders—those party to the dispute. Put
differently, a court decision does not normally impact a group of rightsholders based on its
nationality. As such, court decisions rarely if ever come under MFN scrutiny. Yet, by using the class
action system and targeting certain foreign rightsholders--but not all--based on their nationality, an MFN
violation may have occurred in the Amended Settlement. The fact that the source of the violation is a
court does not necessarily immunize it. It is well known that the two other branches of government
can act in ways that are MFN-incompatible.63 Indeed, there is no obvious systemic reason or direct
precedent one can point to that would exclude the Judicial Branch. As Professor Ehlermann noted:
“Despite the fact that judiciaries are usually independent in countries that live under the rule of law,
States are responsible for the acts of their courts.”64
56 Determining which group is at a disadvantage is obviously essential to determining who the complainant would be if a case
were filed. Google excluded, inter alia, Germany and New Zealand, from the Amended Settlement. Perhaps this was due to the
opposition manifested by those two countries to the Original Settlement and would be a sign that for Australia, Canada, and
United Kingdom rightsholders, the Amended Settlement is not necessarily an advantage or privilege. For Germany, see supra note
8. The Objections and Amicus Brief filed by a group of foreign authors and publishers argues that nationals of Australia, Canada
and the United Kingdom have an advantage because they “do not have to determine whether their works have been registered
with the U.S. Copyright Office in order to ascertain whether they are members of the Settlement Class. Although it is hardly an
‘advantage’ to be included in this Settlement Class by virtue of one’s citizenship, it is clearly better to know that you are included
than not to know at all. . . . The [Amended Settlement] further favors the [the three named countries] by guaranteeing them
representation on the Book Rights Registry’s Board of Directors and expanding the definition of Commercially Available to
include channels of trade related to the U.S. and their countries only.” Objections and Brief of Amici Curiae , supra note 41, at 14.
57 See Daniel GERVAIS, THE TRIPS AGREEMENT: DRAFTING HISTORY AND ANALYSIS 188-95 (3rd ed. 2008).
58 See PAUL EDWARD GELLER, 1 INTERNATIONAL COPYRIGHT LAW AND PRACTICE INT § 5[4][a][ii].
59 Canada-Autos, supra note 52, at 3.
60 Id. § 79 (emphasis added).
61 See Panel Report, Indonesia—Certain Measures Affecting the Automobile Industry, ¶ 14.138, WT/DS54/R (July 2, 1998).
62 The atypical nature of the case is precisely what prompted members of Congress and the Register of Copyrights to declare
that the court was asked to perform a task best suited for a legislative process. See Competition and Commerce in Digital Books: Hearing
Before the H. Comm. on the Judiciary, supra note 7.
63 That is, the discriminatory measure may be in a statute, but it could also be in a regulation or other rule imposed by the
Executive Branch. See Edward A. Laing, Equal Access/Non-Discrimination and Legitimate Discrimination in International Economic Law, 14
WIS. INT'L L.J. 246, 272 (1996) (noting that “the MFN standard has been firmly applied by the executive branch and the legislative
branch”); see also Barbara A. Frey, The Legal and Ethical Responsibilities of Transnational Corporations in the Protection of International Human
Rights, 6 MINN. J. GLOBAL TRADE 153, 171 (1997) (noting that the President and the Executive Branch have the power “to
enforce U.S. policy through economic sanctions such as the revocation of most favored nation status, the suspension of economic
and security assistance, and the vetoing of assistance from international financial institutions”).
64 Claus-Dieter Ehlermann and Lothar Ehring, WTO Dispute Settlement and Competition Law: Views from the Appellate Body’s
Experience, 26 FORDHAM INT’L L.J. 1505, 1527-28 (2002-2003).
Daniel Gervais: The Google Book Settlement and the TRIPS Agreement
9
Copyright © 2011 Stanford Technology Law Review. All Rights Reserved.
¶33 While this fact pattern is somewhat unprecedented, the use of court decisions by WTO disputesettlement
panels as illustrations of the meaning of a particular provision of domestic law is quite
common.65 In some legal systems, a ruling by the highest court may also be considered as lawmaking,
a practice not limited to common law systems.66 In this case, the measure seems even more directly
subject to scrutiny because it directly affects foreign copyright holders. As such, the MFN analysis of
the proposed settlement should not rely on an analogy with measures that do not directly apply to
rightsholders, such as European Union “directives”—essentially legislative instructions to the
governments of the twenty-seven member States of the European Union to implement rather than
rules that apply directly in the domestic legal order of each such states.67
Exceptions
¶34 The MFN exemptions in Article 4 of TRIPS are as follows:
Any advantage, favour, privilege or immunity accorded by a Member:
(a) deriving from international agreements on judicial assistance or law enforcement of a general
nature and not particularly confined to the protection of intellectual property;
(b) granted in accordance with the provisions of the Berne Convention (1971) or the Rome
Convention authorizing that the treatment accorded be a function not of national treatment
but of the treatment accorded in another country;
(c) in respect of the rights of performers, producers of phonograms and broadcasting
organizations not provided under this Agreement;
(d) deriving from international agreements related to the protection of intellectual property
which entered into force prior to the entry into force of the WTO Agreement, provided that
such agreements are notified to the Council for TRIPS and do not constitute an arbitrary or
unjustifiable discrimination against nationals of other Members.68
¶35 At first glance, none of these exemptions apply.
VI. CONCLUSION
¶36 Our tour d’horizon has perhaps raised more questions than it has provided answers. For example,
while an opt-out does not amount to a per se violation of the Berne Convention, the conformity of
the specific form of the opt-out clause in the Amended Settlement and its time-limited nature remain
dubious. For any book that might be included in the Settlement without the rightsholder’s consent
and not subject to an effective opt-out, a different set of rules likely applies, namely the compatibility
of new forms of compulsory licensing with the three-step test. The focus on a proper and probably
ongoing opt-out option is thus warranted.
65 For a recent example, see Dispute Settlement Report, China—Measures Affecting the Protection and Enforcement of Intellectual
Property Rights, ¶ 7.51, WT/DS362/1 (Apr. 10, 2007) (trying to understand a provision of Chinese law, the Panel noted that the
interpretation it favored was “consistent with, and clarified by, the view expressed by the Supreme People's Court of China in the
course of domestic litigation in 1998”).
66 Id. ¶ 2.2 (examining the compatibility with the TRIPS Agreement of an “[i]nterpretation by the Supreme People's Court
and the Supreme People's Procuratorate on Several Issues of Concrete Application of Law in Handling Criminal Cases of
Infringing Intellectual Property”).
67 See, e.g., Directive 2006/116/EC, of the European Parliament and of the Council of 12 December 2006, 2006 on the Term
of Protection of Copyright and Certain Related Rights, 2006 O.J. (L 372) 12; Directive 2006/115/EC, of the European Parliament
and of the Council of 12 December 2006 on Rental Right and Lending Right and on Certain Rights Related to Copyright in the
Field of Intellectual Property, 2006 O.J. (L 376) 28; Directive 2004/48/EC, of the European Parliament and of the Council of 29
April 2004 on the Enforcement of Intellectual Property Rights, 2004 O.J. (L 157) 45; Directive 2002/58/EC, of the European
Parliament and of the Council of 12 July 2002 Concerning the Processing of Personal Data and the Protection of Privacy in the
Electronic Communications Sector, O.J. (L 201) 37; Directive 2001/84/EC, of the European Parliament and of the Council of 27
September 2001 on the Resale Right for the Benefit of the Author of an Original Work of Art, 2001 O.J. (L 272) 32; and Directive
2001/29/EC, of the European Parliament and of the Council of 22 May 2001 on the Harmonization of Certain Aspects of
Copyright and Related Rights in the Information Society, 2001 O.J. (L 167) 10. On the legal status of Directives, see KAREN
DAVIES, UNDERSTANDING EUROPEAN UNION LAW 50 (3d ed. 2007).
68 TRIPS Agreement, supra note 13, art. 4.
Daniel Gervais: The Google Book Settlement and the TRIPS Agreement
10
Copyright © 2011 Stanford Technology Law Review. All Rights Reserved
http://alonsosarmiento.law.officelive.com

The Right to Be Forgotten?

2011-04-17T01:45:00.000-07:00

By Conrad Coutinho on April 6th, 2011

Have you ever Googled your own name? Statistics say that you probably have. Egotism aside, in a world where potential employers, schools and even romantic partners are likely to Google you, it would be irresponsible not to be aware of what pops up when you search your name. Many experts (and this non-expert) even recommend setting up a Google alert in your name.

But, what can one really do if, for example, your top search results include an out of date, hopelessly inaccurate and embarrassing article from your hometown newspaper? As much guff as Facebook gets for its poor record on privacy protection, an average Facebook user has a relatively powerful set of tools at his or her disposal: you can delete or untag yourself from embarrassing photos, limit who can view your profile, and even delete your profile completely. But, is there anything you can do about embarrassing search results?

In 2010, Hugo Guidotti Russo, a Spanish plastic surgeon, filed a legal complaint with Spain’s privacy regulator, the Agency for Data Protection, asking them to order Google to remove a 1991 article about a malpractice complaint from his top search results. Russo insisted that because he was cleared of wrongdoing and the article did not mention this, it was within his right to privacy to have the search results removed. The agency agreed. Google is fighting the ruling which was recently referred to the European Court of Justice in Luxembourg on the issue of whether the ruling clashed with EU freedom of expression laws.

The case of the Mr. Russo is connected to the larger issue of whether governments should—or could—guarantee individuals a so-called “right to be forgotten.” Though, like most newly recognized rights, the contours are hazy and the terms ambiguous, the right to be forgotten is catching on. In 2009, the French secretary of state launched a campaign for le Doit a l’Oubli (the right to oblivion, though no English translation is quite adequate) that culminated in the adoption of so-called “codes of good practice” by several trade associations, social networks and search engines. The provisions are themselves broad but somewhat vague: adoptees are obligated to give notice to users about how to exercise their privacy rights, respect an individual’s right to consent to data processing, to receive prior notice of procession and to object to the use of their data. The European Union is currently tossing around some proposed legislation which would give people the right, any time to have all personal information online deleted—though it’s hard to see how this would work in practice. Even in the United States, where courts have been much less willing to allow individuals to assert a general right of privacy against search engines and social networks, the FTC has issued a working paper called “Safeguarding Consumer Privacy in an Era of Fast Transform” which recommends, among other things, that individuals have the right to have inaccurate information about themselves removed from databases.

Critics of the “right to privacy” argue that, in its extreme form, it’s tantamount to suppression of speech—censorship. Most facts and opinions worth writing about–and reading about– are facts and opinions about people. Individuals have always been able to fight others who publish false information using libel and defamation law, but falsity is not a requirement for a privacy claim. If individuals are empowered to suppress true or arguably true information written about them by third parties under the guise of privacy, the argument goes, our freedom of expression is significantly burdened. In one infamous case, Wikipedia was sued by two German murderers demanding that their names be removed from an article about their victim. German law allows criminals’ names to be withheld from association with their crimes after their sentences are over. The case of German murderers points to another criticism of the right to privacy: practicability. If a German court orders the removal of the names from the article, does it only apply to the German language version of Wikipedia or with a .de web url? Does it apply to any article accessible from Germany? Or only if the servers which host the article are located in Germany? Moreover, does Wikipedia, which can be edited by anyone, have an ongoing obligation to ensure that the ex-con’s names are kept of the site? For a website like Wikipedia, which relies heavily on user donations, and which relies on a relatively small number of editors to maintain their pages, an ongoing obligation to monitor for information about individuals is a heavy burden.

From the perspective of someone with a rare name—say for example, the author of this post (but three out of the first four results are not me!)—the right to delete whatever search results I wanted from Google would certainly be a blessing. That being said, there is a thin and hazy line between what information is truly private—which should be protected—and what information is merely embarrassing or inconvenient, but a legitimate part of the public discourse.
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El poder de los abogados internos en las compañías

2011-02-27T20:09:00.000-08:00

La crisis aumenta el poder de los abogados internos en las compañías

Natalia Sanmartin Fenollera - Madrid - 20/05/2010

La crisis ha cambiado el mercado de servicios legales en todo el mundo. Y lo ha hecho no sólo en el sector de las grandes firmas de abogados, sino también en el ámbito del asesoramiento legal interno. Los directores de asesoría jurídica de las compañías han ganado peso e ifluencia dentro de sus empresas en la actual coyuntura económica. "Los departamentos jurídicos de las empresas están viviendos una ola de popularidad interna", resume el estudio Law Firm of the 21st Century: The Clients' Revolution (La firma jurídica del siglo XXI: La revolución de los clientes) presentado por la firma internacional Eversheds y que recoge la opinión de de 130 letrados in-house y de 80 socios de despachos en todo el mundo.

El principal motivo de ese reforzamiento e influencia creciente está en el hecho de que más de la mitad de las asesorías internas han aumentado su carga de trabajo en los últimos tiempos y han reducido en igual medida el número de asuntos externalizados. No parece ser una tendencia puntual. Según el informe de Eversheds International, más de la mitad de los jefes de asesoría jurídica encuestados están convencidos de que las capacidades de sus departamentos aumentarán en los próximos cinco años y que la crisis económica ha dado un espaldarazo a esa tendencia.

Un mayor papel comercial

El propio papel del director de asesoría jurídica está cambiando, hasta el punto de haber comenzando a desempeñar en algunos casos funciones de consejero comercial senior -tres de cada cuatro encuestados así lo confiesan- y a asumir, en un 55% de los casos, responsabilidades de gobierno corporativo. Según Bryan Hughes, director ejecutivo de Eversheds, los resultados del informe revelan un progresivo proceso de transferencia de poder hacia el cliente, "debido en gran medida a que los letrados in-house han asumido un papel comercial más importante dentro de sus empresas. Esto afectará enormemente al sector legal, al reducir la carga de trabajo de las firma de abogados."

Otro de los grandes cambios que muestra el estudio es el interés de los clientes por la externalización de servicios en jurisdicciones con costes bajos y por la tecnología. Un tercio de los jefes de asesoría jurídica encuestados reconocen estar externalizando o pensando en externalizar trabajo legal que no requiere una alta cualificación en países con costes reducidos. Del mismo modo, casi seis de cada diez mantienen la misma postura respecto a las herramientas tecnológicas para el trabajo estandard.

Junto a esas tendencias, el informe confirma la creciente exigencia de los clientes respecto a los recortes de honorarios. Así, dos terceras partes de los directores de las asesorías jurídicas de las empresas confiesan haber exigido tarifas más bajas a sus abogados externos, y el 47% de los socios reconocen que ésa es la prioridad absoluta de sus clientes. Sin embargo, sólo el 25% de los socios están ofreciendo tarifas reducidas reales. "El cambio que según las predicciones tendría lugar a lo largo de los próximos 10 años ya ha llegado, y serán las empresas que respondan a las tendencias identificadas en el estudio las que obtengan verdaderos beneficios", apunta Bryan Hughes. Se trata de una revolución que no sabe de estatus. Para más de la mitad de los clientes (51%) y el 46% de los socios, el término magic circle, que designa a las grandes firmas de la City, resulta ahora mismo "caduco".

La facturación por horas cede terreno
El estudio confirma la desaparición de los honorarios por horas, que pasa a considerarse un método más de facturación, en vez del único. Aunque muchos socios de bufetes de abogados se están adaptando a los cambios (el 63% de los clientes indicaron que reciben más valor por su dinero desde que comenzó la recesión mediante extras, como secondees gratuitos), otros siguen sin proporcionar a sus clientes lo que demandan. "Cuando realizamos nuestro primer estudio sobre el sector jurídico hace dos años, sólo un 22% de clientes y un 48% de socios veían la facturación por servicio como una tendencia de futuro. Ahora, el 86% de los clientes y el 88% de los socios dicen que es una forma frecuente o más habitual de facturación", apunta Bryan Hughes. Para Lupicinio Rodríguez, socio director de Eversheds en España, "Eversheds Lupicinio ya iba en esa línea y el reciente estudio de Eversheds International confirma que es el rumbo correcto. Hace tiempo que pregonamos que nuestros abogados son capaces de proponer un presupuesto cerrado, porque estudian el caso, tienen mucha experiencia y conocen el mercado. Toda crisis es cambio, y creo que nosotros ya lo hemos hecho."

Lawyer Quotes

2010-10-31T22:55:00.000-07:00

The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day.
Abraham Lincoln
The power of the lawyer is in the uncertainty of the law.
Jeremy Bentham
Only lawyers and painters can turn white to black.
Japanese Proverb
“Lawyer: An individual whose principal role is to protect his clients from others of his profession.”
~Anonymous

Pon un abogado en tu empresa

2009-12-02T19:16:00.000-08:00

Por Ignacio de Miguel el 19 Enero 2009
Hace 7 años que me muevo con mi propia empresa, y un recurso que he necesitado y utilizado siempre es el abogado.

Desde la propia constitución de la empresa alguien tiene que redactar las escrituras. Y a partir de ahí cualquier relación con un cliente debería estar mediada por un contrato.

Podemos utilizar contratos genéricos o modelos, completamente gratuitos, o proporcionados por nuestro gestor contable. Pero a día de hoy, después de decenas de contratos firmados casi nunca me ha servido un modelo estandarizado. Y cuando el contrato me ha sido entregado por un proveedor, no ha habido ni una sola vez que lo haya firmado sin cambiar algo.

El abogado es algo más que un contrato puntual, al menos si es un buen abogado. Para que nos entendamos un poco más en el sector internet / informática, no es lo mismo una empresa de producto que una empresa de servicios.

Haciendo un símil, no es lo mismo un abogado o quien sea que te suelta un contrato estándar, que un abogado que se preocupa de proteger tus intereses a medida y conocer lo que realmente quieres y necesitas hacer.

El abogado es el guardaespaldas legal. Si te asesora bien, trabaja cada contrato como si fuera el único, se preocupa de conocer tu empresa y tu trabajo, es un buen abogado que además te va a librar de muchos problemas, porque evitará que lleguen.

Cláusulas de rescisión anticipada, indemnizaciones por incumplimientos de contrato, condiciones de servicio adaptadas, protección ante el abuso… son cuestiones que nunca deseas que tengan que ser tratadas, pero si tu abogado las ha plasmado en los contratos adecuadamente, al final te ahorras quebraderos de cabeza. Porque las rescisiones anticipadas, indemnizaciones, incumplimiento de condiciones de servicio, etc, se acaban produciendo.

Los emprendedores que montan su empresa con muy pocos recursos suelen prescindir del gestor contable y del abogado para ahorrar costes. Yo lo tengo claro, siempre he incluído en mi presupuesto tanto al contable como al abogado (sí, con algún enchufe que me ha ahorrado dinero). Creo que es una parte del dinero mejor empleada de la empresa y que debería ser casi tan obligatorio contar con ellos como tener el seguro del coche.

De todas formas siempre hay veces que podemos aprovechar un contrato modelo, que se ajusta lo suficiente a nosotros y no asumimos un gran riesgo. Para estos casos hay unas cuantas direcciones que debemos tener guardadas:

Tipologías de contratos de trabajo del INEM.
Contratos online generales
Contratos informáticos
Listado de modelos de contratos
Contratos en derecho.com
Nuestro abogado siempre me dice que todo se puede hacer, y a continuación tengo que explicarle de manera que lo entienda lo que quiero hacer. Es una parte del trabajo muy interesante, contarle a alguien ajeno al sector qué es lo que quieres hacer de forma que lo entienda de una manera tan sencilla que después sea capaz de trasladarlo al lenguaje legal.

Bueno, tengo que terminar con mi consejo del título: pon un abogado en tu empresa.

How to Hire an Attorney

2009-11-28T22:34:00.000-08:00

Hiring a good lawyer is crucial to any successful business. Here's everything you need to know about finding, interviewing and hiring the very best.

By Cliff Ennico
There are two professionals every business will need early on: an accountant and a lawyer. The reasons for hiring an accountant are pretty obvious--you need someone to help you set up your "chart of accounts," review your numbers periodically, and prepare all of your necessary federal, state and local tax returns. The reason for hiring a business attorney may not, however, be so apparent. A good business attorney will provide vital assistance in almost every aspect of your business, from basic zoning compliance and copyright and trademark advice to formal business incorporation and lawsuits and liability. First, some general rules about dealing with lawyers:

If you are being sued, it's too late. Most small businesses put off hiring a lawyer until the sheriff is standing at the door serving them with a summons. Bad mistake. The time to hook up with a good business lawyer is before you are sued. Once you have been served with a summons and complaint, it's too late--the problem has already occurred, and it's just a question of how much you will have to pay (in court costs, attorneys' fees, settlements and other expenses) to get the problem resolved.
America's judicial system is a lot like a Roach Motel--it's easy to get into court, but very difficult to get out once you've been "trapped." Most lawyers agree that while nobody likes to pay attorneys' fees for anything (heck, let's let our hair down--nobody likes paying or dealing with lawyers, period), but the fee a lawyer will charge to keep you out of trouble is only a small fraction of the fee a lawyer will charge to get you out of trouble once it's happened.

Big firm or small firm? Generally speaking, the larger the law firm, the greater the overhead, therefore the higher the hourly rates you will be expected to pay. Still, larger firms have a number of advantages over smaller ones. Over the past 20 years, lawyers have become incredibly specialized. If you use a solo practitioner or small firm as your lawyer(s), it's likely that they will not have all the skills you may need to grow your business. I don't know of any solo practitioner, and very few small firms (under 10 lawyers) that could handle your lawsuits, negotiate your lease of office or retail space, file a patent or trademark, draft a software license agreement, advise you on terminating a disruptive employee, and oversee your corporate annual meeting. Sooner or later, these "generalists" will have to refer you out to specialists, and you will find yourself dealing with two or three (or even more) attorneys.
While larger firms are more expensive to deal with, they have two significant advantages: 1) they usually have all the legal skills you need "under one roof," and 2) they have a lot of clout in the local, regional and (perhaps) national legal community. A nasty letter from a "powerhouse" law firm with offices in 30 states is a lot more intimidating than a nasty letter from a solo practitioner who is not admitted to practice in the defendant's state. Also, being connected with a large, well-established law firm may have intangible benefits--they may be willing to introduce you to financing sources or use their name as a reference when seeking partnership arrangements. Certainly if you run a fast-growing entrepreneurial company that plans to go public (or sell out to a big company) some day, you would need to work with lawyers whose names are recognized in the investment banking and venture capital communities.

Types of Attorneys
Like doctors, lawyers are becoming increasingly specialized. Someone who does mostly wills, house closings and other "non-business" matters is probably not a good fit for your business. At the very least, you will need the following sets of skills. The more skills reside in the same human being, the better!

1. Contracts. You will need a lawyer who can understand your business quickly; prepare the standard form contracts you will need with customers, clients and suppliers; and help you respond to contracts that other people will want you to sign.

2. Business organizations. You will need a lawyer who can help you decide whether a corporation or limited liability company (LLC) is the better way to organize your business, and prepare the necessary paperwork.

3. Real estate. Leases of commercial space--such as offices and retail stores--are highly complex and are always drafted to benefit the landlord. Because they tend to be "printed form" documents, you may be tempted to think they are not negotiable. Not so. Your attorney should have a standard "tenant's addendum," containing provisions that benefit you, that can be added to the printed form lease document.

4. Taxes and licenses. Although your accountant will prepare and file your business tax returns each year, your lawyer should know how to register your business for federal and state tax identification numbers, and understand the tax consequences of the more basic business transactions in which your business will engage.

5. Intellectual property. If you are in a media, design or other creative-type business, it is certainly a "plus" if your lawyer can help you register your products and services for federal trademark and copyright protection. Generally, though, these tasks are performed by specialists who do nothing but "intellectual property" legal work. If your lawyer says he or she "specializes in small businesses," then he or she should have a close working relationship with one or more intellectual property specialist.

Most lawyers will charge a flat one-time fee for routine matters, such as forming a corporation or LLC, but will not volunteer a flat fee unless you ask for it. Be sure to ask if the flat fee includes disbursements (the lawyer's out-of-pocket expenses, such as filing fees and overnight courier charges), and when the flat fee is expected to be paid. Many attorneys require payment of a flat fee upfront, so that they can cover their out-of-pocket expenses. You should always ask to "hold back" 10 to 20 percent of a flat fee, though, in the event the lawyer doesn't do the job well.

Lawyers will be reluctant to quote flat fees if the matter involves litigation or negotiations with third parties. The reason for this is bluntly stated by a lawyer friend of mine: "Even though it's a transaction I've done dozens of times, if the other side's lawyer turns out to be a blithering idiot who wants to fight over every comma and semicolon in the contracts, then I can't control the amount of time I will be putting into the matter, and will end up losing money if I quote a flat fee." In such situations, you will have to pay the lawyer's hourly rate. You should always ask for a written estimate of the amount of time involved, and advance notice if circumstances occur that will cause the lawyer to exceed his or her estimate.

If a lawyer asks you for a retainer or deposit against future fees, make sure the money will be used and not held indefinitely in escrow, and that the lawyer commits to return any unused portion of the retainer if the deal fails to close for any reason. You should be suspicious of any lawyer who offers to take an ownership interest in your business in lieu of a fee.
Questions to Ask Yourself Before Hiring an Attorney
Is this person really a frustrated businessperson disguised as a lawyer? Some lawyers get tired of being on the outside looking in when it comes to business dealings. Such a lawyer may attempt to second-guess your business judgment. Be wary of a lawyer who takes too keen an interest in the nonlegal aspects of your work.
Does this person communicate well? J. P. Morgan once said, "I do not pay my lawyers to tell me what I cannot do, but to tell me how to do what I want to do." The right lawyer for your business will not respond to your questions with a simple "That's OK" or "No, you can't do that," but will outline all your available options and tell you what other businesses in your situation normally do.
Are the offices conveniently located? You will need to visit your attorney frequently, especially in your first few years in business. You should not have to waste a day traveling to and from the nearest city each time you need legal advice. When in doubt, choose a lawyer close to home.
Do I like this person? Don't forget to follow your instincts and feelings. You should be able to communicate openly and freely with your attorney at all times. If you feel you cannot trust a particular lawyer or you believe the two of you have different perspectives, keep looking. Just remember that Ally McBeal is not reality: good looks and a dynamic personality are not as important in a lawyer as accuracy, thoroughness, intelligence, the willingness to work hard for you and attention to detail. As a former client once told me: "My father always said, 'Never trust a lawyer who has 20/20 vision and wears Armani.' I chose you as my lawyer because you look like you work for a living." The right lawyer for your business will take that as a compliment.

Cost-Saving Strategies
For many entrepreneurs, the idea of consulting a lawyer conjures up frightening visions of skyrocketing legal bills. While there's no denying that lawyers are expensive, the good news is there are more ways than ever to keep a lid on costs. Start by learning about the various ways lawyers bill their time:

Hourly or per diem rate. Most attorneys bill by the hour. If travel is involved, they may bill by the day.
Flat fee. Some attorneys suggest a flat fee for certain routine matters, such as reviewing a contract or closing a loan.
Monthly retainer. If you anticipate a lot of routine questions, one option is a monthly fee that entitles you to all the routine legal advice you need.
Contingent fee. For lawsuits or other complex matters, lawyers often work on a contingency basis. This means that if they succeed, they receive a percentage of the proceeds--usually between 25 percent and 40 percent. If they fail, they receive only out-of-pocket expenses.
Value billing. Some law firms bill at a higher rate on business matters if the attorneys obtain a favorable result, such as negotiating a contract that saves the client thousands of dollars. Try to avoid lawyers who use this method, which is also sometimes called "partial contingency."
If you think one method will work better for you than another, don't hesitate to bring it up with the attorney; many will offer flexible arrangements to meet your needs. When you hire an attorney, draw up an agreement (called an "engagement letter") detailing the billing method. If more than one attorney works on your file, make sure you specify the hourly rate for each individual so you aren't charged $200 an hour for legal work done by an associate who only charges $75. This agreement should also specify what expenses you're expected to reimburse. Some attorneys expect to be reimbursed for meals, secretarial overtime, postage and photocopies, which many people consider the costs of doing business. If an unexpected charge comes up, will your attorney call you for authorization? Agree to reimburse only reasonable and necessary out-of-pocket expenses.

No matter what type of billing method your attorney uses, here are some steps you can take to control legal costs:

Have the attorney estimate the cost of each matter in writing, so you can decide whether it's worth pursuing. If the bill comes in over the estimate, ask why. Some attorneys also offer "caps," guaranteeing in writing the maximum cost of a particular service. This helps you budget and gives you more certainty than just getting an estimate.
Learn what increments of time the firm uses to calculate its bill. Attorneys keep track of their time in increments as short as six minutes or as long as half an hour. Will a five-minute phone call cost you $50?
Request monthly, itemized bills. Some lawyers wait until a bill gets large before sending an invoice. Ask for monthly invoices instead, and review them. The most obvious red flag is excessive fees; this means too many people--or the wrong people--are working on your file. It's also possible you may be mistakenly billed for work done for another client, so review your invoices carefully.
See if you can negotiate prompt-payment discounts. Request that your bill be discounted if you pay within 30 days of your invoice date. A 5-percent discount on legal fees can add thousands of dollars to your yearly bottom line.
Be prepared. Before you meet with or call your lawyer, have the necessary documents with you and know exactly what you want to discuss. Fax needed documents ahead of time so your attorney doesn't have to read them during the conference and can instead get right down to business. And refrain from calling your attorney 100 times a day.
Meet with your lawyer regularly. At first glance, this may not seem like a good way to keep costs down, but you'll be amazed at how much it reduces the endless rounds of phone tag that plague busy entrepreneurs and attorneys. More important, a monthly five- or 10-minute meeting (even by phone) can save you substantial sums by nipping small legal problems in the bud before they have a chance to grow.
"Where to Start Looking" section by Karen E. Spaeder, and "Cost-Saving Strategies" section excerpted fromStart Your Own Business.

http://alonsosarmiento.googlepages.com

Peru and Brazil Messing around with dams

2009-11-23T16:22:00.000-08:00

Nov 19th 2009 | INAMBARI
From The Economist print edition

First build a road, then flood it

JOSÉ CHÁVEZ, a farmer, is one of the few people in the Inambari area who welcomes a plan to build a huge hydroelectric dam where the departments of Madre de Dios, Cusco and Puno meet in Peru’s south-eastern jungle. He says that the waters of the Araza and Inambari rivers, which merge a stone’s throw from his back porch, regularly flood his rambling wooden house. It would be permanently flooded if the dam is built. Mr Chávez trusts in the promise he has received of relocation.

Inambari is one of up to six proposed hydroelectricity schemes on Peru’s jungle rivers, costing around $16 billion, contained in an agreement signed in April by the president, Alan García, and his Brazilian counterpart, Luiz Inácio Lula da Silva. The Inambari dam would be the first to be built. It would generate 2,000 megawatts of electricity—twice the output of Peru’s largest existing hydroelectric plant, and almost half its current electricity consumption. Most of the power would be exported to Brazil to start with, but the proportions would slowly reverse and after 30 years Peru would own the $4 billion project.

The dam would create a lake of up to 450 square kms (175 square miles), flooding some 60 villages, as well as roads and forest. Egasur, a Brazilian-owned consortium promoting the scheme, says that people displaced by the dam would be rehoused in better conditions.

Peru’s environment minister, Antonio Brack, has dropped his earlier opposition to the scheme. He says it offers benefits, including fish farming. The government claims local politicians are whipping up dissent ahead of local elections next year.

But for whatever reason, opposition is growing. Locals are keener on another big project, the paving of the grandly named Inter-Oceanic Highway linking Pacific ports in southern Peru to the Brazilian city of Rio Branco, from where a highway goes on to São Paulo, 3,600 kms (2,250 miles) from Cusco. The two governments agreed in 2005 to asphalt the road. Work is proceeding rapidly and both presidents would like it to be finished before they leave office in 2011. Inconveniently, the Inambari dam would flood 120 kms of the highway, on which upgrading work has already begun. It seems that in both Peru and Brazil the ministries of transport and of energy don’t talk to each other.

peruvianlawyer wrote: Nov 24th 2009 12:45 GMT Dear Sir.
Probably project planners in Peru and Brazil, have been inspired by a nymph and plan to build a pharaonic and lavish glass dome with neon lights and video projectors intertwined with advertising clips, news and stories of ghosts over the 120 miles of road to avoid being flooded with water from the new dam and also to serve as a tourist attraction for drivers of trucks that eventually venture to carry goods across the continent by land at a cost of gold for delivery in a Peruvian port a ship that comes from crossing the Straits of Magellan and the Panama Canal and going back. Hopefully this time the reality no more than fiction, for the sake of the Amazon.

Critics’ Picks Video: ‘Aguirre: The Wrath of God’

2009-11-23T15:58:00.000-08:00

November 23, 2009, 6:00 pm
Critics’ Picks Video: ‘Aguirre: The Wrath of God’
By MEKADO MURPHY

This week, A. O. Scott gives thanks for the filmmaker Werner Herzog and his 1972 film “Aguirre, the Wrath of God,” which looks at the 17th Century conquests of Spanish conquistadors in Peru. It stars Mr. Herzog’s frequent collaborator Klaus Kinski. According to Mr. Scott, the film “paints an unsparing picture of colonial greed and the brutal encounter between human ambition and the wildness of nature.”

Have you seen “Aguirre: The Wrath of God?” Please share your thoughts on the film and what you consider to be Mr. Herzog’s best work.

November 23, 2009
6:46 pm

Dear Sir.
The film is set in a time and a place where law and justice are absent and has value only the strongest will. A law still applies in Peru and many parts of the world, starting with the countries called “developer” in relation to poor countries.
But it is also the story of an indomitable will to serve a deluded ambition, is the strength of the human being manage to overcome the forces of nature, even knowing that they may eventually take revenge.
http://alonsosarmiento.googlepages.com

— Alonso Sarmiento

Climate Change Equals Culture Change in the Andes

2009-10-17T21:44:00.000-07:00

Melting sacred glaciers and other fundamental changes confront the Andes's Quechua-speaking farmers
By Barbara Fraser
MAHUAYANI, Peru—A full moon hangs in the frosty sky as hundreds of dancers file in darkness toward the top of the Sinakara valley high in the Andes. Footsteps crunch frozen tundra, and dancing shoes step gingerly over ice-covered rivulets. Musicians blow on numb fingers as sunlight tips the hills to the west and creeps up the valley.

High above, ice fields on the eastern peaks remain in shadow.

Suddenly dancers and musicians turn eastward and kneel, baring their heads. A halo rims the tallest crag, and as the sun appears, music bursts from scores of flutes, drums, accordions and saxophones. Moments later the air fills with the sound of running water, as the skin of ice melts, freeing the rivulets.

At more than 15,000 feet above sea level, it is easy to understand why Andean people have long worshiped the elements that allow them to survive in this harsh climate. In the dry season - May to October - rivulets form streams that flow to rivers far below, providing drinking water and keeping alpine pastures alive so livestock can survive until the rains come again.

Backlit by the sun, long columns of men dressed in shaggy black robes stream down the mountainsides. In a test of endurance and devotion, they have spent the night on the glaciers that still cling to the rocks above the valley. Waving banners and surrounded by dancers, they return to the sanctuary of the Señor de Qoyllur Rit'i, the center of a Christian fiesta rooted in a far older Andean devotion.

These men, known as ukukus, whose costumes evoke the Andean spectacled bear, used to hack off huge hunks of ice and haul them down the mountain on their backs. That is now forbidden. They and the tens of thousands of pilgrims who stream up the mountainside every year are worried that the glacier that is central to this ritual is disappearing.

Climate change is forcing a cultural change.

While governments seek technical solutions to climate-related problems, Quechua-speaking farmers in the Andes are struggling to understand events that are altering their livelihood. Drip irrigation and water reservoirs are only a partial response to a profound change in their relationship with their environment.

People in the Andes "lead vertical livelihoods," says Jeffrey Bury of the University of California at Santa Cruz. They take advantage of every ecological niche, growing crops in valleys and grazing llamas and alpacas on to bleak mountaintops. But farmers are being squeezed by warmer temperatures that shift crops up mountainsides and the expansion of mountaintop mining that destroys high wetland pastures, Bury says.

Audio slide show: Effects of Climate Change on People in the Andes

Andean peaks are more than scenery; they are protective deities, or apus. For generations, the massive and powerful Mt. Ausangate near the Qoyllur Rit'i sanctuary has been white. Now, it is streaked where snow has melted and bare rock shows.

"The mountains are powerful in a very everyday kind of way. People speak of them, there's a lot of ritual involved with them, and their darkening is very disturbing," says Ben Orlove, an anthropologist at the University of California at Davis, who has studied Andean communities since the 1970s. "There's something very troubling about the glaciers being gone."

Carlos Flores, an anthropologist and former Jesuit priest who accompanied the Qoyllur Rit'i pilgrimage for several decades, recalls people commenting on glacial retreat as long ago as the 1970s. Some saw it as a sign of the end of the world.

The Rev. Antonio Sánchez-Guardamino, the Catholic priest in Ocongate, who has also worked among remote Andean communities for decades, is more cautious. "The snow-capped peaks are not the only apus," he says. "There are many apus that are not snow-capped, and people make offerings to them."

Nevertheless, the vanishing glaciers may still signal the end of the world as the Quechua farmers know it.

"If the snow disappears, the people will disappear, too," Sánchez-Guardamino says. "If the snow disappears, we will be left without water. The pastures and the animals will disappear. Everything is interconnected. The problem of the melting of the glaciers is that the source of life is drying up."

Andean farmers struggle to understand the changes. Some say the mountains are turning black because they are angry or sad. Some blame pollution. Carmina Sicusta has another explanation.

"The earth itself is sick," she says.

Sicusta, 48, lives in Amaru, a village of small adobe houses on a mountainside above Pisaq, a picturesque town near Cusco that is best known for Inca ruins and a Sunday market that draw tourists from around the world.

In the past decade or so, Amaru's farmers have watched the pattern of hillside fields change. On the frigid hilltops, the tundra-like pasture suitable only for llamas is receding. Fields of grain blanket high hillsides that were once too cold for anything but animals. Families that used to own dozens of llamas now have only a handful.

"The earth is warming. The waters are warming. The springs are drying up," Sicusta says in Quechua, looking up from her weaving. "There is going to be a shortage of food. Our children will have less to eat."

Her husband, Eugenio Palomino, 46, adds, "There's less and less rain. There won't to be a good harvest."

Farmers say weather patterns are changing, rain and frost come out of season, and the signs they always used to tell when it was time to till or plant are no longer reliable.

Agriculture depends on predictability, Bury says. Early rains wash seeds away, a dry spell during the growing season keeps potato tubers from developing, and rain at the normally dry harvest time rots grain. All spell disaster for subsistence farmers.

While physical scientists may consider people's perceptions of climate change subjective and unreliable, Bury insists it is important to see the world as mountain people do. "When you lose your crops, it's not a subjective event," he says. "People have a good 10-year memory of how things have changed."

In some cases, perceptions may run ahead of scientific evidence, he says, because people could see very local changes that do not show up on computer models with a 100-kilometer resolution. This is not the first time people have had to adjust to climate change in the Andes. Historian Mark Carey of Washington and Lee University has heard legends referring to glacial retreat and lake formation. Based on pollen from lake sediment cores, French climate researcher Alex Chepstow-Lusty believes gradual warming beginning in 1100, after a long arid spell, facilitated the rise of the Inca Empire.

But it is not easy for Andean farmers to conceive of life in a radically different environment. People in Copa Grande, a village in the snow-capped Cordillera Blanca in central Peru, cannot imagine living like farmers in the bare Cordillera Negra across the valley, who depend only on rainwater for irrigation.

"People generally have a very bleak outlook, and most are thinking on a very short time scale," says anthropologist Katherine Dunbar of the University of Georgia, who is doing doctoral research in Copa Grande. "People say, 'The glaciers are going to go, there's not going to be water and we're all going to die.'"

A generation ago, the glacier above the village was the place where teenagers spent time with friends and courted. Fewer go now, because the glacier is farther away and the ice at the edge is soft and dangerous.

"The loss of the glacier is the loss of a social scene," Dunbar says.

Because environmental changes have a social and cultural impact, technical solutions alone are not enough, says Lino Loayza of ANDES, a Peruvian non-profit organization working with residents of Amaru and neighboring communities.

"Our first priority is food security, so people eat well and have enough food," Loayza says.

Besides planting a variety of staple crops, the communities have established the Parque de la Papa, or "Potato Park," to preserve some 700 varieties of native potatoes adapted to different altitudes. They prepare medicinal plants and are branching into tourism, with hiking circuits, a restaurant specializing in potato dishes, and crafts workshops. As farming becomes more unpredictable, they hope the alternatives will enable them and their children to stay on their land.

Further north, the snow-capped Cordillera Blanca has long been a draw for Peruvian and foreign hikers and climbers. In the communities Cary has studied, about 25 percent of the people work in tourism. The area is losing about 10 percent of its snow cover per decade, and guides say softer snow is making some climbing routes more dangerous.

Worldwide, studies predict the migration of between 25 million and 1 billion people because of climate change and related disasters, but economics also plays a role. A sagging tourist industry in the Cordillera Blanca could mean fewer jobs, spurring migration to cities even before the glaciers disappear. And most of Peru's large cities are in the coastal desert, where water stress is likely to be greater.

Nevertheless, the pilgrims at Qoyllur Rit'i pilgrims faced the future with faith. Awaiting sunrise on a ridge below the sanctuary, a tall, young ukuku with a short, braided beard and a single silver earring - himself an emblem of cultural change - said the rituals will continue even if the glaciers are gone.

"These people are very resilient," Orlove says. "They're in it for the long haul. They're very committed to their land. They're able to come up with remarkable responses."

This article originally appeared at The Daily Climate, the climate change news source published by Environmental Health Sciences, a nonprofit media company.

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lawyerinperu at 11:41 PM on 10/14/09
Dear Sir.
What had said Miss Barbara Frasser is absolutely true, and be must added to that tragedy, the poverty of the most of the people who live in those almost desert zones. The ecosystem of that towns depend almost solely of the melting ice and seasonal rain, and if that changes dramatically as now and in the nexts years, the peoples destiny of that zones will be worst than use to be

Peru's Lost City of Gold

2009-10-07T19:35:00.000-07:00

by Jonathan Levi | Published March 2009
When Machu Picchu is overrun with tour buses, Choquequirao—just twenty-five miles away and accessible only on foot—is deserted. Jonathan Levi sets off on a five-day trek and discovers the secret of Peru's original El Dorado

Don Nazario Turpo died a stupid death. The driver of the bus in which he was traveling from Saylla to Cuzco didn't realize that the local campesinos were making one of their quixotic low-tech protests—placing stones and tree trunks across the road without warning. Fourteen others besides Nazario died in the crash, and fifty were wounded. I had met Nazario, the pacu, or shaman, of Ausangate, a couple of years before at Machu Picchu. Long after the other tourists had gone, he sat in the quiet of the ruins and told my daughter's fortune. Although pacu translates into English as shaman, the pacu is little different from the priest of any religion who acts as an intermediary between the human and the divine. It's just that in the religion of the Incas—and Nazario, like most Peruvians, was a descendant of the Incas—mountains, rivers, and all the forces of nature are apus, spirits. "I'm coming back to Peru," Rebecca had whispered to me as we walked past grazing llamas in the dusk.

"But not to Machu Picchu," Nazario had said to me the next morning. The impregnable fortress of the Incas had fallen to the forces of mass tourism. Every day, foreigners by the hundreds were arriving from Aguas Calientes on buses belching diesel, and charging down the Inca Trail and through the Sun Gate. They came here guzzling pisco sours on the five-hundred-dollar-a-head Orient-Express Hiram Bingham deluxe day-trip from Cuzco, gazing seraphically at campesinos tilling their fields with hand ploughs—a journey to what is fast becoming one of the world's most endangered gorgeous sites.

Nazario had mentioned another ancient Incan citadel, a name full of guttural q's in the local Quechua language. No one went to this place. But it wasn't until Roger Valencia of the tour operator Auqui e-mailed me with news of Nazario's death that I wrote back to ask if he knew about this sister to Machu Picchu.

"Choquequirao," Roger answered instantly. "Even more beautiful than Machu Picchu. When do you want to go?"

Choquequirao. Choqeqirau. Chokekiraw. I Googled as many variations as I could imagine and came up with very little. I pulled my much abused copy of Lost City of the Incas off the shelf and searched the index. Lost City was written by Hiram Bingham forty years after he had become the first Northerner, in 1911, to "discover" Machu Picchu. Pictures of Bingham in Peru show a certain kind of Yalie who was still in residence several generations later: a Faulknerian dreamer from the provinces (in Bingham's case, Hawaii instead of Mississippi); a man whose height and good looks made him the rumored inspiration for Indiana Jones, and doomed him to a desire for easy conquests. Yet without the inheritance that many of his classmates brandished on their lapels, Bingham realized that he needed to write himself into mythology. "Machu Picchu was to Bingham the crowning of all his purest dreams as an adult child," wrote Che Guevara decades later.

Lost City was full of Choquequirao. Choquequirao, in fact, was Bingham's destination on his virgin trip to Peru in 1909, the city he believed to be the last holdout of the Incas during the dark days of the 1530s, when the Spanish conquistadors of Francisco Pizarro systematically destroyed their empire. City of Gold was how the Peruvians translated the name to Bingham, a guttural El Dorado. The last holdout would hold the last treasure—not to mention the thrill of danger. "In the journey to Choquequirao," Bingham wrote, "it seemed as though our heavily laden mules must surely lose their footing and roll down the fifteen hundred feet to the raging Apurímac River below."

Once Bingham decided that Machu Picchu, in fact, was the City of Gold, Choquequirao faded like a discarded high school girlfriend. But recent archaeologists have cast doubt on Bingham's theories on Machu Picchu. Choquequirao, the original City of Gold, may be getting ready for its red carpet walk.

I called Rebecca. My daughter had already fulfilled Nazario's prophecy, having returned to Peru just after college graduation to teach the local children in the town of Urubamba, up the river from Machu Picchu.

"Sure," she said. "May's good for me, I can take a day off." I replied that there's a reason Choquequirao is so unknown. It takes more than a day to reach it, and even then there's no easy way to do so. I knew some people who had flown in by helicopter, but the winds in the mountains can be vengefully unpredictable. They had nearly crashed. Three times.

"It's a five-day hike," Roger said.

"With mules?" I asked, imagining Bingham's heavily laden companions.

"Leave it me."

And so it was that at noon on an early-May day, after a four-hour drive from Urubamba, Rebecca and I found ourselves at the beginning of the trail, squatting beside a camp stove with our guide, Ana, and our cook, Felicitas, finishing up a lunch of cold chicken and cauliflower. The fifth member of our party, Carlos, our arriero (muleteer), ran after one of our three mules, which had just disappeared off the side of the road.

It was Ana who, several years before, had introduced us to Nazario and invited him on our trip to Machu Picchu. The daughter of a schoolteacher from Cuzco and a Quechua-speaking mother, she had begun guiding visitors into the rain forest of Manu and the Incan villages of the altiplano during the worst of the guerrilla violence of the 1980s. Ana knew a lot of facts—names of plants and trees and birds and historical dates—but even better, she knew a lot of rumors, a lot of folk history, tales of ghosts and apus.

For the first hour, we skipped three abreast on a wide trail. Rebecca and I looked at the broad panorama of Salcantay Mountain and the nearer glacial peak of Padreyoc across the river, and then at each other. This was lovely. Less than twenty miles to Choquequirao. Piece of cake.
And then we turned the corner at the town of Capuliyoc and saw what lay ahead. "There." Ana pointed to a bump on a mountain in the distance. "That's Choquequirao." With the sun directly above, we could just make out what seemed to be a handful of man-made structures in the distant trees. Not quite close enough to touch but almost. "And that," she pointed down, "is the Apurímac." We took her word that the twisting white thread below was a river. Far below. One mile below. This was the canyon of the Apurímac, the true headwaters of the Amazon, twice as deep as the Grand Canyon. "And that is our path." A snaky thing. A steep snaky thing, so steep it disappeared at times. And then, across the river, another steep snaky thing. Down one, up the other.

"Daddy . . ." Rebecca began, in a voice I hadn't heard since her eighth birthday.

"I didn't know," I stammered. Bingham's heavily laden mules plunged through my guilt.

In the first hour we discovered at least four ways to get downhill, three of them involving our feet. In the second hour we found that, as narrow and steep as the path was, Carlos and Felicitas and our heavily laden mules were still able to trot along without slipping over the edge. In the third hour, I began to wonder how much this path resembled the one Hiram Bingham had trod a hundred years before. It sliced mercilessly through fields of bloodred wild grass. It slalomed around iron-rich rock slides that looked as if they had happened only moments before. It sought shelter from the unmediated altiplano sun beneath white-blossomed cotton trees laden with vines and orchids. And in the fourth hour, we realized just how appreciative your right quad and your left big toe and your calf muscles can be when you reach the campsite and give them a rest.

Felicitas and Carlos and the mules had navigated the seven miles to the site, Chiquisca, in half the time it took us. The upper site was already packed with the tents of a dozen people, mostly French couples, their bare calves painted with bug bites. Twenty-year-old Uriel connected a pipe to the spring, and we bathed in fresh glacial water using a pockmarked plastic Gatorade bottle for a showerhead. We drank tea and ate popped corn of the giant Peruvian variety in the last heat of the afternoon, as a pair of Andean condors circled three thousand feet above us.

The stars replaced the sun by seven o'clock—first Scorpio, with its two piercing eyes, and, after dinner, the sideways kite of the Southern Cross, rising above us on the south side of the valley. I fell asleep to the sound of the mules rolling in the cool of the dust above camp.

The next morning, we let gravity and altiplano french toast drag us down the final hill of the canyon to Playa Rosalina, by the banks of the Apurímac. One mile lower than the main village of Cachora, we were in the heart of a tropical climate. Agave and saguaro cactus lined the path parallel to the river. May is the first month of the dry season, and the roar of the river, twenty feet below its high-water mark, was more pussycat than lion. Before the bridge, fruit trees signaled a spring. And within that grove, improbably, was a series of sturdy buildings that resembled an Andean Motel 6.

And then we turned the corner at the town of Capuliyoc and saw what lay ahead. "There." Ana pointed to a bump on a mountain in the distance. "That's Choquequirao." With the sun directly above, we could just make out what seemed to be a handful of man-made structures in the distant trees. Not quite close enough to touch but almost. "And that," she pointed down, "is the Apurímac." We took her word that the twisting white thread below was a river. Far below. One mile below. This was the canyon of the Apurímac, the true headwaters of the Amazon, twice as deep as the Grand Canyon. "And that is our path." A snaky thing. A steep snaky thing, so steep it disappeared at times. And then, across the river, another steep snaky thing. Down one, up the other.

"Daddy . . ." Rebecca began, in a voice I hadn't heard since her eighth birthday.

"I didn't know," I stammered. Bingham's heavily laden mules plunged through my guilt.

In the first hour we discovered at least four ways to get downhill, three of them involving our feet. In the second hour we found that, as narrow and steep as the path was, Carlos and Felicitas and our heavily laden mules were still able to trot along without slipping over the edge. In the third hour, I began to wonder how much this path resembled the one Hiram Bingham had trod a hundred years before. It sliced mercilessly through fields of bloodred wild grass. It slalomed around iron-rich rock slides that looked as if they had happened only moments before. It sought shelter from the unmediated altiplano sun beneath white-blossomed cotton trees laden with vines and orchids. And in the fourth hour, we realized just how appreciative your right quad and your left big toe and your calf muscles can be when you reach the campsite and give them a rest.

Felicitas and Carlos and the mules had navigated the seven miles to the site, Chiquisca, in half the time it took us. The upper site was already packed with the tents of a dozen people, mostly French couples, their bare calves painted with bug bites. Twenty-year-old Uriel connected a pipe to the spring, and we bathed in fresh glacial water using a pockmarked plastic Gatorade bottle for a showerhead. We drank tea and ate popped corn of the giant Peruvian variety in the last heat of the afternoon, as a pair of Andean condors circled three thousand feet above us.

The stars replaced the sun by seven o'clock—first Scorpio, with its two piercing eyes, and, after dinner, the sideways kite of the Southern Cross, rising above us on the south side of the valley. I fell asleep to the sound of the mules rolling in the cool of the dust above camp.

The next morning, we let gravity and altiplano french toast drag us down the final hill of the canyon to Playa Rosalina, by the banks of the Apurímac. One mile lower than the main village of Cachora, we were in the heart of a tropical climate. Agave and saguaro cactus lined the path parallel to the river. May is the first month of the dry season, and the roar of the river, twenty feet below its high-water mark, was more pussycat than lion. Before the bridge, fruit trees signaled a spring. And within that grove, improbably, was a series of sturdy buildings that resembled an Andean Motel 6.
And then we turned the corner at the town of Capuliyoc and saw what lay ahead. "There." Ana pointed to a bump on a mountain in the distance. "That's Choquequirao." With the sun directly above, we could just make out what seemed to be a handful of man-made structures in the distant trees. Not quite close enough to touch but almost. "And that," she pointed down, "is the Apurímac." We took her word that the twisting white thread below was a river. Far below. One mile below. This was the canyon of the Apurímac, the true headwaters of the Amazon, twice as deep as the Grand Canyon. "And that is our path." A snaky thing. A steep snaky thing, so steep it disappeared at times. And then, across the river, another steep snaky thing. Down one, up the other.

"Daddy . . ." Rebecca began, in a voice I hadn't heard since her eighth birthday.

"I didn't know," I stammered. Bingham's heavily laden mules plunged through my guilt.

In the first hour we discovered at least four ways to get downhill, three of them involving our feet. In the second hour we found that, as narrow and steep as the path was, Carlos and Felicitas and our heavily laden mules were still able to trot along without slipping over the edge. In the third hour, I began to wonder how much this path resembled the one Hiram Bingham had trod a hundred years before. It sliced mercilessly through fields of bloodred wild grass. It slalomed around iron-rich rock slides that looked as if they had happened only moments before. It sought shelter from the unmediated altiplano sun beneath white-blossomed cotton trees laden with vines and orchids. And in the fourth hour, we realized just how appreciative your right quad and your left big toe and your calf muscles can be when you reach the campsite and give them a rest.

Felicitas and Carlos and the mules had navigated the seven miles to the site, Chiquisca, in half the time it took us. The upper site was already packed with the tents of a dozen people, mostly French couples, their bare calves painted with bug bites. Twenty-year-old Uriel connected a pipe to the spring, and we bathed in fresh glacial water using a pockmarked plastic Gatorade bottle for a showerhead. We drank tea and ate popped corn of the giant Peruvian variety in the last heat of the afternoon, as a pair of Andean condors circled three thousand feet above us.

The stars replaced the sun by seven o'clock—first Scorpio, with its two piercing eyes, and, after dinner, the sideways kite of the Southern Cross, rising above us on the south side of the valley. I fell asleep to the sound of the mules rolling in the cool of the dust above camp.

The next morning, we let gravity and altiplano french toast drag us down the final hill of the canyon to Playa Rosalina, by the banks of the Apurímac. One mile lower than the main village of Cachora, we were in the heart of a tropical climate. Agave and saguaro cactus lined the path parallel to the river. May is the first month of the dry season, and the roar of the river, twenty feet below its high-water mark, was more pussycat than lion. Before the bridge, fruit trees signaled a spring. And within that grove, improbably, was a series of sturdy buildings that resembled an Andean Motel 6.

"The engineers came to build the lodge," Isabel Pancorvo told me. "The first time, I cooked for them, gave them beer and chichi [homemade Peruvian corn beer] and they paid. The second time, the same thing and they paid. The third time, they put in plumbing, ate my food, drank my chicha, locked the doors, and ran away. They didn't pay."

I found Isabel in a dark shack across from the deserted buildings at Playa Rosalina, waiting for the occasional hiker to walk by and buy a soft drink or chicha. In her broad-brimmed straw hat, she came about halfway up my chest. I bought three passion fruits and invited her to join us for a cup of mate de coca. She sat with us on a low wall outside the abandoned buildings. I asked where she lived. She pointed up the mountain.

"Behind the tree house?" I asked.

"I think in the tree house," Rebecca whispered to me.

"Alone?" I whispered back.

Rebecca quickly translated Isabel's rapid Spanish. She was sixty-two years old. There was a husband who was superfluous, and a few sons who had either died or run off to Lima—Rebecca was unsure. The deserted lodge was part of a Peruvian-French initiative, brokered in part by Eliane Karp, the French-born wife of former president Alejandro Toledo. The flight of the engineers presumably coincided with the end of Toledo's term.

"What did she say?" I asked.

"Something about debt forgiveness," Rebecca answered. "Is that a word?"

"Didn't she say something about Russia?"

"Sí, sí," Isabel answered. "Last year, four beautiful Russian ballerinas came with three musicians. They played and danced—right here." She pointed to the concrete terrace of the abandoned lodge as visions of sugarplum fairies danced in my head. Petrushka by the Apurímac, Swan Lake with condors, all to a balalaika accompaniment. "I taught them a huayño dance," she said, putting down her teacup and demonstrating the shuffle step. "I'll teach you."

"I bet Hiram Bingham never did that," I boasted to Rebecca fifteen minutes later as we crossed the bridge and waved good-bye to Isabel.

"You mean kick a small old Quechua woman?" It was true. I had had trouble with the shuffle step.

And then we began the uphill. The sun had started to shine, and although the switchbacks afforded the occasional shade, our conversation consisted of panting and pointing. A waterfall here, a hawk there.

"Chestnut-fronted parrots," Ana said as our arrival sent them into squawking flight. "And these," Ana said, stopping by a powder of yellow petals on the trail, "are lady's slippers, ayaq zapatillas. The locals put them in coffins to walk the dead to the afterlife."

Six hours after leaving the camp of Chiquisca, we arrived at Marampata Hill. The twelve members of the Covarrubias family who owned that side of the valley had tapped into the glacial feed from above and carved out a small farm. Once again, we had a campsite to ourselves. From our private plateau, the Apurímac Valley opened up farther to the west and turned north, toward the jungle. We lunched on fresh cheese and guacamole from Covarrubias avocados and gazed hypnotized by fatigue and the view.

Carlos brought mate de coca and hot water for washing to our tent at six the next morning. It had rained during the night. But here, at ten thousand feet above sea level, we had a clear light for the big day at Choquequirao, the City of Gold. We left Felicitas, Carlos, and the mules to rest for the day. The path was level. And around the next bend, finally, Choquequirao.

We were still two hours away, but finally we had a sense of what we had hiked down and up a canyon to see. A puzzle, a mystery. Across the ravine and a thousand feet below us, a series of terraces, impossibly steep, had been excavated. Farther up the hill was another set of terraces, partially cleared but still with large clumps of trees. Far above the terraces, directly across from us, was the perfect helipad of the ushnu, "the sacred meeting place of Choquequirao," Ana said. And above that, joined by a neatly mown plaza on the ridge, was more of the site. At this distance, Choquequirao was a giant Sudoku with only a handful of numbers penciled in. In comparison, Machu Picchu is a fully filled color-by-numbers.

"People have known about Choquequirao for centuries," Ana told me. "There was a French explorer, the Count de Sartiges, in the 1800s. But before him there were Spaniards." And after. Some say the city was built during the reign of Pachacutec in the mid-1400s and became the last refuge of the Incas under the final ruler, Manco Inca, a hundred years later. Others say that pieces of pottery found at Choquequirao show that it was inhabited hundreds of years earlier. Each successive visit by anthropologists and archaeologists brings a new theory. And yet Choquequirao gave off a whiff of inscrutability as we came around the bend in the ravine.

"When I was a little girl," Isabel had told me down by the river, "I lived at Marampata and looked after the cows. But my uncles told me that Choquequirao was full of ghosts. 'Never go there,' they warned. Even when a cow wandered off into the ruins, we left her for the ghosts."

There was something ethereal about Choquequirao as we walked out of the trees and onto the paved terrace leading to the deserted city. City may be too grand a word for what has been uncovered so far. Choquequirao is compact in its emptiness. There are a couple of town squares and a handful of Incan stone buildings like the ones at Machu Picchu, with tapered doorways and intricate niches and hooks for hanging lamps or securing ropes for the roof thatching.

Ana pointed out a set of protruding beams at the level of the second floor. "Balconies," she said. "The Incas didn't know about balconies before the Spanish came. There are no balconies in the houses of Machu Picchu, only here." It's a small marvel, a modest discovery.

The latest find is one that hasn't yet made it into the books or blogs on Choquequirao. Four years ago, terraces were discovered on the far side of the mountain, the side away from our approach. On the walls of these terraces, in crude mosaics of white stone, are the figures of twenty-three llamas, some adult, some baby llamitas. Former first lady Eliane Karp has grandly taken some of the credit for this discovery. But as with everything else at Choquequirao, it's hard to know what to make of the llamas.
Puzzlement plus silence equals mystery. And silence is abundant at Choquequirao. During the eight hours we wandered through the ruins, lunched on the plaza, and explored the terraces and forests, we saw two groups of six people in addition to the guardian of the site, perched with a paperback on the heights of the sacred ushnu with an overview of anyone entering. That was all.

From the ushnu, I could look back at the path we had taken—two days to walk down one side of the canyon and up the other. I had become used to thinking of time as airplane time: one hour to get to the airport; check in two hours before departure; ten hours from New York to Lima. But here in front of me were two days, laid out in the zigzags of a rocky trail, the thread of a distant river, the tightness of a hamstring. There was a physicality to time that I never felt on a plane to Cuzco or a train to Machu Picchu.

In the tranquility of that late afternoon on the ushnu, I made the most precious discovery of time as I listened to Rebecca talk with wisdom about Mariluz and Rodrigo, Vilma and Ignacio, the children of Urubamba. She might not have become a pacu like Nazario. But the days spent walking the trails of the apu of Choquequirao had opened my ears to how my daughter had become an intermediary between two worlds.

At five o'clock, the sun set at the far end of the valley, and we began the two-hour hike back to Marampata. As the darkness fell, Rebecca and Ana strapped tiny miner's lamps to their foreheads. I followed their dim beams and voices as closely as I could, wondering how the Incas six hundred years ago, how Hiram Bingham a hundred years ago, how Nazario had felt out this trail, clinging to the protection of the mountain, moving forward without slipping into the Apurímac a mile below. I felt stupid not to have brought a lamp—as stupid, perhaps, as that bus driver the moment before he hit the rock that sent him and Nazario to their death.

Suddenly the path opened up in front of me, bright as dusk. I found Rebecca and Ana standing in wonder, their lamps extinguished. The earth had breathed a thousand fireflies to light our way home.

"I could keep walking like this another week," Rebecca said, taking my arm, "all the way to Machu Picchu." The apu of Choquequirao, or the spirits of Nazario and Hiram Bingham, had brought me gold.

PERU: PLACES & PRICES

The best way to explore the Choquequirao ruins is to fly into Cuzco and then drive to the town of Urubamba (9,400 feet above sea level), in the Sacred Valley. In Cuzco, a handful of tour operators can arrange trips to Choquequirao. Roger Valencia of Auqui Tours has a reputation for quality customized trips to all the famous sites in the Sacred Valley—Machu Picchu, Ausangate—and into the rain forest as well as to other parts of Peru. A five-day hike to Choquequirao includes tents, cots, three-course dinners with wine, and transportation to and from Cuzco or Urubamba (84-261517; auqui.com; five-day hike, $800 per person with a four-person minimum).

Travelers who don't mind carrying their own equipment can take a public bus from Cuzco to Saihuite, where they can hire a taxi or walk the 40 minutes to Cachora, the head of the trail. Farmers host the campsites (a donation is expected), and mules can be rented from concessionaires. Dario Cunza and his wife have a dozen horses and mules for hire at the Hospedaje San Pedro ($10 per day).

High-altitude hiking is best done with a hat, sunscreen, and insect spray. A sturdy rubber-tipped walking pole will save wear and tear on your knees.

The country code for Peru is 51. Prices quoted are for March 2009.

Lodging and Dining

The 30-room Hotel Sol y Luna, in Urubamba, is the luxury choice, with everything from massages to horseback rides to special pachamanca feasts (84-201-620; bungalows, $200). The Sonesta Posadas del Inca, in Yucay, has 84 rooms, a colonial chapel, and even a ghost (84-20-1107; doubles, $160). Part of the Libertador chain and with a private train to Machu Picchu, the Tambo del Inka Luxury Collection Hotel is scheduled to open later this year in Urubamba.

The road from Cuzco to Cachora passes through plenty of small towns, all of which have at least one shop where you can stock up on provisions, including (if you're lucky) the pita-shaped local bread. Campsites along the trail itself also have shops that may sell fruit, bottled beverages, and packets of instant noodles. Fresh water is abundant, but it pays to ask the locals where the stray horses are grazing—and to avoid those streams.

Reading

Hiram Bingham's Lost City of the Incas is a classic that, like the best non-fiction, is only partially true (Phoenix Press, $13). Joseph Conrad's Nostromo (Everyman's, $20) and the photographs of the mid-20th-century Cuzqueñan Martín Chambi ( martinchambi.com) are still my favorite introduction to the complex culture of highlands Peru.

Pasos para una negociación exitosa, según William Ury

2009-10-02T18:45:00.000-07:00

Pasos para una negociación exitosa, según William Ury
Durante el World Negotiation Forum Argentina, William Ury nos propuso una clase magistral de negociación, donde nos explicó sobre como siempre tenemos que encontrar el BATNA de cada problema, acrónimo de “Best Alternative To a Negotiated Agreement” o “Mejor Alternativa a un Acuerdo Negociado”, y el corazón de su estrategia de negociación se basa en algunos pasos imprescindibles y muy claros para una negociación exitosa.

Salga al balcón
En el medio de una negociación hay que tener la capacidad para distanciarse un poco del tema en cuestión y pensar. Algunos sólo meditan en un parque o plaza, otros consultan con expertos, algunos usan el tetris para balconear, otros fuman y hay otros charlan con sus esposas. Lo importante es salirse del medio y poner tener una visión de mayor espectro para entender cuál es la situación y por que motivos estamos inmersos en esos problemas, para así encontrar una solución mejor y más rápido.
Póngase del lado del contrario
Es la idea de hacer exactamente lo contrario a lo que el otro espera de nosotros en ese momento. Así logramos romper el esquema mental de la contraparte para entender de que van sus problemas. Lo mejor sucede cuando invitamos al otro a ponerse en nuestro lugar, si el otro negociador es hábil, lo hará, y juntos se encontrará el mejor BATNA posible.
Usar criterios objetivos para decidir lo justo
Debe haber equidad en la negociación, objetividad mutua
Identificar los intereses detrás de las posiciones de las personas
Hay que preguntar: ¿Por qué el otro quiere esto?, ¿para qué quiero yo esto?, ¿y por qué no? Diciéndole al otro algo poco habitual: “Ayúdeme a entender sus necesidades” y “Ayúdeme a ayudarlo“. No hay que rechazar propuestas, hay que redireccionarlas, lograr que el otro diga lo que nosotros queremos que diga.
Encontrar siempre las opciones de ganancias mutuas
Creatividad en la negociación, que más puedo agregar? si todo se puede…
Conozca su BATNA (vitál para cualquier negociación!)
El poder de la negociación está influenciado por lo que cada parte considera su “BATNA” (Best Alternative To a Negotiated Agreement/ Mejor Alternativa a un Acuerdo Negociado). Es decir, el mejor curso de acción a tomar, si no logra ponerse de acuerdo. O dicho en una pregunta: ¿Qué hacer si fracasa la negociación? También es importante delimitar lo mínimo que aceptarías.
Construya un puente dorado
Sobre un desfiladero lleno de inseguridades trate de entender las necesidades del otro y que sea atractivo para su empresa y sus posibles decir que sí.

Cómo promocionarse a sí mismo cuando su trabajo peligra

2009-08-22T23:18:00.000-07:00

DAISY WADEMAN DOWLING
Cómo promocionarse a sí mismo cuando su trabajo peligra
Lunes 3 de Agosto de 2009, 10:54:38 I Recesión. Manejo personal. Planificar su carrera.

¿Teme que lo despidan? ¿Conoce a alguien que no?
Nadie, salvo los abogados que se especializan en quiebras, puede sentirse seguro en su trabajo en medio de la actual crisis económica. Pero revisar constantemente el precio de las acciones de su empresa no cambiará nada. Tampoco cambiará nada escuchar los rumores de oficina y andar buscando información sobre los supuestos despidos y las indemnizaciones. Es natural sentir ansiedad pero esas conductas no lo protegerán de lo que realmente esté a punto de ocurrir. La pregunta que cabe hacerse ahora no es "¿Corre usted un riesgo?” sino "¿Qué hará al respecto?"

El reciente artículo en Harvard Business Review "Proteja su empleo durante una recesión" ofrece varios consejos a los ejecutivos que enfrentan la posible pérdida de sus cargos: mantener una actitud alegre; ser flexible; ser un buen ciudadano corporativo.

He aquí otro consejo más. Hay una expresión que dice "cada trabajo es una venta", y eso es exactamente lo que usted debe hacer ahora: venderse.

En mi trabajo haciendo coaching a las estrellas ascendientes, me he percatado que este tipo de persona suele pertenecer a una de dos categorías:

Las que dejan que su buen trabajo hable por ellas

Las que comunican su valor a sus jefes, sus pares y a sus subordinados, y además, al resto del mundo.

Cuando se trata de compensaciones y ascensos, el segundo grupo suele lograr mejores resultados. Y cuando la tendencia del mercado es a la baja, son éstas las personas que suelen sobrevivir.

No me malinterprete, no estoy proponiendo que usted se jacte, ni tampoco estoy diciendo que haya algún substituto para el buen desempeño. Lo que estoy ofreciendo son métodos específicos y concretos para que usted se auto promocione, de manera delicada y con integridad; le muestro cómo presentarse como una persona que la organización debe mantener. En estos tiempos, usted no se puede dar el lujo de no hacerlo. He aquí lo que debe hacer:

Envíe un e-mail a su jefe alabando el trabajo de un joven empleado en un reciente proyecto. Esto lo hará verse como un buen miembro de un equipo, y también como un jefe considerado, y al mismo tiempo hará que se fijen en el éxito de su grupo. Además, es bueno hacerlo para su subordinado.

Pida a su jefe feedback respecto de sus prioridades (en lugar de respecto de su desempeño).Haga una lista de sus proyectos y metas clave para los próximos seis meses y revísenla juntos. El mensaje que recibirá su jefe: Soy considerado y soy orientado hacia la acción.

Encuentre un momento para enseñar. Contar chismes con sus pares respecto de la crisis subprime no es una muestra de liderazgo. Pero tomar la iniciativa de reunir en una sala de conferencia a los empleados recién graduados y contratados por su división para explicarles exactamente qué significa la "crisis subprime" sí lo demuestra.

Llegue temprano. No trabaje jornadas más largas, pero sí llegue más temprano. Las personas en altos cargos suelen comenzar su día temprano, y se darán cuenta si usted está ahí. Recuerde, usted no sabe quién está tomando las decisiones acerca de los nombres que aparecerán en la lista tan temida

Law Soc advice: Don't study law | Features | The Lawyer

2009-08-13T06:57:00.001-07:00

Law Soc advice: Don't study law | Features | The Lawyer

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Endangered Site: Chan Chan, Peru

2009-07-26T00:31:00.000-07:00

About 600 years ago, this city on the Pacific coast was the largest city in the Americas
By Bruce Hathaway
Smithsonian magazine, March 2009
Once the capital of an empire, Chan Chan was the largest adobe city on earth.
Courtesy of Flickr user Michel Gutierrez
During its heyday, about 600 years ago, Chan Chan, in northern Peru, was the largest city in the Americas and the largest adobe city on earth. Ten thousand structures, some with walls 30 feet high, were woven amid a maze of passageways and streets. Palaces and temples were decorated with elaborate friezes, some of which were hundreds of feet long. Chan Chan was fabulously wealthy, although it perennially lacked one precious resource: water. Today, however, Chan Chan is threatened by too much water, as torrential rains gradually wash away the nine-square-mile ancient city.

Located near the Pacific coast city of Trujillo, Chan Chan was the capital of the Chimú civilization, which lasted from A.D. 850 to around 1470. The adobe metropolis was the seat of power for an empire that stretched 600 miles from just south of Ecuador down to central Peru. By the 15th century, as many as 60,000 people lived in Chan Chan—mostly workers who served an all-powerful monarch, and privileged classes of highly skilled craftsmen and priests. The Chimú followed a strict hierarchy based on a belief that all men were not created equal. According to Chimú myth, the sun populated the world by creating three eggs: gold for the ruling elite, silver for their wives and copper for everybody else.

The city was established in one of the world's bleakest coastal deserts, where the average annual rainfall was less than a tenth of an inch. Still, Chan Chan's fields and gardens flourished, thanks to a sophisticated network of irrigation canals and wells. When a drought, coupled with movements in the earth's crust, apparently caused the underground water table to drop sometime around the year 1000, Chimú rulers devised a bold plan to divert water through a canal from the Chicama River 50 miles to the north.

The Chimú civilization was the "first true engineering society in the New World," says hydraulic engineer Charles Ortloff, who is based in the anthropology department of the University of Chicago. He points out that Chimú engineering methods were unknown in Europe and North America until the late 19th century. Although the Chimú had no written language for recording measurements or drafting detailed blueprints, they were somehow able to carefully survey and build their massive canal through difficult foothill terrain between two valleys. Ortloff believes the canal builders must have been thwarted by the shifting earth. Around 1300, they apparently gave up on the project altogether.

While erratic water supplies created myriad challenges for agriculture, the Chimú could always count on the bounty of the sea. The Humboldt Current off Peru pushes nutrient-rich water up to the ocean's surface and gives rise to one of the world's richest marine biomasses, says Joanne Pillsbury, director of pre-Columbian studies at Washington, D.C.'s Dumbarton Oaks, a research institute of Harvard University. "The Chimú saw food as the tangible love their gods gave them," Ortloff says. Indeed, the most common images on Chan Chan's friezes are a cornucopia of fish, crustaceans and mollusks, with flocks of seabirds soaring overhead.

Chan Chan's days of glory came to an end around 1470, when the Inca conquered the city, broke up the Chimú Empire and brought many of Chan Chan's craftsmen to their own capital, Cuzco, 600 miles to the southeast. By the time Spanish conquistador Francisco Pizarro arrived around 1532, the city had been largely abandoned, though reports from the expedition described walls and other architectural features adorned with precious metals. (One of the conqueror's kinsmen, Pedro Pizarro, found a doorway covered in silver that might well have been worth more than $2 million today.) Chan Chan was pillaged as the Spaniards formed mining companies to extract every trace of gold and silver from the city.

Chan Chan was left to the mercy of the weather. "The Chimú were a highly organized civilization" and any water damage to the adobe-brick structures of Chan Chan "could be repaired immediately," says Claudia Riess, a German native who now works as a guide to archaeological sites in northern Peru. Most of the damage to Chan Chan during the Chimú reign was caused by El Niño storms, which occurred every 25 to 50 years.

Now they occur more frequently. Riess believes that climate change is a primary cause of the increasing rainfall—and she's not alone. A 2007 report published by Unesco describes the erosion of Chan Chan as "rapid and seemingly unstoppable" and concludes "global warming is likely to lead to greater extremes of drying and heavy rainfall." Peru's National Institute of Culture is supporting efforts to preserve the site. Tentlike protective structures are being erected in various parts of the city. Some friezes are being hardened with a solution of distilled water and cactus juice, while others have been photographed, then covered to protect them. Panels with pictures of the friezes allow visitors to see what the covered artwork looks like.

Riess believes the best solution for Chan Chan would be a roof that stretches over the entire area and a fence to surround the city. But she acknowledges that both are impractical, given the ancient capital's sheer size. Meanwhile, the rains continue, and Chan Chan slowly dissolves from brick into mud.

--------------------------------------------------------------------------------

Additional Sources
Reading Art without Writing: Interpreting Chimú Architectural Sculpture, by Joanne Pillsbury, Dialogues in Art History, edited by Elizabeth Cropper, National Gallery of Art (Washington, D.C.), 2009

Water Engineering in the Ancient World: Archaeological and Climate Perspectives on Societies of South America, the Middle East and South East Asia, by Charles R. Ortloff, Oxford University Press, August 2009

During its heyday, about 600 years ago, Chan Chan, in northern Peru, was the largest city in the Americas and the largest adobe city on earth. Ten thousand structures, some with walls 30 feet high, were woven amid a maze of passageways and streets. Palaces and temples were decorated with elaborate friezes, some of which were hundreds of feet long. Chan Chan was fabulously wealthy, although it perennially lacked one precious resource: water. Today, however, Chan Chan is threatened by too much water, as torrential rains gradually wash away the nine-square-mile ancient city.

Located near the Pacific coast city of Trujillo, Chan Chan was the capital of the Chimú civilization, which lasted from A.D. 850 to around 1470. The adobe metropolis was the seat of power for an empire that stretched 600 miles from just south of Ecuador down to central Peru. By the 15th century, as many as 60,000 people lived in Chan Chan—mostly workers who served an all-powerful monarch, and privileged classes of highly skilled craftsmen and priests. The Chimú followed a strict hierarchy based on a belief that all men were not created equal. According to Chimú myth, the sun populated the world by creating three eggs: gold for the ruling elite, silver for their wives and copper for everybody else.

The city was established in one of the world's bleakest coastal deserts, where the average annual rainfall was less than a tenth of an inch. Still, Chan Chan's fields and gardens flourished, thanks to a sophisticated network of irrigation canals and wells. When a drought, coupled with movements in the earth's crust, apparently caused the underground water table to drop sometime around the year 1000, Chimú rulers devised a bold plan to divert water through a canal from the Chicama River 50 miles to the north.

The Chimú civilization was the "first true engineering society in the New World," says hydraulic engineer Charles Ortloff, who is based in the anthropology department of the University of Chicago. He points out that Chimú engineering methods were unknown in Europe and North America until the late 19th century. Although the Chimú had no written language for recording measurements or drafting detailed blueprints, they were somehow able to carefully survey and build their massive canal through difficult foothill terrain between two valleys. Ortloff believes the canal builders must have been thwarted by the shifting earth. Around 1300, they apparently gave up on the project altogether.

While erratic water supplies created myriad challenges for agriculture, the Chimú could always count on the bounty of the sea. The Humboldt Current off Peru pushes nutrient-rich water up to the ocean's surface and gives rise to one of the world's richest marine biomasses, says Joanne Pillsbury, director of pre-Columbian studies at Washington, D.C.'s Dumbarton Oaks, a research institute of Harvard University. "The Chimú saw food as the tangible love their gods gave them," Ortloff says. Indeed, the most common images on Chan Chan's friezes are a cornucopia of fish, crustaceans and mollusks, with flocks of seabirds soaring overhead.

Chan Chan's days of glory came to an end around 1470, when the Inca conquered the city, broke up the Chimú Empire and brought many of Chan Chan's craftsmen to their own capital, Cuzco, 600 miles to the southeast. By the time Spanish conquistador Francisco Pizarro arrived around 1532, the city had been largely abandoned, though reports from the expedition described walls and other architectural features adorned with precious metals. (One of the conqueror's kinsmen, Pedro Pizarro, found a doorway covered in silver that might well have been worth more than $2 million today.) Chan Chan was pillaged as the Spaniards formed mining companies to extract every trace of gold and silver from the city.

Chan Chan was left to the mercy of the weather. "The Chimú were a highly organized civilization" and any water damage to the adobe-brick structures of Chan Chan "could be repaired immediately," says Claudia Riess, a German native who now works as a guide to archaeological sites in northern Peru. Most of the damage to Chan Chan during the Chimú reign was caused by El Niño storms, which occurred every 25 to 50 years.

Now they occur more frequently. Riess believes that climate change is a primary cause of the increasing rainfall—and she's not alone. A 2007 report published by Unesco describes the erosion of Chan Chan as "rapid and seemingly unstoppable" and concludes "global warming is likely to lead to greater extremes of drying and heavy rainfall." Peru's National Institute of Culture is supporting efforts to preserve the site. Tentlike protective structures are being erected in various parts of the city. Some friezes are being hardened with a solution of distilled water and cactus juice, while others have been photographed, then covered to protect them. Panels with pictures of the friezes allow visitors to see what the covered artwork looks like.

Riess believes the best solution for Chan Chan would be a roof that stretches over the entire area and a fence to surround the city. But she acknowledges that both are impractical, given the ancient capital's sheer size. Meanwhile, the rains continue, and Chan Chan slowly dissolves from brick into mud.

Comments.
Peru has many locations throughout its territory of great historical significance, ancient Peruvians buildings that are a challenge to the imagination as the Nazca Lines, the city of Macchu Picchu, the city of Caral, natural wonders such as the Callejón de Huaylas, the Colca Canyon, Manu jungle, etc.. Never regret having visited Peru. People are very hospitable. The remaining investments are in tourism to make the stay more comfortable, but the darling of Peruvians offset the discomfort of the journey.
http://alonsosarmiento.googlepages.com

In Peru Sports, Men Bumble, And Women Shine

2009-07-25T23:51:00.000-07:00

In Peru Sports, Men Bumble, And Women Shine

The Gates Case: When Disorderly Conduct is a Cop\'s Judgment Call

2009-07-25T23:31:00.000-07:00

The Gates Case: When Disorderly Conduct is a Cop\'s Judgment Call

Alonso Samiento

2009-07-21T20:45:00.000-07:00

How To Fix Executive Pay

2009-07-02T19:30:00.000-07:00

Whom to Pay is More Important than How Much or How
1:20 PM Thursday July 2, 2009
by Claudio Fernández-Aráoz

Tags:Boards, Compensation, Human resources, Job search, Leadership transitions

Having read every posting and response so far in the debate, I see that everyone has naturally focused either on the moral and practical appropriateness of how much to pay, or on practical suggestions on how to pay. That is all very good when it comes to avoiding scandals and abuses, and will to some extent improve performance and value creation.

But the real aim should be not just to avoid public frustration and excess, but to aim for a much more ambitious objective -- to ensure that CEOs and other leaders make the greatest potential contribution towards building lasting greatness. Whom you pay is much more important than how much you pay, and even how you pay.

I base this assertion on more than 20 years of global executive search experience, as well as current research on motivation based on neuroscience, and the best research I've seen regarding the impact of compensation systems not just to avoid mistakes or promote performance but for achieving outstanding levels of lasting greatness.

The first point to remember is that people are very different when it comes to how they perform in complex jobs. Research shows that the difference in performance grows exponentially with the complexity of the job. While a star blue collar worker on a traditional assembly line would be 40% more productive than a typical worker, that performance advantage can be 240% for a star insurance salesman, and more than 1,000 % for star workers in more complex jobs such as a computer programmer or an account manager of a professional service firm. Thus CEOs performance, given the complexity of the job, will have a huge spread. Therefore, the key debate should not be about how much and how to pay to the CEO, but rather about how to make sure that the best CEO is in place, and boards should focus much more, and much better, on that question.

Second, it is important to understand the basics of motivation. The stronger source of motivation is internal and not external, though external incentives can help as long as they are applied to the right people and properly aligned with internal motivators. However, external motivators are tricky. Recent research from neuroscience has demonstrated that our brain has an altruism center which is separate and quite distinct from the center aroused by financial incentives. Financial incentives trigger one of the most primitive parts of the brain, the nucleus accumbens, which has traditionally been associated with our "wild side." Scientists call this region the "pleasure center" because it is linked with the "high" that results from drugs, sex, and gambling. Furthermore, research shows that the pleasure center and the altruism center cannot both function at the same time: One or the other is in control. Finally, it turns out that when the pleasure and altruism centers go head to head, the pleasure center seems to be able to hijack the altruism center. In other words, there is a neurophysiological reason why exaggerated financial incentives can override our altruistic motives. For this reason, companies should make sure that financial incentives are not exaggerated and are in any case properly aligned with the desirable objectives of building lasting greatness.

Third, as mentioned, research seems to show that the impact of compensation systems (going beyond the obvious basic conditions) for achieving outstanding levels of lasting greatness appears to be quite limited. As I highlight in my book on great people decisions, when Jim Collins was asked how important executive compensation and incentive decisions are for building a great company he concluded, after 112 analyses, that his research could find no pattern. In other words, executive compensation appears to play no significant role in determining which companies become great. His conclusion strongly reinforces the argument that decisions about whom to pay in the first place are much more important than how much or how.

Still, companies need to pay reasonably well in order to attract and retain the right people in the first place. However, the purpose of compensation in my view and Jim's research is not to "motivate" the right behaviors from the wrong people. Compensation should be reasonable because it is part of human nature to expect fair treatment when it comes to compensation, which should be somehow proportional to our efforts and/or results. This sense of a fair deal seems to be genetically anchored. Even primates respond with aggression or anger when they feel unfairly treated. This has been revealed by some fascinating research with capuchin monkeys. In their experiments the primatologists created a market in which monkeys were trained to give them a pebble in exchange for food. While 95% of the monkeys participated in that market initially, when relative rewards became unfair only 20% of the monkeys continued to trade... and some got so frustrated they simply tossed away their pebbles!

Dear Mr.
A widespread misconception in the business is giving wrong signals to people about the system of compensation or remuneration for work performed. It is common in my country to pay more to the employee who has better marketed and left behind to those that can not display their virtues that are even higher than the first. This creates a huge business wear and a loss of opportunities to exploit the hidden talents of employees. Companies should promote equal opportunities for all employees to show their abilities to work and not only boasts of effectiveness.

- Posted by Alonso Sarmiento
July 2, 2009 10:28 PM

Dozens Killed in Amazon Land Protest

2009-06-13T12:38:00.000-07:00

Dozens Killed in Amazon Land Protest

Get Some Perspective on Swine Flu

2009-05-05T22:27:00.000-07:00

Panic seems to be spreading faster than the H1N1 (swine) flu. Egypt proposed killing all of the pigs in the country. China is quarantining Mexican nationals without any sign that they might be sick. The Vice President warned against traveling in confined spaces, like the subway. Frightened fliers kicked a man off a United Airlines flight because he had a cold. (United, at least, rebooked and upgraded the poor guy with the sniffles.) Even in my office there’s been debate over the effectiveness of various types of faces masks.

But when you start looking at the numbers of confirmed swine flu cases, it just doesn’t look that bad:

As of this morning, 1124 people worldwide have been diagnosed with swine flu, and 26 people have died. Out of a population of 6.7 billion.

Think it’s worse if you look only at the United States? Think again. 286 people diagnosed and 1 death in a population of 304 million.

What about Mexico, where this may have begun? 590 people diagnosed and 25 deaths. Population: 110 million.

For comparison, let’s try looking at the annual number of deaths by various causes in the United States, courtesy of the CDC*.

Cardiovascular disease: 856,030
Lung cancer: 159,292
Influenza and pneumonia: 63,001
Motor vehicle accidents: 45,343
Breast cancer: 41,491
Homicide: 18,124
Asthma: 3,884
Peptic ulcer: 3,478
Malnutrition: 3,003
Hodgkin’s disease: 1,272
Pregnancy and childbirth: 760
Meningitis: 669
Tuberculosis: 648
Whooping cough: 31

I don’t mean to imply that the swine flu couldn’t turn into something really bad. But right now the situation appears to be mild, with the CDC and the WHO and other health authorities having things under control. (Isn’t that why we hire these people?) Does it make sense to avoid public spaces or lock yourself in your home? Do we quarantine everyone who is sniffling through allergy season? Swine flu might not go away for a while, but if you start worrying now, you might give yourself an ulcer or a heart attack, and those are far more deadly than swine flu at the moment.

Instead, take sensible precautions, such as washing your hands, covering your coughs and sneezes with a tissue, avoid touching your mouth, nose and eyes and staying home if you’re sick. Of course you should pay attention to what is going on in your neighborhood and act accordingly. But like I said last week: Don’t panic.

*Note: This data, from 2005, was published in the National Vital Statistics Report, April 24, 2008. Numbers come from Table 10, All Ages.

1 Comment »
Dear Sir.
It is terrible to be sick, but the worst it is the fear of not to have a cure, whether for economic reasons or for medical reasons. When we listen that the virus is new and there is no vaccine or antiviral drugs sufficient to cure if the disease spreads, then is when panics installs. It is much better to take extreme measures, to avoid that a problem of sanity become a problem of national stability.

Comment by Alonso Sarmiento — May 6, 2009 @ 1:15 am

Slumdogs vs. Millionaires

2009-03-23T20:48:00.000-07:00

Although it's hard to believe, Wall Street's Gucci-wearing financiers actually have quite a bit in common with slum dwellers in Kenya and Mumbai at the moment—they're both mired in shadow economies, where basic facts like who owns what are nearly impossible to determine. That murkiness, says Peruvian economist Hernando de Soto, is the source of the continuing credit crunch gripping New York, London and other financial capitals, and a basic fact of life for much of the developing world. (Read de Soto's article on the subject here. De Soto, who now runs the Institute for Liberty and Democracy, a global think tank, spoke with NEWSWEEK's Barrett Sheridan from his office in Lima. Excerpts:

NEWSWEEK: Your bestseller, "The Mystery of Capital," tackles the idea of property rights and their impact on economic development.
Hernando de Soto: What makes a market economy possible is that people are able to find out facts about each other and about their enterprises in spite of the fact that they don't have direct physical contact. So the question is, how do you get to know things? How do you get facts? You will find out that most of the facts you want are in property papers. One of the things that developing countries miss is that close to 80 percent of their enterprises are actually not fully recorded as property.

And the simplest way in which this idea takes shape is that a lot of poor people in the developing world don't have deeds to their houses.
They don't have recorded deeds. They may actually have a deed, but it's not in the knowledge system, therefore you can't read about it.

So this knowledge of who owns what is not standardized.
It's not standardized and it's not distributed. I may have a manuscript here that actually says—from the King of Spain—that ever since the Spaniards landed in Peru, I own this land. But you may not know about it unless I record it.

Why does ownership matter so much?
Ownership means that I have something to lose. If you're a banker, it means that you've got collateral. It also means that I'm credible, so you can give me credit. When you think about it, whether it's ownership, whether it's credit, whether it's capital, whether it's identification, none of the things that make a modern economy are possible without property.

How does this relate to the financial crisis?
The enormous amount of derivatives that had poured into the market—there are close to $600 trillion of these papers around—are also not recorded in a global or centralized manner, or in a manner that allows you to begin to quantify them. [Former SEC Chairman Christopher] Cox thought that maybe the toxic part of all of these assets was $1 trillion to $2 trillion. [Treasury Secretary Timothy] Geithner told us there's maybe $3 trillion or $4 trillion. Nobody really knows, so in a way [they've created an] informal or shadow economy. This unidentified paper is the source of uncertainty and the credit contraction.

So they're unidentified in the same way that ownership of, say, a slum in Peru or Africa is unidentified.
That's right. We have worked in places like Tanzania and Egypt and Ethiopia. When you go visit a home there you don't find justification for it through the books. In other words, it's not centrally available information. When you talk about shadow economies in many places, it's not only the economy of gangsters. It's also economies that are legal in every respect except for the fact that the paper, which backs up the ownership or the evidence that something exists, is not easily and publicly available. That creates the shadow.

Has the subprime mortgage market become a shadow economy?
Subprime mortgages are not a shadow economy. But what happened is that a lot of these mortgages got repackaged into securities. Then they became collateralized debt obligations and some of these mortgages were sliced and diced and put into tranches. When some of these mortgages went sour and people started defaulting on their payments, then of course a lot of the securities tied to them also started defaulting. But when you try and trace who's ultimately responsible for the value of that paper, you couldn't find it. That's the part of the market that has become the shadow.

So basically ill-defined property rights in the subprime mortgage sector caused a meltdown. Does the same happen in the developing world?
Yes. That shadow hopefully is a temporary condition in the United States and in Western Europe. And it might pass in a year or 10 years, but it will pass. That passing condition that's occurring now in developed countries, that's a chronic condition in developing countries. We're always chronically in credit crunches—because you don't know who owns what, nobody dares lend to somebody else. Bringing the law to emerging markets is possibly the most important measure that can be taken to help these countries become rich. Look at the Iranians, look at the North Koreans—they're building nuclear plants. Look at the computer—they're being built in northern India. The issue isn't the expansion of technology. We can all get it, borrow it, buy it or steal it. The issue is how do you get a legal system that allows people to cooperate so as to create more complex systems and objects.

So at this point, a Wall Street banker in a $10,000 suit is encountering basically the same problem that Nairobi slum dwellers have had to deal with for decades or more.
Absolutely. The difference, however, is that in Nairobi they are still struggling to understand that a property system is the best way that they can do things. In the United States, every piece of land, every house, every automobile, every airplane, every manuscript for a film, every patent is written up and recorded and described. There's only one thing in the United States which is not recorded in such a way and that's derivatives. We're only talking about 7 percent of the subprime market being in default, yet it is causing a major contraction in your economy. You're not getting your credit flowing because you don't know what is where and who it belongs to.

What's the answer? How do we assign "property rights" to derivatives?
The banks and the holders of all of these instruments have got to report them in such a way that your government and the public knows who owns what and where. Once the light shines, you will know who's solvent, who's insolvent. You'll be able to have a clean debate as to who to help and who not to help. And you're going to have a much better idea of the consequences of not helping or helping. Right now you're talking about all of those issues, but you still don't have the facts. So the first thing is to have the law require those people who own these things to fess up.

It sounds so simple when you put it like that, but I guess there are special interests blocking that from happening.
I am convinced that there are special interests. Creating property rights in the United States [was much easier to do], because a lot of the land, the assets, the woods and the rural areas actually belonged to nobody, or they belonged to indigenous people or Mexicans. But in Britain, those who owned property were able to resist registration throughout part of the 19th century. They even argued that public knowledge of who owned what could eventually lead to kidnappers or things of that kind. And they managed to avoid the light being shined [up until 1925]. The fact is that a market economy works on information. If you don't have the facts, you don't have a market and you can't have justice.

Have we in the West forgotten that?
Einstein was credited with having said, "What does the fish know about the water in which it swims?" You've got to be a human being and look at it from the outside—then you'll understand why the fish lives where it lives. So I think what's happened is that Westerners got property [rights] very early on, about 200 years ago if you're American, and you've grown accustomed to it. You're the fish in the water.

© 2009
Member Comments
Report Abuse Reply Posted By: lawyerinperu @ 03/23/2009 11:34:43 PMDear Sir.
My compatriot Hernando de Soto is right much like my countrywoman Mrs Carmen Rhor that comments the note; nevertheless I would add that all this is the old history of the powerful ones that privatizes the gains but they socialize the losses. In the measurement that advance in the democratization of the society where all are really equal before the Law and where each individual can obtain its place under the sun, even though with economic differences; it will be possible to be developing one more a happier society.
Alonso Sarmiento
http://alonsosarmiento.googlepages.com

Aquaculture May Replace Wild Fish Stocks

2009-03-14T23:30:00.000-07:00

A new report from the United Nations notes that farmed fish are beginning to make up for the decline in wild catches
By Nathanial Gronewold

UNITED NATIONS — The U.N. Food and Agriculture Organization (FAO) released its latest report on global fisheries and aquaculture with no new 2008 catch and production figures, as the agency continues to piece together 2007 data.

Nevertheless, FAO is sounding an alarm on gradual declines in wild catch fishing production and depletion of stocks, while being careful to note that growth in the global aquaculture industry is largely making up the difference and seems poised to overtake capture fishing as the world's leading source of seafood.

Efforts to reduce the overcapacity in fishing fleets, fed by generous subsidies from European and Asian nations, have failed, and progress toward reversing the depletion of the ocean's resources is too slow, the agency warns.

FAO is also warning governments to do more to understand the likely effects of climate change on fishing and how best to adapt to the challenge.

The most recent data suggest that the vast majority of the world's wild fish stocks either are being overexploited or have reached their maximum productive capacity as fishing fleets have expanded and moved into previously untapped regions of the seas. Twenty percent of fish stocks have room to grow, according to the latest available data.

"Overall, 80 percent of the world fish stocks for which assessment information is available are reported as fully exploited or overexploited and, thus, requiring effective and precautionary management," FAO says in its report.

The northeast Atlantic Ocean is among the regions suffering from the highest numbers of overexploited stocks, the report says. That area is home to a popular bluefin tuna fishery, where European fleets have been openly breaking their catch quotas for years.

The West Indian Ocean and Northwest Pacific fisheries also suffer from overfishing.

Trends in the data from 2005 to 2006 suggested that the condition of the world's wild fish stocks is worsening, and most observers widely expect 2007 and 2008 figures to show the same. But FAO officials in Rome say they are still in the process of simply gathering 2007 numbers and have yet to request catch figures for last year, a reflection of constraints on time and manpower at the fisheries and aquaculture department.

"You're talking about a huge amount of data," said FAO spokesman George Kourous. "Not all countries are in a position to report it in real time. Often, it gets reported in mixed formats or with different measures."

Still, China likely retains its top spot in wild-fish production, with 17 million metric tons during 2006. Peru and the United States round out the top three, at 7 million metric tons and 4.9 million metric tons, respectively. The northwest Pacific Ocean is the world's most productive fishery, supplying the world with 21.6 million metric tons in 2006.

Early 2007 data suggest worldwide production from capture fisheries, excluding China, had risen by at least 3 percent in 2007. Last year, China revised downward its 2006 catch figures by 2 million metric tons, citing enhanced data collection, throwing into doubt its 2007 reported catch numbers.

Anchoveta, Alaska pollock and skipjack tuna are the world's most heavily exploited wild fish species. Capture fisheries production has largely stayed the same over the past few years, rising and falling between 90 million to 94 million metric tons annually, hitting 92 million metric tons in 2006. Ebbs and flows in the catch numbers can largely be explained by the El Niño weather phenomenon, which has a strong effect on Peruvian anchoveta, Kourous explained.

But the world's three largest fisheries could now be feeling the effects of depletion due to overfishing. Last year, the National Oceanographic and Atmospheric Administration closed the Alaska pollock season early after alarms were raised over low catch numbers, sending prices for the fish spiking temporarily.

Aquaculture rising FAO figures show that aquaculture's share of the global fish industry continues to rise, with China leading the surge.

"After growing steadily, particularly in the last four decades, aquaculture is for the first time set to contribute half of the fish consumed by the human population worldwide," said Ichiro Nomura, assistant director general of FAO's fisheries and aquaculture department. "This reflects not only the vitality of the aquaculture sector but also global economic growth and continuing developments in fish processing and trade."

In 2006, China grew 34.4 million metric tons of fish on farms, far outstripping the 17 million metric tons that nation caught on the open ocean. China accounts for roughly 66 percent of the world's total aquaculture production in tonnage, and that country exported $9.3 billion worth in 2007.

Worldwide aquaculture has grown on average by about 6.9 percent annually in recent years. FAO estimates that the industry expanded by a further 7 percent in 2007, but 2008 production growth numbers could be affected by worsening economic conditions later that year. FAO had already earlier reported that growth in aquaculture in China appears to be leveling off.

Reprinted from Greenwire with permission from Environment & Energy Publishing, LLC. www.eenews.net, 202-628-6500

Comentario
Dear Sir.
In Peru, my country, there is the problem of the excess of warehouse, that is to say, an amount of fishing boats far beyond the possibilities of the biomass. Even though periods of prohibition in the fishing settle down, this comes causing the ruin from many artisan fishermen and the depredation of our sea blessed by the cold current of Humbolt.

Alonso Sarmiento

The Hard Cases

2009-02-20T21:22:00.000-08:00

Will Obama institute a new kind of preventive detention for terrorist suspects?by Jane Mayer
February 23, 2009
The last “enemy combatant” being detained in America is incarcerated at the U.S. Naval Consolidated Brig in Charleston, South Carolina—a tan, low-slung building situated amid acres of grassy swampland. The prisoner, known internally as EC#2, is an alleged Al Qaeda sleeper agent named Ali Saleh Kahlah al-Marri. He has been held in isolation in the brig for more than five years, although he has never stood trial or been convicted of any crime. Under rules established by the Bush Administration, suspected terrorists such as Marri were denied the legal protections traditionally afforded by the Constitution. Unless the Obama Administration overhauls the nation’s terrorism policies, Marri—who claims that he is innocent—will likely spend the rest of his life in prison.

On September 10, 2001, Marri, a citizen of Qatar, who is now forty-three, came to America with his family. He had a student visa, and his ostensible purpose was to study computer programming at a small university in Peoria, Illinois. That December, he was arrested as a material witness in an investigation of the September 11th attacks. However, when Marri was on the verge of standing trial, in June, 2003, President George W. Bush ordered the military to seize him and hold him indefinitely. The Bush Administration contended that America was in a full-fledged war against terrorists, and that the President could therefore invoke extraordinary executive powers to detain Marri until the end of hostilities, on the basis of still secret evidence. That day, Marri was put on a military jet to Charleston, and since then he has been living as the only prisoner in an eighty-bed high-security wing of the brig, with no visits from family, friends, or the media.

Jonathan Hafetz, a lawyer with the American Civil Liberties Union, who has taken the lead role in Marri’s legal defense, says that the Bush Administration’s decision to leave him in sustained isolation was akin to stranding him on a desert island. “It’s a Robinson Crusoe-like situation,” he told me. In 2005, Hafetz challenged the constitutionality of Marri’s imprisonment. A lower court affirmed the government’s right to detain him indefinitely. After several appeals, the case is scheduled to be heard by the Supreme Court in April. Hafetz calls the Marri case a pivotal test of “the most far-reaching use of detention powers” ever asserted by an American President.

The Court’s calendar requires the Obama Administration to file a reply to the challenge by March 23rd. Unless some kind of diversionary action is taken—such as sending Marri home to Qatar, or working out a plea agreement—the Court’s schedule will likely force the Obama Administration to offer quick answers to a host of complicated questions about its approach to fighting terrorism.

John Bellinger III, who served as the counsel to the State Department under President Bush, says of officials in the Obama Administration, “They will have to either put up or shut up. Do they maintain the Bush Administration position, and keep holding Marri as an enemy combatant? They have to come up with a legal theory.”

from the issuecartoon banke-mail thisAmong the issues to be decided, Hafetz says, is “the question of who is a soldier, and who is a civilian. Is the fight against terrorism war, or is it not war? How far does the battlefield extend? In the past, they treated Peoria as a battlefield. Can an American be arrested in his own home and jailed indefinitely, on the say-so of the President?” Hafetz wants the Supreme Court to rule that indefinite executive detention is illegal, and he hopes that Obama will withdraw Bush’s executive order labelling Marri an enemy combatant, and issue a new one classifying him as a civilian. This shift would allow Marri either to be charged with crimes or to be released.

The Obama Administration’s strategy in the Marri case will almost certainly establish legal principles that will have ramifications for future cases, as well as for the two hundred and forty or so similarly designated “unlawful enemy combatants” held in the military prison at Guantánamo Bay, Cuba. During the Bush years, the designation encompassed not just members of Al Qaeda and the Taliban but also anyone who associated with them, supported them, or supported organizations associated with them, even if unwittingly. In 2004, a Bush Administration lawyer told a judge that, in theory, an enemy combatant could even be “a little old lady in Switzerland” whose charitable donations had been channelled, without her awareness, to Al Qaeda front groups.

If the Marri case reaches the Supreme Court, it will test the limits of such theories. The case is therefore being closely watched by civil libertarians on both the left and the right. The Center for Constitutional Rights, a liberal advocacy organization, and the Cato and Rutherford Institutes, which lean to the right, are among the many legal groups that have signed eighteen amicus briefs on Marri’s behalf. Individual lawyers who have taken up his cause include Nicholas Katzenbach, the Attorney General in the Johnson Administration, and William Sessions, who was appointed director of the F.B.I. by President Reagan. The editorial page of the Times has written repeatedly about the case, demanding that the Fourth Circuit Court of Appeals’ affirmation of Marri’s military detention be reversed: “People accused of bad deeds should be tried in court—not in sham proceedings. They should be put in jail—not secret detention.”

No matter how Obama responds to the case, his decision is likely to arouse controversy. Hafetz says, “If President Obama is serious about restoring the rule of law in America, they can’t defend what’s been done to Marri. They would be completely buying into the Bush Administration’s war on terror.” This view is widely held by Obama’s political base. Yet the political risks of change are obvious. In 2004, Jeffrey Rapp, an analyst at the Defense Intelligence Agency, claimed in a sworn affidavit, without providing evidence, that Marri had met with Osama bin Laden in Afghanistan, and “offered to be an al Qaeda martyr.” The government’s theory is that Marri came to America in order to help carry out a second wave of terrorist attacks. “Al-Marri must be detained to prevent him from aiding al Qaeda in its efforts to attack the United States,” Rapp said in his statement, which is the sole public document offering reasons for holding him.

In early February, former Vice-President Dick Cheney increased the pressure on Obama, by warning that a catastrophic nuclear or biological terrorist attack on America would occur unless Obama kept the Bush policies in place. In an unusually contentious interview for an erstwhile high official, Cheney told Politico that the Obama Administration was “more concerned about reading the rights to an Al Qaeda terrorist than they are with protecting the United States.” Two days after Cheney’s remarks were published, the White House was visited by families of victims killed in the September 11th attacks and in the bombing of the U.S.S. Cole, in 2000. Some of those families have organized an advocacy group, Military Families United, which claims sixty thousand members, and which has circulated a petition demanding that Congress reject all efforts by the Obama Administration to relocate any detained terrorist suspects to its members’ districts.

Amid such competing viewpoints, a compromise idea has also emerged, which the Obama Administration is weighing. A number of national-security lawyers in both parties favor the creation of some new form of preventive detention. They do not believe that it is the President’s prerogative to lock “enemy combatants” up indefinitely, yet they fear that neither the criminal courts nor the military system is suited for the handling of transnational terrorists, whom they do not consider to be ordinary criminals or conventional soldiers. Instead, they suggest that Obama should work with Congress to write new laws, possibly creating a “national-security court,” which could order certain suspects to be held without a trial.

One proponent of this idea is Neal Katyal, whom Obama recently named to the powerful post of Principal Deputy Solicitor General, in the Justice Department. Katyal is best known for his victory as the lead counsel in Hamdan v. Rumsfeld (2006). In his first appearance before the Supreme Court, he persuaded a majority of the Justices to declare that the Guantánamo military-commission system was illegal, arguing that Congress had not authorized the commissions. Katyal’s new job is to represent the government before the Supreme Court. Given the sensitivity of this role, Katyal declined to comment for this story. But in October he posted an article on a Web site affiliated with Georgetown Law, in which he argued, “What is needed is a serious plan to prosecute everyone we can in regular courts, and a separate system to deal with the very small handful of cases in which patently dangerous people cannot be tried.” This new system, he wrote, would give the government the “ability to temporarily detain a dangerous individual,” including in situations where “a criminal trial has failed.” There are hundreds of legal variations that could be considered, he said. In 2007, Katyal published a related essay, co-written with Jack L. Goldsmith, a conservative Harvard Law School professor who served as the head of the Office of Legal Counsel in the Bush Justice Department. The essay argued that preventive detention, overseen by a congressionally authorized national-security court, was necessary to insure the “sensible” treatment of classified evidence, and to protect secret “sources and methods” of gathering intelligence. In his Web post, Katyal wrote, “I support such a security court.”

Such schemes have already stirred considerable controversy elsewhere in the world, including in Great Britain, where since 2005 some three dozen terror suspects have been detained for a time under house-arrest-like conditions, in some cases being required to wear ankle monitors, obey curfews, and refrain from using phones or the Internet. In America, such a compromise is sure to alarm many human-rights advocates and civil libertarians, who regard indefinite detention as antithetical to the American legal system’s most basic tenets. Alberto Mora, a Republican lawyer who, as general counsel of the Navy, broke with the Bush Administration after concluding that some of its brutal counterterrorism policies were potential war crimes, warns, “We simply can’t have indefinite detention. Due process and fundamental fairness make that clear.”

Marri himself is cautiously hopeful. Despite restrictions on his consumption of television and print news, he followed the Presidential campaign from inside the brig. According to Hafetz, “He’s happy about Obama, but worried he won’t be able to fulfill all the promises and expectations.” Through his lawyers, Marri, speaking publicly for the first time, said, “I am not asking to be taken at my word and to be released, although I very much want to go home to my family. All I am asking for is to be treated like every other person in the United States who is accused of a crime, including terrorism, and to be given a fair trial in an American court.”

As a candidate, Obama promised a sharp break with the Bush Administration’s counter terrorism policies. In a written statement for the Boston Globe, Obama, who taught constitutional law in the nineteen-nineties, said, “I reject the Bush Administration’s claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.” (In fact, the Bush Administration went beyond this claim, arguing that Congress had explicitly granted the President this authority, in a bill passed after the attacks.) In the Globe, Obama went on, “The detention of American citizens, without access to counsel, fair procedure, or pursuant to judicial authorization, as enemy combatants is unconstitutional.” In his Inaugural Address, Obama further underscored his differences with Bush in this area, saying, “As for our common defense, we reject as false the choice between our safety and our ideals.” A top legal adviser to Obama told me that the President also believes that legal residents in America, like Marri, are entitled to due process.

Former Bush Administration officials who were involved in its anti-terror program suggest that Obama may find it harder than expected to translate idealistic rhetoric into action. “Governing is different from campaigning,” says Bellinger, who predicts that Obama and his officials will soon discover that “they can’t just set the clocks back eight years, and try every terror suspect captured abroad in the federal courts.” Bellinger now says that the treatment of Marri was a “failed experiment.” John Ashcroft, who was Attorney General when Marri was designated an enemy combatant, makes no such apologies. Interviewed just before the Inauguration, he defended what he described as a “sound decision” to “maximize the national interest,” and predicted that, in the end, President Obama’s approach to handling terror suspects would closely mirror his own: “How will he be different? The main difference is going to be that he spells his name ‘O-b-a-m-a,’ not ‘B-u-s-h.’ ”

So far, the Obama Administration has declined to state a position on the Marri case. It’s already becoming apparent, though, that Ashcroft was mistaken in his broader point. Obama, in his first week in office, issued three executive orders, undoing many of the most controversial elements of the Bush Administration’s detention and interrogation programs. Most notably, Obama declared that the Administration hoped to close Guantánamo within a year. A little noticed memorandum issued at the time of the orders was dedicated to Marri. It called for a Cabinet-level inter-agency task force, led by Attorney General Eric Holder, to review Marri’s case, with an eye toward finding alternative ways to deal with him.

The same officials will review the status of the enemy combatants held in Guantánamo. The Obama Administration has indicated that it hopes to return the majority of the detainees to other countries, or to try them in civilian and military courts. The looming question, however, is whether there is a category of terror suspect whose status precludes such options. It’s unclear whether some home countries can provide fair trials or secure prisons. More important, the high standard of evidence required in U.S. courts—guilt must be proved “beyond a reasonable doubt”—might result in dangerous individuals being set free.

Qatar has made known its interest in having Marri come home. But the Obama Administration has to decide whether he poses a recidivism risk—an assessment that has to be made, in part, on the basis of statements elicited through torture. (Khalid Sheikh Mohammed, the self-described mastermind of the 9/11 plot, was waterboarded by the C.I.A., and reportedly said that Marri was a fellow-terrorist.) As such, Marri may exemplify what Greg Craig, Obama’s White House counsel, calls “the toughest question” facing the Administration as it tries to bring the Bush program within the rule of law: what to do with the so-called “third category” of detainees—suspects who may be difficult to convict under the American standards of justice, but who may pose a palpable threat if released.

Depending upon how many such “hard cases” exist, Craig says, the Administration will decide whether new laws, including possibly those enabling some sort of preventive detention, are necessary. Although the detainees from the Bush era pose the most immediate problem, he said, it’s possible that the new Administration may also want to handle future prisoners outside the existing criminal- and military-court system. “A good deal of policy research remains,” he said. “The door was not left open by accident. Obama wants the freedom to hear the recommendations of the most experienced and smartest people, on how to protect the American people while still respecting the rules of the road on liberty.” He suggested that the Administration would prefer not to go in that direction. “It’s possible but hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law,” Craig said. “Our presumption is that there is no need to create a whole new system. Our system is very capable.” Then again, the idea is not being ruled out, which may be surprising to some constituents, given Obama’s past support for civil liberties and Craig’s own record—in the early nineties, he served as the chairman of the board of the International Human Rights Law Group, an advocacy organization now known as Global Rights.

Obama’s legal team is aware that every step it takes will be seen as an indication of core convictions. Craig, who will coördinate the revamping of the Bush Administration’s legal policies on terrorism, said, “One way we’ve looked at this is that we own the solution. We don’t own the problem—it was created by the previous Administration. But we’ll be held accountable for how we handle this.”

The Obama Administration has already inflamed some members of the human-rights community. On February 9th, the Justice Department adopted the same position that Bush had taken in a case filed by the American Civil Liberties Union. The government attempted to squelch a lawsuit initiated by a group of terrorist suspects—one of whom had allegedly been tortured in Morocco after being transferred there by the C.I.A.—on the ground that it would open up state secrets. Scott Horton, a law professor at Columbia University, characterized the new Justice Department’s position as a betrayal of the “promises of transparency and accountability” made by Obama during the campaign.

The first step in cases such as Marri’s, Craig suggests, will be to evaluate the “dangerousness” of each detainee, and to scrutinize all documents passed on by the previous Administration. “We need the facts,” he said. “And we need fresh eyes.” For years, John Ashcroft has justified the military detention of Marri as a safety precaution. “Sometimes the criminal courts are not up to it,” he told me. But, as the new team reviews Marri’s story, it will likely find ample grounds to reassess the notion that the courts can’t handle terror suspects, and that such suspects can’t be safely housed in the United States without incident.

In a recent interview, David Kelley, a former U.S. Attorney for the Southern District of New York, who supervised the early stages of the Marri case, revealed that he had warned his bosses in the Justice Department that they were making a mistake by sidestepping the criminal courts. Kelley co-chaired the Justice Department’s nationwide investigation into the 9/11 attacks, and headed the investigations into the 2000 attack on the U.S.S. Cole, in Yemen, and the 1998 bombings of the U.S. Embassies in Kenya and Tanzania; he also led the prosecution of Ramzi Yousef, in the 1993 World Trade Center bombing. In 2003, he successfully prosecuted John Walker Lindh, the American accused of aiding the Taliban. In the interview, Kelley said he believed that the government had a strong case against Marri: he had been charged with credit-card fraud, bank fraud, identity theft, and lying to a federal agent. He thought that Marri could be convicted in a matter of a few months, and sentenced to years in prison. Kelley, who is now a partner at Cahill Gordon, in Manhattan, was disappointed when, on the basis of a one-page executive order, Marri was suddenly sent to the brig. “My view is, we haven’t really exhausted the potential for using the criminal-justice system,” he said.

James Benjamin, a former federal prosecutor in the Southern District of New York, is now a partner at the law firm Akin Gump. In 2008, he co-wrote a review of the Marri case, characterizing the switch to military detention as counterproductive. “Definitely, the criminal-justice system can handle someone like Marri,” he told me. “They caught him under the criminal-justice system. And, based on what we know, they were poised to convict him.” What happened to Marri before he was moved “proves the system was up to it.”

Marty Lederman, a former Georgetown Law professor, whom Obama has appointed to be a deputy in the Justice Department’s Office of Legal Counsel, argues that the Bush Administration’s claims to be acting out of necessity were “nonsense.” In an essay published before he joined the Administration, Lederman wrote, “Even if everything the government alleges about al-Marri’s ties to al Qaeda are true,” he was not a danger “because he was already incapacitated—imprisoned—within the criminal-justice system, where his trial was pending.”

Marri had aroused the suspicion of law-enforcement officers almost as soon as he arrived in the Midwest with his wife, Maha, who spoke no English, and their five young children. His timing was conspicuous—he arrived in Chicago the day before 9/11. The next day, the family took a hundred-and-fifty-mile taxi ride to Peoria.

Marri enrolled in computer-science classes at Bradley University, where he and a brother had obtained undergraduate degrees. Qatar, which has one of the highest per-capita incomes in the world, pays college tuition for many of its citizens, and several members of the Marri family have attended school in America. According to the Washington Post, as an undergraduate at Bradley Marri wore a ponytail and was known for his partying and his quick sense of humor. He returned to Qatar in 1991, after graduation. Later that decade, a palace coup in Qatar shook his family, eventually prompting some members to leave for Saudi Arabia, where many of his brothers and his wife now live. Marri reportedly ended up in Afghanistan. According to the sworn statement given by Jeffrey Rapp, the D.I.A. analyst, at some point between 1996 and 1998 Marri was trained in chemical weaponry at an Al Qaeda camp there. (Marri, through his lawyer, denied these allegations.)

Patrick Theros, who was the U.S. Ambassador to Qatar during this period, is skeptical of the terrorism allegations. “I’ve never heard anyone say this Qatari kid did anything,” he told me. Theros described Qatar as both religiously conservative and tolerant, and says that as far as he knows it is home to virtually no violent radical Islamic movements.

In the summer of 2000, Marri returned to Illinois, where he allegedly registered a carpet business in Macomb, and opened multiple bank accounts, under a false name and Social Security number. When he went back in the fall of 2001, according to the Washington Post, he had a briefcase filled with hundred-dollar bills. Rapp’s statement claims that Marri had obtained more than thirteen thousand dollars in cash from Mustafa Ahmed al-Hawsawi, the financier in the United Arab Emirates who is known to have bankrolled the September 11th hijackers. Phone records apparently offered further evidence of a tie between Marri and Hawsawi.

Law-enforcement authorities pieced together this picture bit by bit. In September, according to the Post, local police stopped Marri while he was driving, checked his license, and discovered an outstanding warrant for drunken driving, dating back to his earlier student days, as well as the briefcase filled with cash. The police notified the F.B.I. Several weeks later, his lawyers say, a cell-phone salesman, noting discrepancies in Marri’s identification documents, also called the bureau. In October and December, 2001, F.B.I. agents interviewed Marri; they say that he offered to let them search his laptop computer, his minivan, and his small rental apartment. Later, Marri’s lawyers argued that the agents had failed to obtain a warrant, and that the information from the search could therefore not be admitted into evidence. According to Rapp’s statement, Marri’s computer was filled with information on deadly poisons, including a step-by-step guide to making hydrogen cyanide—a toxic substance that can be used in poison-gas attacks. Marri, in claiming his innocence, has had no chance to see the evidence against him. Asked recently why he was researching such chemicals, Marri, through his lawyers, gave his first public answer. He was “doing research for a family member in the petrochemical industry to be used for industrial purposes. The research involved visiting Web sites that contained hundreds of nonpoisonous chemicals (not just cyanide). And even cyanide has numerous industrial uses.”

The laptop also reportedly contained lectures by bin Laden, and unsent e-mails to an address that Rapp said was connected to Khalid Sheikh Mohammed. Some of Marri’s e-mails were encoded. Upon discovering this information in his laptop, the F.B.I. arrested Marri as a material witness to its investigation of the attacks. Soon after, he was charged with credit-card fraud and with failing to tell the F.B.I. about his 2000 visit to America and his phone calls to Hawsawi.

On the morning of June 23, 2003, only days before Marri’s defense team was to make its arguments about suppressing the laptop and other evidence, one of his lawyers received a phone call informing him that a U.S. Attorney would be making an unexpected appearance at the courthouse that day. President Bush, the lawyers soon learned, had signed an executive order directing the military to seize Marri. “We should have seen it for what it was—the foreshadowing of an Administration that was going to forsake the Constitution in the war on terror,” Lawrence Lustberg, one of the earliest defense lawyers on what has come to be Marri’s team, said. “From then on, we didn’t see Marri or hear from him again until late 2004. He just went into the abyss.”

Before agreeing to transfer Marri to the brig, however, the presiding judge in the case ruled that the White House would be barred from charging Marri again with the same crimes. In legal jargon, the original charges were “dismissed with prejudice,” to protect Marri’s right not to be placed in “double jeopardy.” As a result, if the Obama Administration decides to charge him in the criminal system now, it has to bring a different set of charges, unless Marri’s lawyers offer a deal. Benjamin, the former prosecutor, insists that “there is a whole bag of tools for dealing with truly bad guys—there are many other statutes that the government could explore, including material support of terrorism, conspiracy charges, and mail- and wire-fraud charges.” But, he suggests, by taking Marri outside the regular criminal system “there’s no doubt they made all kinds of problems for themselves.”

Andrew McCarthy, a former federal terrorism prosecutor who writes for National Review, defends Marri’s transfer to the brig. “Sure, the criminal-justice system, by permitting Marri’s pretrial detention, neutralized him, at least for a time,” he says. “But there’s always the chance the court will release a defendant on bail.” Moreover, he argues that open criminal trials run many risks, including the accidental, or oblique, disclosure of classified information. It’s also unclear how to handle witnesses who may themselves be terrorists: they may demand immunity before they will talk. Or it may be that their testimony was obtained by unsavory means, which could scuttle a conviction.

In the Marri case, however, it does not appear that a fear of losing led Bush to transfer him to the Navy brig. Kelley, for example, thought that the case the government had was “solid.” Instead, it appears that the real motive was frustration on the part of the Justice Department at being unable to make Marri confess. Kelley was told to push him hard, which he did, but Marri kept professing his innocence. As Ashcroft wrote in his 2006 book about fighting terrorism, “Never Again,” “Al-Marri rejected numerous offers to improve his lot by cooperating with the F.B.I. investigators and providing information. He insisted on becoming a ‘hard case.’ ” Mark Berman, an early member of Marri’s defense team, asserts that the Bush Administration “really just wanted to interrogate him” in a rough manner. “No doubt about it.”

The right to remain silent is a fundamental aspect of the American justice system. Justice John Paul Stevens, dissenting in the 2004 case Rumsfeld v. Padilla, wrote, “Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure.… For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.”

The summer of 2003, when Marri entered the brig, was the height of the Bush Administration’s program of authorized abusive interrogations. The C.I.A. had just taken Khalid Sheikh Mohammed into custody, and was using extreme measures to make him divulge information (much of which he later recanted). Marri was among those whom Mohammed apparently implicated during this period. By then, Bush appointees in the Justice Department had produced numerous memos advising the C.I.A. and the Pentagon that there were virtually no legal impediments to the use of physical and psychological force to break “unlawful enemy combatants.” Suspects considered especially “high value” were subjected to extreme sensory deprivation and other harsh tactics, which were modelled on Soviet and Chinese torture programs that had been studied and copied by the C.I.A.

Inside the Charleston brig, documents show, officials were ordered to follow the same rules as those at Guantánamo. Lustberg, however, says, “I’ve been to Guantánamo. Marri was far more isolated. He had no contact with any other detainees. Most days, he had no human contact at all.”

For the first six months, Marri was kept in an eight-foot-by-ten-foot cell with one blacked-out window, no social interaction, and nothing to do or to read. An internal report, declassified in 2005, showed that during this period the Department of Defense ordered the removal of the mattress, pillow, and Koran of a detainee in the brig. Marri was also deprived of visits from the Red Cross, in violation of international laws. He was denied hot food, and consistently felt cold: he was given no socks, and his bed had only a stiff “anti-suicide” blanket—one that cannot be made into a noose. Andrew Savage, the local counsel for Marri in Charleston, says, “It was a psychological effort to devalue him. He was going crazy. He thought the smells from the nearby paper mill were poisoning him.” At other points, Marri started feeling “tingles” all over, and began hallucinating that microphones had been installed in his cell. “He was getting delusional,” Savage said.

When unidentified interrogators finally showed up at the brig, Marri told them that he needed three things: a blanket, shoes, and socks. If he was given those, he said, he would talk to them in another six months. “He said, ‘You deprive me? I’ll deprive you,’ ” Savage said. Instead, “the interrogators got rougher.” Marri was chained in a fetal position on the floor. When he started to chant prayers rather than listen to the interrogators’ questions, Savage said, they tried to silence him by wrapping duct tape around his mouth. When he kept humming, they tried to gag him. But as they started to tape a sock in his mouth he began to choke, causing the agents to panic and stop. The episode was documented by closed-circuit surveillance cameras, Pentagon officials have confirmed.

A spokesperson for Lieutenant General Michael Maples, the director of the Defense Intelligence Agency, told the Times that Maples considered Marri’s treatment “acceptable.” But the Pentagon has refused to share the tape of the gagging, which evidently still exists, with Marri’s defense team. Though the Defense Department has admitted to erasing a number of other tapes of Marri, the surviving tapes could prove damaging should the case go to trial.

Despite the so-called “enhanced” interrogation tactics used on Marri, he continued to insist that he had never met Osama bin Laden, was not a terrorist, and wished the U.S. no harm. If Marri was cast into military detention in order to make him confess, it didn’t work. “I’m not surprised,” Kelley said. “I don’t know of many instances where other agencies have got more out of defendants than the F.B.I. can.”

In October, 2004, after a sixteen-month blackout, Marri’s defense lawyers were finally allowed to meet with him again. The Supreme Court had just ruled, in Rasul v. Bush and in Hamdi v. Rumsfeld, that “unlawful enemy combatants” were entitled to legal representation and some form of due process. As three of his defense lawyers watched from one side of a glass partition, Marri was brought in wearing a belly chain and shackles, which were bolted to the floor. Guards wearing black gloves and covered I.D. tags stood by.

“It was unbelievably emotional,” Lustberg recalls. “We had fought so hard for the right to see him. He was obviously suffering the effects of long-term isolation. He seemed paranoid, scattered, distracted, and disturbed. He was showing signs of mental illness.” Berman recalls, “He was much thinner. Mentally, he’d been through a lot. He was a little off-kilter.”

As the debate over indefinite detention intensifies, Marri’s example may prove cautionary to those who think that it can be designed in a humane way. Savage, the Charleston lawyer, now speaks to Marri by phone every few days, and visits him in person every other week. He believes that nothing has been tougher on his client than the uncertainty of not knowing if he would ever be released. “He would have preferred beatings,” Savage said. “He’d say, ‘Andy, it’s worse than beating.’ He wanted to be sent to Egypt to be renditioned. He’d say, ‘Torture me—but end it!’ ”

By the spring of 2005, Savage feared that Marri was, as he put it, “slipping away.” Previously undisclosed correspondence between Marri and his attorneys shows that he was thinking about getting a divorce; as he later explained to Savage, he thought that his wife should marry his brother rather than be abandoned in his absence. “I feel something will happen to me,” Marri wrote in February, 2005. “I want to make sure everything is documented.” Two months later, he wrote, “My body is tired & I don’t know how long I can take it anymore.” In the spring of 2007, Marri gave Savage power of attorney, as if preparing to die.

Given the reputation that military prisons have developed after the abuse scandals at Guantánamo and Abu Ghraib, the lawyers for Marri were surprised to discover that they had allies in the Navy brig who shared their concerns over Marri’s treatment. Unlike the staff at Abu Ghraib, the brig staff had been trained for the job. Their mission, as they saw it, was to run a safe, professional, and humane prison, regardless of who was held there. It was the political appointees in Washington, at the Pentagon and the Department of Justice, who wanted Marri to be kept in prolonged isolation. In 2005, Savage discovered that the head of security at the brig, Air Force Major Chris Ferry, “would stay all night with Marri. He’d go down to the brig and sit with him, and tell him to hold on. Chris was there at three in the morning, on the darkest nights.” Geoff Morrell, a Pentagon spokesman, would not allow Ferry to be interviewed for this story, saying, “Given that President Obama has ordered a review of the al-Marri case, we feel it would be best to complete that work before publicly discussing any further the specific aspects of his detention or interrogation.” Morrell added, “The Department of Defense treats all detainees humanely, and this is particularly true in the case of al-Marri, for whom we have taken extraordinary measures to insure his physical and mental well-being.”

In 2005, Marri’s lawyers filed suit against the Department of Defense, alleging that conditions at the brig were causing a “mental health emergency” for Marri. Savage said, “Later, we found the biggest lobbyists for improved conditions were . . . the staff of the brig. The commanders were terrific. They kept rotating through. My sense is that they saw things becoming too pressured psychologically. They’re good G.I. Joes—they salute and follow orders. But they’re human.” Documents released in response to a Freedom of Information request by the Allard K. Lowenstein International Human Rights Clinic, at Yale Law School, show that unnamed officers in the brig worried that the enemy combatants being held there at the time were close to losing their sanity. “I fear the rubber band is near the breaking point,” one internal e-mail said. Other e-mails show that unnamed brig staff officers fought to get the detainees almost anything to occupy their minds, from a deck of cards to a soccer ball. Their concern wasn’t entirely altruistic. In his despair, Marri had increasingly become “non-compliant,” covering the closed-circuit cameras in his cell with spitballs, refusing to eat, and throwing cups of his urine at guards.

After Savage filed suit, Marri’s conditions started to improve, and so did his behavior. Marri was gradually given reading material and exercise equipment. A year after his father died, in 2007, an imam was sent to the brig to tell him. More recently, he was granted the right to make two phone calls a year to his family. (Last month, however, he was denied a visit from his eldest son.) Savage is now allowed to bring him Muslim religious texts, which he spends most of his time poring over, and kosher food from a deli in Charleston, whose method of food preparation resembles that prescribed by halal.

Marri’s conditions have so improved that his lawyers jokingly refer to him these days as “the Emir of the S.H.U.”—the high-security wing of the brig is known as the Special Housing Unit. He remains the sole prisoner in the wing, but he now has the regular use of three cells, which he refers to as his “executive suite.” One cell contains a memory-foam mattress. Another houses a personal library containing hundreds of volumes. The third contains alcohol-free cleaning supplies, in compliance with his Muslim religious needs. When visitors come, he sees them in an upper-tier room that he calls his “summer chalet.” He also has exclusive access to a thousand-square-foot dayroom equipped with a treadmill and an elliptical machine. Officially barred from watching the evening news, Marri has become a devotee of Stephen Colbert and Jon Stewart—whom he calls “that Jewish guy.”

Marri is still not always a model prisoner. At one point, he became angry at Stephanie Wright, the brig’s commander at the time, for being slow in getting him medicine that he had requested. He picked up a guard’s two-way radio, which had been left unattended, and screamed into it, “Stephanie! This is me—Ali—EC#2! Move your ass!” His voice was heard over all the radios in the brig. Guards came running toward him. “I think he acted out for his own entertainment,” Savage said.

Since prison censors cut many of the hard-news stories out of the papers he received, Marri began sending brig authorities frequent notes about local ads. As Savage recalls it, one note said, “It’s a two-for-one sale on upholstered chairs! I’ll take the purple—you can have the lime green.”

Soon after Obama issued the executive order to close Guantánamo, Republican Senator Pat Roberts, of Kansas, called “unacceptable” any possibility that detainees might be moved to Fort Leavenworth, the Department of Defense’s only maximum-security prison, which is in Roberts’s home state. Senator Chris Bond, of Missouri, the ranking Republican on the Senate Intelligence Committee, warned that he could not “think of any city or town across this country that will be thrilled to have Khalid Sheikh Mohammad or Abu Zubaydah living down the street.”

But in Charleston, where the only enemy combatant in America really does live down the street, the picture is more reassuring. In December, Marri, wearing goggles, earmuffs, a belly chain, and shackles, was led out of his cell block. No one told him where he was going, but the guards said that he had a visitor. The destination, it turned out, was the visitors’ center, where the commander of the brig, John Pucciarelli, who was transferring out of the facility the next day, had two things to tell him. According to Savage, Pucciarelli said that he was sorry that he had been unable to do more for Marri, but he had treated him as well as he could. He also said that there was a gift waiting for Marri, back in the dayroom. When Marri returned, he found a thirty-two-inch-screen television.

Andrew Savage was delighted. Although he had been skeptical about Marri, he has become convinced that he poses no danger. “I don’t fear him, not personally and not for the United States,” Savage said. “Is he putting me on? Scamming me? Putting it over on me? I really don’t think so. I’m not naïve. I’ve defended multi-murderers, child murderers, child molesters, and all sorts of violent criminals. But I really don’t think Ali’s a terrorist.”

Michael McGovern, a former Assistant U.S. Attorney for the Southern District of New York, who indicted Marri, scoffs at Savage’s notion that he is harmless. “I find that statement pretty remarkable, given that the evidence showed that he was communicating directly with the masterminds of the 9/11 attacks.”

Before the Bush Administration’s experiments with executive detention, the way to settle such disputes was in the courtroom. Depending on how Obama decides to move ahead, that situation may prevail again. If so, he will have history and tradition on his side. As Hafetz puts it, “In the more than two hundred and thirty years since this country’s founding, we have not found a better way to find the truth than through a criminal trial.” ♦

COMMENT:
President Obama must make a decision about the persons detained on suspicion of terrorism and to date, through a presidential decree of former president Buch, do not have the right to be considered prisoners, nor to demand a trial; remaining indefinitely as detained. Obama offers in his election campaign, give a solution within the law of the U.S. (this means they must be brought before a court and there must define their situation), but there are fears of a large part of politicians, scholars and citizens in general, that they can be free, for lack of evidence (although the suspicion of being linked to terrorism, has a handle).

In my opinion this is the old dilemma, and even more in the U.S., about the supremacy of the individual over the state. Should individual rights be respected even if it will threaten the state? (eye "State" as the organization of society). Or should the state be protected even if that limit or eliminate the rights of the individual?. In this regard, I believe that the solution depends on the circumstances. How far people are willing to allow any supremacy?. I think that is the measure.
Lawyerinperu http://alonsosarmiento.googlepages.com

The Journey to Elsewhere, U.S.A.

2009-02-12T23:22:00.000-08:00

A professor explains how new technology drastically altered the modern American family unit.
By Abigail Tucker
Smithsonian.com, January 29, 2009

What is this distracted, rootless place, where kids eschew stuffed animals in favor of online avatars, buzzing iPhones interrupt family dinners and the workday stretches late into the night?

Dalton Conley, a social sciences professor at New York University, calls it, simply, “elsewhere,” and his new book tracks the social and economic changes of the last three decades that landed us here. Elsewhere, U.S.A.: How We Got From the Company Man, Family Dinners, and the Affluent Society to the Home Office, Blackberry Moms, and Economic Anxiety shows how the death of the old ways (auto workers’ unions, coal mines) and the birth of new (air conditioning, tip jars and the three-bathroom home, for starters) have contributed to our present predicament, where no one has the time or presence of mind to concentrate on anything at all, even our children’s voices. Even so, the author took a few moments to speak with us and guide us through this new and lonely landscape:

Where is Elsewhere, USA?

Elsewhere, U.S.A. is, ironically, everywhere. It’s really about a state of mind, (where you are) occupying multiple nonphysical locations at one time, managing data streams not only in your immediate environment, but from a laptop or BlackBerry or iPod, having emails come in and at the same time being on Facebook. All the spheres – home, work, social life – have collapsed into each other. It’s a different texture of life.

How did Mr. 2009, as you dub modern man, and Mrs. 2009 get into this mess?

I don’t think they had much choice. There is, of course, the changing technological landscape: the beeping, buzzing, flashing machines around us, demanding our attention. Those are the obvious things. The other forces include rising economic inequality and the increased labor force participation of women, especially moms.

How will their children cope?

It’s really my generation – I’m about to be 40 – that’s the most discombobulated by all this. People in their 70s are in their pre-techno bubble, doing things they way they’ve always done. The kids have no collective nostalgia or sense things were different once, because this is all they’ve ever known. They’re toggling back and forth between games and talking to friends and they have an enormous amount of overscheduled structured activities. And maybe that’s what they need. That’s what it’s like to be an American today, to be overscheduled, behind on work, and managing multiple data streams. So we are preparing them well, so to speak.

What is an “intravidual,” as opposed to an individual?

It’s the notion that whereas once we had a coherent, private self that we had to discover and then use to guide our choices, values and actions, the intravidual is about learning how to manage multiple selves and respond to multiple data streams in virtual places. The idea is not to find a core of authenticity but to learn to balance.

You talk about the stigma of leisure, and how leisure has become something for the poor.

It used to be as your income rose you bought more leisure – leisure was like a color TV or a car, a good you consumed, time you took off. Now when you earn more money you think about how much more it costs you to take off because you’re worth more. Opportunity cost trumps the desire to take time off. Standing still means falling behind.

What did your field trip to the Google headquarters teach you?

They were really ahead of the curve in terms of making their work environment very homey. They provide everything a 1950s housewife would have provided. Do your laundry. Give you a massage. Great food for free. At first glance it seems like a very expensive strategy, but I think it’s brilliant. People don’t want to go home. There’s a volleyball court and board games around. It feels like a college campus. And Google gets more out of each worker.

You mentioned the urinals at Google.

In English or Irish pubs they pin the sports pages over men’s urinals so you can read while relieving yourself. At Google they put up coding advice. It felt a little 1984.

You discuss “two-rooms,” day care centers-cum-office buildings where parents can watch their children while working. How else will the physical architecture of Elsewhere be changing in the near future?

I might imagine that you’ll find more integration of housing and firms, the return of the 19th century “company town.” A place like Google could start building housing, like dorms, around their campus, for underpaid programmers, rather than have them waste all this time commuting. They could just live there.

How do we return from Elsewhere?

It’s not an option, I’m sorry to say. It’s not going to go in reverse. It could be that we have lower inequality because of the decline of the stock market and so on, but I think that will be a temporary blip. What we’re really going to see is this trend going forward.

Can’t we just turn off our BlackBerrys? What about free will?

I have heard stories of people who sell the business and pack up and move to rural Maine, and I think it’s interesting that people would do something so drastic. I guess that’s what it takes. But for most of us it’s more about managing these flows than turning back the clock.
Comments
All this is like Prometheus, whose exploits in turn will bring him misfortunes. There is no way to avoid the continuing advance of knowledge and ever is more difficult to overcome the challenges that brings. Trying to return to the past is as illusory as wanting to bathe in the same river. This leads us to reflect on the role of the individual, family, community and the state, according to the civilization in which we live. There are many people who have jumped on stage and faced the modern life without even experiment the ancient. Consumerism is installed in communities living on subsistence and boredom abounds in affluent societies. As has always been in all periods of history, sought answers outside of man. The men quickly seek a God. Before the God was located in heaven, now lies in technology.

Then and Now

2009-02-12T23:20:00.000-08:00

The nation Barack Obama inherits
by Timothy Lavin

n March 4, 1933, Franklin Roosevelt addressed a crowd of 400,000 at his first inauguration. The past few years had seen a spectacular decline in the nation’s fortunes, born of what he called the “mad chase of evanescent profits.” Banks were failing, savings disappearing, real estate and commodities collapsing. Fascism was rising abroad. In response, Roosevelt pledged “a disciplined attack upon our common problems.” He didn’t get much more specific than that. And, really, he didn’t have to. The people wanted change, in the current vernacular—or, more precisely, they wanted a government that could respond coherently to the profound changes that were already under way.

Also see:

Time capsule: The Bush Files
Readers are invited to submit mementos—from quotes to videos to books to movies—that best capture the essence of the Bush years.

Spotlight: "The Bush Years"
Reports and commentary by James Fallows, Mark Bowden, Christopher Hitchens, Pat Buchanan, Robert D. Kaplan, and others.

Barack Obama assumes the presidency this year amid a similar sense of national crisis, and having made similar promises of change. And, like Roosevelt, he’ll be leading a country very different from the one his predecessor inherited: as the statistics on this map show, change itself is one thing we’ve seen in abundance in the past eight years. Making sense of that upheaval will be the first responsibility of the new administration.

Since 2000, America has changed in small ways, in big ways, and in ways that seem innocent enough now but no doubt herald some radical disruptions to come. Many more people are poor, uninsured, and in prison. Many more are billionaires. The burden of health-care costs has grown heavier, and so have we. We charge more, save less, and play a lot more video games. Even the things that haven’t changed much—like the amount of oil we consume, or the price of cocaine, or the size of our military—reflect not so much stasis as unsustainable trajectories. For Obama, responding to these problems will require breaking deep national addictions—to oil, to etherealized finance, to profligacy of all kinds—and, somehow, easing the tremens along the way. Perhaps, in doing so, he should heed a warning Roosevelt issued on the campaign trail: “Without leadership alert and sensitive to change,” he said, “we are bogged up or lose our way.”
Comments
America has been looking its navel all the time while the rest of the world was from crisis to crisis. Now receives only a small dose of his own chocolate and falls in panic and start searching for a miraculous savior that could put them back on its wheels to their American way or life. The solution to the crisis as it has occurred in poor countries is tighten the bottom so the rich do not have to share some of what they left over.
Alonso Sarmiento Llamosas
http://alonsosarmiento.googlepages.com

For Peruvians, Baskets for the U.S. Market Bring a New Way of Life

2009-02-12T23:17:00.000-08:00

By ROXANA POPESCU
Published: January 19, 2009
SAN ANTONIO DE PINTUYACU, Peru — Women in this remote Amazon village can weave fibers from the branch of the chambira palm tree into practically anything they need — fishing nets, hammocks, purses, skirts and dental floss.

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Roxana Popescu for The New York Times
In San Antonio de Pintuyacu, Peru, villagers gathered for a meeting on the basket-making enterprise there.

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Roxana Popescu for The New York Times
Angela Pacaya teased apart a palm branch to get at the fiber inside.
But for the last year they have put their hopes in baskets, weaving hundreds to build inventory for export to the United States. Their first international buyers are the San Diego Natural History Museum and San Diego Zoo, and they plan to sell to other museums and home décor purveyors like the Field Museum in Chicago and eventually Cost Plus.

The circuitous route these baskets have taken from the jungle to American store shelves started with a bird watcher’s passion for natural habitats, passed through a regional government whose policies have become increasingly more conservationist, and, supporters say, should end with better lives for the weavers and their communities.

The enterprise is one of many ventures here in the Amazon aimed at “productive conservation,” which advocates say will save the rain forest by transforming it into a renewable economic resource for local people — just as some eco-tourism lodges and other ventures in places like Africa and Southeast Asia have tried to do.

The greatest challenge has been convincing residents of the communities along the river, who until now largely supported themselves by chopping down palm branches and fishing, that conservation is in their best interest.

The government of Loreto, Peru’s densely forested and least populous region, organized the basket project, which is financed by grants from two nonprofit groups, Nature and Culture International and the Moore Foundation.

“Having the government take such a role in a market-based approach is quite novel,” Amy Rosenthal, deputy director for projects at the Amazon Conservation Association, a nonprofit group that works in southern Peru and northern Bolivia, said when told of the program.

She said the state of Amazonas in Brazil has tried a similar conservation-exploitation program. “It sounds like a well-thought-out program and something that could be wildly successful,” she said.

But the program in Peru is not without challengers. Iván Vásquez, president of the Loreto region, said he had made some enemies for supporting conservation in a region where fishing and logging have been the primary sources of revenue for decades and where oil and gas are seen as the next frontiers.

He called himself “the Quixote of the Amazon.”

“We are part of nature. When we destroy nature, we destroy ourselves,” Mr. Vásquez said.

He said big logging operations, not small farmers, continue to pose the greatest deforestation threat.

The changes in Loreto may correspond to a broader shift in Peru’s attitude toward conservation. Last spring, motivated by the signing of a free-trade agreement with the United States, the country set up an environment ministry, which has already started to focus on deforestation.

The basket project is the brainchild of Noam Shany, an Israeli agronomist and entrepreneur. A bird-watching trip in 2005 led him to a remote village on the Tahuayo River, an Amazon tributary. There, he said, he noticed striking local baskets for sale in a tourist lodge.

Mr. Shany, who had previously sold artificial plants to Wal-Mart and cacti to nurseries in California and Australia, decided to put his retail experience to an environmental use.

In 2006 he helped found Procrel, a biodiversity program that has worked with the regional government to establish three vast protected reserves. The basket program is one of several conservation initiatives intended to help indigenous peoples benefit from the conservation efforts.

Pitching Peruvian handicrafts to retailers in the United States was easy. “These baskets represent so much more than simply a basket,” said Nancy Stevens, manager of retail and wholesale operations for the San Diego Natural History Museum.

“When I began to hear their story,” she said, “from a local project into a story of sustainability, where they’re being developed as a responsible use of the natural resources of this Amazon region — it just clicked so beautifully with the mission of this museum.”

Pitching an international enterprise to the villagers was almost as easy. Mr. Shany turned a somewhat haphazard local craft — women making a few baskets, selling them in a local shop, then making a few more — into something more like mass production, with higher returns to the producers.

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Roxana Popescu for The New York Times

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Roxana Popescu for The New York Times
Noam Shany, in Atalaya, Peru, came up with the idea of a basket-making venture after seeing local designs at a tourist lodge.
Artisans get $10 to $12 for each basket, which sells for $40 in the United States. About a third of that goes into shipping and distribution, and the rest is retailer profit, meaning the company that distributes the baskets gets a little more per unit than each maker. Mr. Shany and Procrel receive nothing.

The artisan’s cut may not seem substantial, Mr. Shany said, but it is more than double previous monthly earnings. Two years ago, households in this region earned as little as $30 a month selling fish and palm frond roofing at city markets, he said. Today, experienced weavers can earn up to $100 a month.

Over time, urban Peruvian employees of the program have brought a new vocabulary to the river communities. Visiting every few weeks, they encourage the weavers to respect deadlines, quality control and inventory requests. On one such recent trip, Mr. Shany delivered a pep talk to his newest recruits.

“These stores don’t buy one hundred baskets,” he said. “One hundred is nothing. Two hundred is nothing. They buy a thousand, ten thousand. You’re all going to need to work together.”

Since the program started, Mr. Shany said, the weavers had not been able to meet demand. “We can’t keep up with the orders,” he wrote in a recent e-mail message. “We are training more ladies to increase production and also to involve more people.”

Ms. Rosenthal said that there were considerable difficulties with any start-up operation like this, not the least of which is falling discretionary spending of all kinds by American consumers as the recession in the United States deepens.

Other than that, “quality assurance is probably their biggest challenge for selling something retail in the U.S.,” she said. But if successful, the arrangement “can bring them much better profits and a much better source of income than in local terms.”

Still, Trevor Stevenson, executive co-director of the Amazon Alliance, a nonprofit group that focuses on indigenous populations, said it was vital for communities to diversify their income and not count exclusively on crafts, which can be volatile, particularly in times like these.

One challenge has been teaching the river communities to shift from consumption to conservation on a large scale.

“Here, today is today,” Mr. Shany said. “Tomorrow is another day. It’s an immediate mentality, so replanting, and not cutting the tree in the first place, is really revolutionary.”

Eblis Chavez, from San Antonio de Pintuyacu, a village of Iquito Indians that is two days by motorboat from the nearest city, said residents had been slowly won over.

“We hesitated a bit originally,” Mr. Chavez said, “but it makes much more sense to preserve the trees.”

A year ago, villagers here walked for hours to find irapay palms, whose fronds are used for the ubiquitous thatched roofs sold at markets, because they had chopped all the trees closer to them. They carried the loads on their backs. “We were slaves of the irapay,” Mr. Chavez said.

Since last January, villagers have planted chambira groves 10 minutes away, where young fibers used for basket weaving are ready for harvest every six months.

“I’m pleased with this reforestation project, which will remain for my children,” said Angela Pacaya, who heads the artisan cooperative.

The baskets are bringing staples, and stability. “Already, there’s more money changing hands. Already we’re buying more from the bodegas. Rice, sugar, soap,” said Erika Catashunga, of Esperanza, another village, speaking by communal telephone.

Ms. Catashunga, 25, is now at the forefront of another venture. She has just received the first business license granted to a basket weaver with Procrel, establishing her as the manager of a nine-village empresa comunal, or communal enterprise. Its name is Mi Esperanza, or My Hope.

Growing up, she never imagined she would manage a global business. “Not even in my dreams,” she said.

Dear Sir.
The inhabitants of the jungle of Peru live in extreme poverty and a fragile ecosystem. Therefore, the gain of $ 100 a month could be the difference between survival and death. Only We should take care of westernise'their a culture that has centuries of difference with us. Meanwhile, Mr. Vasquez Yván, Regional President of Iquitos, aims to build a train from Iquitos to the Pacific Ocean, whose consequences are unpredictable to the Amazon life.
Alonso Sarmiento LLamosas
http://alonsosarmiento.googlepages.com

History & Archaeology Evolution and Equality

2009-02-12T23:13:00.000-08:00

By Terence Monmaney
Smithsonian magazine, February 2009
Despite all the hullabaloo leading up to their shared bicentennial, it still seems incredible that Charles Darwin and Abraham Lincoln, two of the most important and most admirable people of the 19th century, whose deep contributions to their time continue to be felt in ours, were born on the same day, February 12, 1809. Though the English naturalist and the American president were worlds apart in life, there's something to be gained considering them side by side, some sparks of insight generated when their stories rub against each other. Thus our Two Centuries of Genius special feature: the distinguished historian Philip B. Kunhardt III parses the Lincoln mythology ("Lincoln's Contested Legacy"), Thomas Hayden reports on scientists today working to expand upon Darwin's everlasting breakthrough, evolution by natural selection ("What Darwin Didn't Know," p. 40), and Adam Gopnik looks into what truly made the men unique ("Twin Peaks").

Darwin and Lincoln might have had more in common than we thought. Lincoln, of course, was motivated by the cruel injustice of slavery, but recent scholarship suggests that so was Darwin, whose family was staunchly abolitionist. "He was disheartened to see advocates of slavery justifying their position by saying that white European humans and black African humans were not the same species," Hayden says. "One of the animating thoughts in the young Darwin's mind as he set out to understand the world was his conviction that all humans were one."

The idea of evolution as an equalizing force is worth pursuing, and you may do so at Smithsonian.com, where we have extra content about Lincoln and Darwin, including videos, photographs and stories, such as "Darwin on Lincoln, and Vice Versa." Our blog Surprising Science (Smithsonian.com/science) will debate which one, Darwin or Lincoln, was more important. Silly question? Maybe. But the sparks are illuminating. Please join in.

The fight to achieve racial equality in the United States is the subject of "The Freedom Riders", by associate editor Marian Smith Holmes. It's based on a new book of photographs and interviews, Eric Etheridge's Breach of Peace, about some of the men and women who protested segregated bus depots across the South in 1961. Some were beaten; most were jailed, and in shameful conditions.

"I was excited about having the opportunity to talk to some of those people who sat on the buses, who risked their lives, who endured in the dirty jails," Holmes says. "It made me feel very grateful and very humble. There was a feeling that we're all in this together, and I think we need to hang on to that idea, that whatever struggle one group might have, it's actually a struggle for all of us."

Terence Monmaney is the executive editor.
Comments
Dear Sir. Science and scientific spirit developed without ideological or religious bias, lead to the clarification of the mysteries of life and go out every day of ignorance, that appeal to the rites to fill the void of what they do not understand. Alonso Sarmiento Llamosas http://alonsosarmiento.googlepages.com

Posted by Alonso Sarmiento on January 24,2009 | 10:59PM

Don’t Forget the Owls

2009-01-23T18:32:00.000-08:00

Researchers seeking the true meaning of wisdom look to the Greeks, ant colonies and ... Sylvia Miles?

By Jerry Adler | NEWSWEEK
Published Jan 10, 2009
From the magazine issue dated Jan 19, 2009

The quest for wisdom is as old as Socrates, but it's also an up-to-the-minute economic indicator. A contrarian one: when things are going well, you don't have to go searching for wisdom. It streams nonstop over CNBC, its avatars sit smugly atop the Forbes list of billionaires and each day it proves again the eternal truths of the free market. Then in due course things go to hell; the sages and gurus humbly confess their ignorance to Congress or a grand jury, and the search for new paradigms begins. Tellingly, scholars date the modern scientific study of wisdom to the work of the American psychologist Vivian Clayton in the malaise-ridden 1970s. Clayton devised the first empirical tests for wisdom, which she defined as the ability to acquire knowledge and analyze it both logically and emotionally—picking up on the work begun by Socrates, around the time the Peloponnesian War began to turn into what we would call a "quagmire."

So it's no coincidence that several dozen researchers in fields ranging from neuroscience to art, music and law have just received wisdom-seeking grants under the auspices of the University of Chicago. The $2.7 million program, funded by the Templeton Foundation, is called Defining Wisdom, a name that implies the researchers will know what they were looking for once they find it. Wisdom, according to Robert J. Sternberg of Tufts University, the author of several books on the topic, is still an obscure field with minimal academic cachet. (Clayton dropped her research in 1982; it was carried on at the Max Planck Institute in Berlin until a few years ago.) "The current state of the world is a good example of why wisdom research is needed," he adds. "Look at Robert McNamara or Donald Rumsfeld, brilliant people without wisdom, who get into power and make a mess of things."

With so much at stake, the program's directors, psychologists John Cacioppo and Howard Nusbaum, dismissed the traditional approach to wisdom research, which involves sending grad students with tape recorders to nursing homes and small-town barbershops. So they cast their nets wide and deep into the pools of academe. The 38 proposals they approved include ones aimed at finding wisdom in computer algorithms ("Data Compression as a Mathematical Measure of Wisdom") and in classical literature ("The Price of Wisdom: Community and the Individual in Greek and Roman Poetry"). Starting at the beginning, one scholar observes that "language is the medium by which wisdom-related knowledge is usually conveyed." That sounds self-evident, but another scientist proposes to "explore music as a form of wisdom, by looking more closely at aspects of deep musical experience," and a third nominates pheromones ("The Wisdom of the Ant: The Role of Experience in Sociality and Aggression"). "We're trying to think out of the box," says Nusbaum. "Does it even make sense to ask questions about an animal model for wisdom? We have no clue."

And if ants can teach us something about wisdom, why not Sylvia Miles? An actress notorious for frittering away her career with nonstop partying seems an unlikely source of guidance. But in a new book titled "How to Live: A Search for Wisdom From Old People," the essayist Henry Alford, the Socrates of dilettantes, mines Miles's life for whatever gems of wisdom she might have picked up at Studio 54, along with whatever else she picked up there. In the fullness of age, does she regret dumping a plate of cold cuts on the critic John Simon in revenge for a bad review? Not a chance. If you want reassurance that it's already too late to reform, Alford is the philosopher for you. If Miles isn't your ideal of sagacity, he also interviews the literary theorist Harold Bloom, who warns him, forebodingly if obscurely, that wisdom is "a very dark topic." Perhaps he took a beating on his 401(k), too.

Cacioppo and Nusbaum dismiss quibbles about the inherent circularity of searching for wisdom at the same time as defining it. But they have some preconceptions about what they expect to find. They see "wisdom" in part as a corrective to the "rational choice" paradigm of decision making, the foundation of free-market economics. Rational choice holds that everyone's happiness is best served when people maximize their short-term individual gains, even at the expense of the broad interests of society or the long-term future. That is precisely opposite the approach of, well, ants, who are entirely indifferent to their individual fates, functioning as interchangeable parts of what the entomologists Bert Hölldobler and E. O. Wilson call, in their new book, "The Superorganism." Ant colonies have good years and bad ones, but they don't, as a rule, overexpand out of reckless greed and then collapse in economic crisis. So watch your step. The next Alan Greenspan may be under your feet.

Member Comments
Posted By: lawyerinperu @ 01/20/2009 9:16:47 PMDear sir.
You have touched on a topic interesting, important, profound and extremely beautiful. The Greeks called it "Sophia", the personification of wisdom (in Greek "??????????).
I am of the opinion that wisdom involves many qualities such as living at peace with itself and with others, do good, be fair and straight, look for life in all its aspects, to love God, there is a condition that summarizes all the other: Being able to be happy today and now. Learning to be happy now is extremely difficult to achieve today, without expecting anything more of the future or be in lament of the past. Be happy now, that is the essence of wisdom.
Alonso Sarmiento Llamas (Peru)
http://alonsosarmiento.googlepages.com

Top Peru Court: You Can’t Fire Him, He’s Drunk!

2009-01-23T18:11:00.000-08:00

Top Peru Court: You Can’t Fire Him, He’s Drunk!
Posted Jan 15, 2009, 03:21 pm CST
By Martha Neil

In a decision criticized as a dangerous precedent, the top court in Peru has decided that on-the-job intoxication isn't necessarily sufficient cause for immediate termination.

Janitor Pablo Cayo must be reinstated by the municipality of Chorrillos, the Constitutional Tribunal ordered, and Justice Fernando Calle explained yesterday that the court considered his termination for on-the-job intoxication excessive because no one was offended or hurt, reports Reuters.

Unlike the U.S., where workers without express contractual protections often can be fired at will by their employers, many other countries ordinarily require appropriate cause for terminations.
Comments
Report Abuse
Posted by Alonso Sarmiento - 1 second ago

Dear sir.
The decision of the Constitutional Court of Peru, may cause surprise, because he ordered to an employer to reinstate in his work to a dismissed worker who was fired because having been with a breath alcohol. However, it is a particular position on a specific case before the court and that is related to the abuse of law. An an employer can not dismiss an employee with abuse of power. That’s what the Court say in brief in their ruling. And from that standpoint, there is no way to be against this ruling. That does not mean that from this ruling, the empleoyers can´t fire drunk workers. That is a lightness that have spread the news.
Greetings.
Alonso Sarmiento Llamosas
http://alonsosarmiento.googlepages.com

Follow the Thought Leader

2008-10-24T17:55:00.001-07:00

October 23, 2008
Reality Check – Looking for a Few Great Leaders| posted by Cy Wakeman We are certainly in challenging times in our business world today. We have been in challenging times in the past and – let me make a profound prediction – we will be faced with challenging times again at some point in the future. Here’s the reality check: the fact that times are challenging is not the source of our pain. The source of our pain is the absence of great leadership based in reality.
We must be willing to admit that our way of leading is simply not working and not creating the results or the quality of life that we would like. These times call for a new type of leader. We need leaders who are willing and able to recreate mindsets in order to change circumstances and lead in a new and revolutionary way.
The revolution begins with a few good leaders practicing Reality-Based Leadership. A Reality-Based Leader is one who is able to quickly see the reality of the situation, conserve precious team energy and use that energy to impact reality. Better yet, a great Reality-Based Leader anticipates the upcoming changes and capitalizes on the opportunity inherent in the situation. As with all great revolutions, a manifesto is needed. So here it is … Reality-Based Leadership is a new wave of leadership based on the following principles:
We, as Reality-Based Leaders, Refuse to Argue with Reality.
The average leader spends two hours a day arguing with reality, an argument you will surely lose, but only 100 percent of the time. Reality-Based Leaders work instead to quickly identify the facts of the situation and focus on following simple instructions – doing the next right thing that would add the most value.
We, as Reality-Based Leaders, Greet Change with a Simple “Good to Know.”
Today’s leaders seem to greet each and every change with surprise, panic and blame.Even change that should be anticipated often elicits a reaction of surprise, shock or disbelief. The moment of surprise is followed by anxiety or a low level of panic about how to lead forward, ending with a dose of blame focused on others’ lack of leadership, poor decisions or failures. Reality-Based Leaders greet change with great anticipation for the possibilities and a simple “good to know.” They move quickly to understand the new reality and search for ways to deliver results in spite of the facts or limited circumstances.
We, as Reality-Based Leaders, Value Action over Opinion.
In the past, leaders were encouraged to make sure employees felt that their opinions counted – as if opinions created value in organizations. Reality-Based Leaders are clear that the highest value the talent under their leadership can offer is to implement with excellence. To deliver results time after time, leaders need the ability to resist editorializing and instead move to lead in the execution of imperfect plans with excellence. In a nutshell, leaders add the most value when they understand that action, rather than opinion, adds the greatest value.
We, as Reality-Based Leaders, Work with the Willing.
A leader operating under today’s worn-out philosophies spends, on average, 80 hours each year on a single person in a chronic state of resistance. The average return on this hefty investment? At the most, 3 percent. By working with the willing, efforts move forward and others join up or move outside of the organization either by choice or behavior. Reality-Based Leaders play favorites – they favor those who use their talents to work with, not against, the organization.
We, as Reality-Based Leaders, Lead First and Manage Second.
In changing and challenging times, ineffective leaders are tempted to work diligently to perfect the circumstances of their employees. This approach has put managers in charge of creating engaging environments and has led to a great deal of over managing and under leading. Reality-Based Leaders know that engagement is correlated to personal accountability. Instead of working to perfect the circumstances of their people, Reality-Based Leaders work to “bulletproof” their employees, creating employees so resilient that they are unfazed by the challenges at hand.
We, as Reality-Based Leaders, Make the News, Rather Than Report the News.
It is easy to report the news, update the team on the challenges at hand and make doomsday predictions about the future. Assessing the situation in the past tense and critiquing others’ responses to the circumstances is easy, but not effective. Reality-Based Leaders instead work to solve problems.
Intrigued? Stay tuned to this blog as I delve into the details.
Remember, Cy rocks and you rock. Lead on my friend.

Recent Comments | 1 Total
October 24, 2008 at 8:52pm

Alonso Sarmiento Dear Sir.
It is absolutely true what You say. Things do not just planning it; but doing. Unfortunately this is understood when one already gained experience through years of struggle against conformism.
Alonso Sarmiento Llamosas
http://alonsosarmiento.googlepages.com

Ten Forecasts for the next 20 years

2008-10-07T22:48:00.000-07:00

Forecast # 1: Everything you say and do will be recorded by 2030. By the late 2010s, ubiquitous unseen nanodevices will provide seamless communication and surveillance among all people everywhere. Humans will have nanoimplants, facilitating interaction in an omnipresent network. Everyone will have a unique Internet Protocol (IP) address. Since nano storage capacity is almost limitless, all conversation and activity will be recorded and recoverable. — Gene Stephens, “Cybercrime in the Year 2025,” THE FUTURIST July-Aug 2008.
Forecast #2: Bioviolence will become a greater threat as the technology becomes more accessible. Emerging scientific disciplines (notably genomics, nanotechnology, and other microsciences) could pave the way for a bioattack. Bacteria and viruses could be altered to increase their lethality or to evade antibiotic treatment.— Barry Kellman, “Bioviolence: A Growing Threat,” THE FUTURIST May-June 2008.
Forecast #3: The car's days as king of the road will soon be over. More powerful wireless communication that reduces demand for travel, flying delivery drones to replace trucks, and policies to restrict the number of vehicles owned in each household are among the developments that could thwart the automobile’s historic dominance on the environment and culture. If current trends were to continue, the world would have to make way for a total of 3 billion vehicles on the road by 2025. — Thomas J. Frey, “Disrupting the Automobile’s Future,” THE FUTURIST, Sep-Oct 2008.
Forecast #4: Careers, and the college majors for preparing for them, are becoming more specialized. An increase in unusual college majors may foretell the growth of unique new career specialties. Instead of simply majoring in business, more students are beginning to explore niche majors such as sustainable business, strategic intelligence, and entrepreneurship. Other unusual majors that are capturing students' imaginations: neuroscience and nanotechnology, computer and digital forensics, and comic book art. Scoff not: The market for comic books and graphic novels in the United States has grown 12% since 2006. —THE FUTURIST, World Trends & Forecasts, Sep-Oct 2008.
Forecast #5: There may not be world law in the foreseeable future, but the world's legal systems will be networked. The Global Legal Information Network (GLIN), a database of local and national laws for more than 50 participating countries, will grow to include more than 100 counties by 2010. The database will lay the groundwork for a more universal understanding of the diversity of laws between nations and will create new opportunities for peace and international partnership.— Joseph N. Pelton, "Toward a Global Rule of Law: A Practical Step Toward World Peace," THE FUTURIST Nov-Dec 2007.
Forecast #6: The race for biomedical and genetic enhancement will — in the twenty-first century — be what the space race was in the previous century. Humanity is ready to pursue biomedical and genetic enhancement, says UCLA professor Gregory Stock, the money is already being invested, but, he says, “We'll also fret about these things — because we're human, and it's what we do.” — Gregory Stock quoted in THE FUTURIST, Nov-Dec 2007.
Forecast #7: Professional knowledge will become obsolete almost as quickly as it's acquired. An individual's professional knowledge is becoming outdated at a much faster rate than ever before. Most professions will require continuous instruction and retraining. Rapid changes in the job market and work-related technologies will necessitate job education for almost every worker. At any given moment, a substantial portion of the labor force will be in job retraining programs. — Marvin J. Cetron and Owen Davies, "Trends Shaping Tomorrow's World, Part Two," THE FUTURIST May-June 2008.
Forecast #8: Urbanization will hit 60% by 2030. As more of the world's population lives in cities, rapid development to accommodate them will make existing environmental and socioeconomic problems worse. Epidemics will be more common due to crowded dwelling units and poor sanitation. Global warming may accelerate due to higher carbon dioxide output and loss of carbon-absorbing plants. — Marvin J. Cetron and Owen Davies, “Trends Shaping Tomorrow's World,” THE FUTURIST Mar-Apr 2008.
Forecast #9: The Middle East will become more secular while religious influence in China will grow. Popular support for religious government is declining in places like Iraq, according to a University of Michigan study. The researchers report that in 2004 only one-fourth of respondents polled believed that Iraq would be a better place if religion and politics were separated. By 2007, that proportion was one-third. Separate reports reveal a countertrend in China. — World Trends & Forecasts, THE FUTURIST Nov-Dec 2007.
Forecast #10: Access to electricity will reach 83% of the world by 2030. Electrification has expanded around the world, from 40% connected in 1970 to 73% in 2000, and may reach 83% of the world's people by 2030. Electricity is fundamental to raising living standards and access to the world's products and services. Impoverished areas such as Sub-Saharan Africa still have low rates of electrification; Uganda is just 3.7% electrified. — Andy Hines, “Global Trends in Culture, Infrastructure, and Values,” Sep-Oct 2008.

Nanotechnology Breakthroughs
of the Next 15 Years
Nanotechnology — the manipulation of materials and machines at the nano-scale — one billionth of a meter — promises exciting new developments. Interviews with a group of nanotechnology experts yielded this list of likely developments:

Two to five years from now:
Car tires that need air only once a year.
Complete medical diagnostics on a single computer chip.
Go-anywhere concentrators that produce drinkable water from air.
Five to 10 years
Powerful computers you can wear or fold into your wallet.
Drugs that turn AIDS and cancer into manageable conditions.
Smart buildings that self-stabilize during earthquakes or bombings.
10 to 15 years
Artificial intelligence so sophisticated you can't tell if you're talking on the phone with a human or a machine.
Paint-on computer and entertainment video displays.
Elimination of invasive surgery, since bodies can be monitored and repaired almost totally from within.
You'll see remarkable developments now on the horizon, such as:

New double-duty power plants could ease the water crisis. A new process to remove salt from seawater and make it drinkable can be powered by the excess heat from electric power plants. A small operating prototype shows that tapping the waste heat from a 100-megawatt power plant could produce 1.5 million gallons of fresh water daily. The cost would be only $2.50 per 1,000 gallons — well below that of conventional desalination methods.
New System Reads Body Language — The truth is in your eyes — and your mannerisms. A system developed by University of Manchester scientists uses a camera and artificial intelligence to process patterns of non-verbal behavior. The system can assess levels of deception, aggression, exhaustion and even the initial stages of Parkinson's disease.

You'll see remarkable developments now on the horizon, such as:
The GNR Revolution — The convergence of genetic engineering, nanotechnology and robotics may change the very meaning of “human” as we shape our evolutionary destiny.
A New Strategy for Globalization — As business breaks down borders and corporations roam the world in search of profits, we need to be sure the international system is built on a foundation of cooperation and consent.
Learning for Ourselves: A New Paradigm for Education — Why learning should be taken out of the hands of antiquated school systems and put into the hands of learners, according to a leading education consultant.
New double-duty power plants could ease the water crisis. A new process to remove salt from seawater and make it drinkable can be powered by the excess heat from electric power plants. A small operating prototype shows that tapping the waste heat from a 100-megawatt power plant could produce 1.5 million gallons of fresh water daily. The cost would be only $2.50 per 1,000 gallons — well below that of conventional desalination methods.
New System Reads Body Language — The truth is in your eyes — and your mannerisms. A system developed by University of Manchester scientists uses a camera and artificial intelligence to process patterns of non-verbal behavior. The system can assess levels of deception, aggression, exhaustion and even the initial stages of Parkinson's disease.

A Quest for the Perfect Potato

2008-09-06T18:26:00.001-07:00

Martin Mejia / AP Pervuvian farmers have surprised the experts by adapting farming methods to rising temperatures.
Experimenters: Farmers in Huancavelica plant potatoes 3,950 meters above sea level
By Lucy Conger | NEWSWEEK
Published Jul 26, 2008 From the magazine issue dated Aug 4, 2008
Peru is considered to be one of the most vulnerable countries in the world to climate change. On the steep slopes of Chopcca, a community of 10,000 residents in the Andes, the rains come later, don't last as long and end more abruptly than they did only a few years ago. Frosts and hail hit earlier and more frequently. Fewer clouds drift by to moderate the extremes of temperature. Water shortages loom. In May, Mount Pastoruri, formerly a tourist attraction in the central state of Ancash, was removed from the list of snowcapped peaks because a third of its white cover has melted away. A 2002 study by the Tyndall Centre for Climate Change Research in Britain found that the country's fragile mountain ecosystems, dependence on glaciers for water and extreme poverty make the job of adapting to the changes of global warming particularly difficult.
In the past few years, however, a funny thing happened on the way to catastrophe. Peruvian peasants have surprised the experts by coping with the warming. Small farmers in the Andean highlands have responded to changes in weather patterns by altering their planting season and varying their crops. Vulnerable mountain farmers are applying ancient strategies of risk diversification and a combination of homegrown experimentation and scientific know-how to adapt to the new weather patterns and their side effects.
It's difficult to overstate the challenge that these farmers face: a destructive synergy of climate change, overpopulation and land degradation runs the 8,000-kilometer stretch from Venezuela to Chile. As natural pasture is turned over to food crops, and population pressures decrease the amount of time fields lie fallow, virgin soils quickly grow depleted of nutrients and livestock go undernourished. "All the factors that create habitat degradation are made worse by climate change," says Stephan Halloy, director of the Andes biodiversity science unit for Conservation International.
The Andean farmers have felt the heat. Because of warming temperatures, crops now grow at higher altitudes than they did a few years ago. Farmers in Chopcca used to grow maize at 3,300 meters above sea level, but now plant at 3,600 meters. Pests have followed the crops to higher altitudes. In a remote corner of Cuzco province, native varieties of potatoes are being attacked by late blight, a fungus-like water mold. The Andean potato weevil, or potato white grub, eats potato leaves, and its larvae bore into the tubers underground. "We're in a war here with the Andean weevil," says Víctor Soto Ataypoma, mayor of Ccasapata, a village in Chopcca.
The campesinos have a natural weapon against climate change: the rich diversity of crop strains that flourish in the Andes's diverse system of habitats. Of the 34 known varieties of climate, Peru is home to 28 of them, and 70 percent of the country is covered by rain forest. Peru has 2,700 native varieties of potato and 35 types of corn, suitable to different climatic circumstances, including length of growing season, water and nutrient requirements, and pest resistance. Plant breeders and agronomists have stepped in to help Peru's farmers take advantage of this resource. In Chopcca, Yanapai, an agricultural NGO, has expanded the stock of native varieties of potato and tested organic methods for controlling pests. "Keeping alive a diversity of native varieties in a seed bank and complementing them with improved seeds should help the farmers adapt to climate change," says María Scurrah, a Cornell-trained plant breeder and coordinator of Yanapai.
This type of assistance has proved fruitful for other troubled farmers. In Cuzco province in 2003, when the temperature rose just enough to allow late blight to develop, farmers lost 90 percent of their harvest on 400 hectares. With some help from the International Potato Center in Lima, part of a worldwide network of research centers focused on staple crops, the farmers tested a score of potato varieties. They settled on two hybrids that were best adapted to local conditions and were resistant to blight. "Now that they produce enough for themselves and to sell at market, they are going to have a cash income," says Manuel Gastelo, a plant-breeding researcher at the International Potato Center.

A similar willingness to adapt has helped farmers cope with a shortened growing season for potatoes. In Huancavelica, the harvest this year was completed on June 2, nearly three weeks ahead of the usual harvest date of June 21, which didn't give the crop enough time to mature. "The potatoes are small," says Víctor Palomino Matamoros, 56, gazing at a communal field planted at 4,300 meters above sea level. Farmers in other parts of the country report that native potatoes now must be harvested as much as two months earlier than they traditionally have been. Fortunately, highland farmers learned from their ancestors to plant their crops in plots that are staggered at different altitudes. That flexibility, together with a modern penchant for experimentation, has allowed them to fine-tune their crops to prevailing weather patterns. In Chopcca, farmers experimented with 125 local varieties of potato. Farmer Juanita Quispe planted one variety last year on Dec. 8 "as a test," she says, and harvested nothing. Then her neighbor, Soto Ataypoma, found that wallash and ducis varieties mature more rapidly, "in three or four months," she says. By focusing on these two varieties, village farmers have increased their yields.

Adapting to shifting climate, of course, can be a hit-or-miss affair. On the one hand, potato farmers have taken advantage of the shorter growing season for potatoes by planting more cereal crops, such as corn, which require less rainwater. On the other hand, squeezing cereal crops into whatever growing season is available doesn't always work; crops can fail to fill out, leaving puny grains. Extreme cold, which stunts growth, can also foil the best-laid plans. During this year's growing season, temperatures were so cold that cow manure used as fertilizer never rotted to combine with and enrich the soil.

This being the international year of the potato, Peru's farmers have gotten a publicity boost. Agronomists, agribusiness and supermarket chains in Peru have promoted native varieties of potatoes. Frito-Lay has led the way with its Papas Andinas, made from traditional Andean varieties with marbled markings and sold as a premium product in high-end supermarkets. To sell to multinational food companies, Andean farmers would have to produce more consistently plump and sturdy potatoes. Adapting to global warming is the only path open to the Peruvian farmers. When the history of climate change in the early 21st century is written, they will deserve a special mention.

Member Comments Posted By: lawyerinperu @ 09/06/2008 12:44:38 AM
Comment: Sir.
Even when the narrative that makes Lucy Conger of the efforts of Peruvian farmers to continue planting and harvesting potatoes, is somewhat idealistic, obviating the harsh life that have campecinos to 3600 meters above sea level, without much variety of foods Without sanitary facilities, without any form of communication, without roads or telecommunications, schools, etc., what is most troubling of this story is that an enormous extension of arable land on the coast of Peru and in the jungle, which are being devoted to plant alien species to produce fuel, displacing native plants that for thousands of years kept the ecosystem of the area. It is imperative that developed countries take a firm decision not to buy or use combustibes obtained in land where native crops have been displaced to get bio fuel.
Alonso Sarmiento Llamosas, Lima, Peru
http://alonsosarmiento.googlepages.com

Life on the Amazon Rives, in Perú

2008-09-06T18:06:00.000-07:00

Wednesday, Aug. 06, 2008 By CHRISTOPHER TAYLOR GO WILD:
As the MV Aqua cruises the Peruvian Amazon, travelers can see black caimans, howler monkeys and pink dolphins.
Most travelers associate Brazil with the Amazon and Peru with the Andes. Yet, some two-thirds of Peru is actually covered by dense Amazonian rain forest. Since it's far too massive to experience by air, the best way to take in Peru's Amazon basin is on the water — sailing along its vast expanse in a riverboat. And while there are many traditional boats that allow you to cruise the river in luxury, the new MV Aqua will give your trip a touch of cool.
From the port city of Iquitos (about an hour by plane northeast of Lima), the 12-cabin Aqua delves deep into the 5-million-acre (2 million ha) Pacaya Samiria Reserve in placid pursuit of rare pink dolphins, giant river otters and elusive black caimans. The three-, four- and seven-day journeys include daily excursions on skiffs — manned by guides from the local Bora and Yagua tribes — into remote Amazon villages.
The Aqua's thoroughly modern design is by Lima-based architect Jordi Puig, who relied on the Amazon's natural bounty for both innovation and inspiration. Decks, floors and furnishings on the 130-ft. (40 m) vessel are crafted from Amazonian hardwoods such as shihuahuaco, cabreuva and caoba. Gray slate from Brazil was used to finish cabin walls, and the bedding is made from Peruvian cotton. There are no TVs in the cabins — only huge windows that provide panoramic views: "Nature's plasmas," says Aqua CEO Francesco Galli Zugaro. Meanwhile in the kitchen, baby-faced Peruvian chef Pedro Miguel Schiaffino — veteran of two Michelin-starred restaurants in Italy — sources many of his ingredients (from fat river escargots to Amazonian basil) directly from Iquitos' Belém market to create dishes such as bass ceviche with sweet plantain and hearts-of-palm soufflé.
When you dock back in Iquitos after an adventure in the Peruvian Amazon, you may need help getting your land legs; maybe go for a hike in the Andes, just a short plane ride away.

First Buzzed By:
Alonso Sarmiento

Amazonas River in Perú
Sir.
As a Peruvian, I appreciate the description that makes Christopher TAYLOR of our Amazon River; because it actually its a beautiful scenery and the travel by river on a boat its an unforgettable experience and Iquitos city is friendly to the extreme. htt://alonsosarmiento.googlepages.com

They Teach Happiness at Harvard

2008-08-28T18:06:00.000-07:00

In Tal Ben-Shahar's positive psychology class, students learn that happiness isn't just an accident, it's a science
by Matt Mabe

An entire industry has been built up around the pursuit of happiness. A stroll past any bookstore window demonstrates the explosive popularity of the feel-good, self-help movements of recent years. And whether these products are genuine paths to ultimate happiness or just pleasure-peddling scams, the trend seems likely to hold.

Now, even the Ivy League is getting in on the act, layering serious academic research onto the pop-psychology phenomenon to develop a "science of happiness." Known as "positive psychology," the field was pioneered at the University of Pennsylvania and came to Harvard a decade ago when an elective course on the topic was first taught.

Why Students Flock to Class
Since then, Positive Psychology has become the most popular undergraduate course at Harvard, eclipsing the previous longtime title holder, Introduction to Economics. The success of the course, which focuses on the psychological aspects of a fulfilling and flourishing life, indicates a growing desire by young people to make their lives more meaningful, says Tal Ben-Shahar, a Harvard psychologist who has taught the class since 2004.

"Students are attracted to this kind of class because they feel that it's making a real difference in their lives," says Ben-Shahar, whose charismatic personality and compelling lectures helped drive explosive growth in enrollment after he began teaching the course. Ben-Shahar says the quest for happiness has always been an innate human yearning, dating back to the times of Confucius and Aristotle. "The difference today is that for the first time we have a science of happiness."

To be sure, the course has its doubters. James Coyne, a psychologist and researcher at the University of Pennsylvania School of Medicine says that Harvard's class and others like it offer little more to increase happiness than does a motivational speaker on a lecture circuit. The sense of euphoric bliss after a compelling presentation is natural, he says, but rarely lasts. "People always readjust to their baseline and go back to normal," says Coyne.

But the point of Positive Psychology is to combine the fun of popular psychology with academic rigor. The course's syllabus reads like a 12-step recovery program with lesson titles such as "Can We Change?" "Setting Goals," "Relationships," and "Self-Esteem." But the list of course readings dispels any notion that the class is what Harvard students call a "gut," or easy credit. Articles, essays, and research reports from vaunted science publications like the Journal of Cognitive Psychotherapy and Psychology Today are juxtaposed with Ben-Shahar's own book on the subject, Happier: Learn the Secrets to Daily Joy and Lasting Fulfillment.

Despite the heavy workload, the popularity of Positive Psychology has soared. In 2006, more than 850 students filed into the auditorium for the semester's first lesson, up from just 20 in 1999 when the course was launched. Many credit the class's success to Ben-Shahar himself, whose on-campus popularity coupled with media attention has made him a quasi-celebrity in the field of psychology. (He even appeared on The Daily Show with Jon Stewart in 2007.) But Ben-Shahar insists it's the science that is the real draw.

A Skeptic's Conversion
Elizabeth Johnston, who was in Ben-Shahar's section in 2004, began the course with skepticism. "I was one of the naysayers," she recalls. "I said this is crazy, I can't believe this; I want a real psychology class." But as the semester progressed, Johnston says she became a believer. She was fascinated partly by the course literature and message, and partly by Ben-Shahar's colorful personal anecdotes, which she says were inspirational.

Before taking Positive Psychology, Johnston was obsessed with grades and focused completely on her future. She says the class taught her to enjoy living for the moment and to express gratitude more openly, among other things. "A lot of people think positive psychology means walking around with a smile on your face," says Johnston, who went on to earn a master's degree in positive psychology at the University of Pennsylvania. "It's not that. It's learning to take the good with the bad and learning to make the most of your life."

The phenomenon of positive psychology appears to be catching on. Today, more than 200 courses on the subject are taught across the U.S. and Ben-Shahar has given seminars about it as far away as China. "The role of a university is ultimately to improve the quality of people's lives," he says, adding that that is precisely what positive psychology is intended to do.

Matt Mabe is a reporter in BusinessWeek's Paris bureau .

Reader Discussion
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Alonso Sarmiento

Aug 29, 2008 1:12 AM GMT
Dear Sir. Usually we remember those happy times of childhood, when we had no worries and life was simple for us under the care of our fathers and enjoying the games and friends. Well the saying goes "all times past was better." A major concern of adults to have. Having to live, having to survive or having to waste. Even the Declaration of Independence and the universal laws propose that human beings seek the "pursuit of happiness." However, often stays in the way the enjoyment of life and we just satisfied with the enjoyment of things. The religion and philosophy help us greatly to find happiness, even when our lives seem filled with suffering; because being happy is more a state of consciousness that a body enjoyment. http://alonsosarmiento.googlepages.com
Welton

Aug 21, 2008 3:10 PM GMT
I'm a rising senior at Harvard and I've never heard anyone call an easy credit class a "gut".
Jerry C. Welsh

Aug 21, 2008 12:38 PM GMT
To be sure, there are attitudes and practices underlying the feeling of happiness. But that doesn't mean that happiness is achievable through science. There's a lot of luck and timing in happiness and there's no easy way to overcome those two variables.
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Who Feels Successful?

2008-07-23T18:13:00.000-07:00

A person once asked me what it feels like to be successful.
I didn't know how to respond because I don't regard myself as a success. A scrambler, yes. A striver, certainly. A success? I'm not so sure about that.
The more I learn about various subjects, the more I'm humbled by the vast amount of material I haven't even studied, much less mastered. Others may see what has been done while I see all that remains undone.
There is another aspect to this feeling: the sense that to declare oneself a success is a bit smug. Smugness can be the prelude to decline. Many a dunce is a self-proclaimed genius.
This doesn't mean that the achievement of various goals cannot be appreciated. That is not only wise but necessary if the demoralization of the treadmill is to be squelched. Watching the clouds, having a good cup of coffee, and quietly reviewing how something was achieved can be as good as it gets.
There is another crucial point and I draw it from the Army's three elements of leadership:
Be - Know - Do.
Too often, society defines success in the realm of "Do" instead of "Be." In assessing our own progress, we need to avoid that trap and recognize that making progress both in Being and Doing is important. Our internal advances may well outweigh any external ones.
There is much wisdom in the old line that "He who conquers himself is greater than he who takes a city."
4 Comments:
At 7:25 AM, Eclecticity said...
OFTB.
At 10:19 AM, supercynic said...
"The more I learn about various subjects, the more I'm humbled by the vast amount of material I haven't even studied, much less mastered. Others may see what has been done while I see all that remains undone."Somehow you managed to get inside my head and put my exact thoughts down in the written word. I couldn't agree more.
At 5:07 PM, Michael Wade said...
Eclecticity,Thanks much!Supercynic,I think we are not alone in such feelings. Those thoughts, however, may ultimately be a strength.
At 1:11 PM, Alonso Sarmiento said...
Like everything in the life, successful being is relative, following several situations like the cultural surroundings, the historical stage in which lives or has lived, the age of the individual, its beliefs ethical morals and, its ambitions or projects, as well as the form in which the others assess these situations. Perhaps that one could be considered successful Who did not refuse to live. That is to say, that one that took advantage of every moment and each resource that gave the life mainly him and, lived.

How The Long Tail Applies to Law Firms

2008-07-23T18:04:00.000-07:00

For the next issue of Law Technology News Monica Bay, Editor-in-Chief, asked me how law firms can apply the lessons of the new book The Long Tail, Why the Future of Business Is Selling Less of More by Chris Anderson. This topic will be the cover story of the next issue. With her blessing, here's a sneak preview of my comments:
As I see it, a new book proves that the day of the full-service, general practice law firm is over. Clients don’t want generalists, whom they see as jacks-of-all-trades, masters-of-none. They want an expert in their particular problem. This is very good news for litigation boutiques, IP firms and specialty practice firms.
Clients want the needle in the haystack, the lawyer who knows how to solve their precise problem, and thanks to the Web, clients can find them. For lawyers this means:
It’s time to examine your client base and identify the industries in which the firm has experience (not the strong practice groups). Clients, even the GC, see themselves as a member of an industry, not a customer of a practice group. Industry experience is one of the first things clients look for on a law firm Web site. Many law firms make the mistake of “marketing their organization,” that is, using their internal administrative structure to shape their marketing and structure their Web sites. This is a mistake. On the other hand, firms that market themselves as industry experts are “organizing around the market,” and presenting themselves in the way clients buy.
It’s time to identify the firm’s high-margin, most-profitable practices and start blogs about them. The prime example is the blog of Dennis Crouch, of Counsel at McDonnell Boehnen Hulbert & Berghoff in Chicago. The blog, "Patently-O," gets 50,000 visitors per week. The blog has brought in Fortune 500 companies and referrals from lawyers he’s never met. He makes a point about writing about client interests, not about the services the firm has to offer.
The Long Tail illustrates why we no longer watch the 11 PM news and why we don’t use the Yellow Pages anymore. People can get all this information online, immediately and up-to-the-minute. Law firms that make themselves findable by pinpoint Web searchers will thrive.

Comments

Interesting that anon chose to hide their identity, because they are dead wrong and have completely missed the point of the Long Tail (assuming they read it). Marketing yourself as a specialist in dispute resolution is, in effect, saying that you are a lawyer, but it says nothing about your expertise, experience, personal interests, big cases you've won or negotiated for clients, etc.
At the end of the day, most of us want to know that the people we work with are multi-talented, but when we go looking to solve a problem, we look for someone who has solved the exact problem before. Since marketing is about describing how you solve customer problems, a narrowly focused problem domain that is described in the customer's words is much more likely to get you qualified leads and enthusiastic customers than saying "I'm a generalist."
For example, let's say I was just attacked by my neighbor's pit bull. Do you think I'm going to go online and type in 'dispute resolution' as a query? If yes, I question whether you have the intelligence to handle any case I need litigated. Much more likely that someone will search for 'pit bull lawsuit' or 'vicious dog attack'. If one lawyer has talked about the evidence that a plaintiff needs to be successful in such a case in their blog, and shows up in the search as a result, which lawyer do you think gets the case - the blogger or the dispute resolver? I'll guarantee you that the generalist doesn't even get noticed, let alone get the call.
Unfortunately for anon, their thinking is like 99% of the rest of the world. It is focused on self - it is a features-oriented approach to selling, and in a world of differentiation, it simply doesn't work. Customer-centric marketing focuses on how the buyer thinks about the problem, which is almost never in terms of general skills and attributes. Of course, if all lawyers advertise themselves as generalists, then no one wins, but if only a few advertise as specialists, everyone else loses. It's simply the way the world works.
Posted by: Paul August 16, 2006 at 08:26 AM
I agree with Alonso. The same procedural issues dominate 90% of all litigation, whether it be family law, commercial, torts, environmental, etc. That a lawyer who "specializes" in something such as, say, adoptions, or dog bite cases, or "complex" contract disputes, is necessarily any more effective than a "generalist" litigator is a farce. The issues that appear in cases accross the board are disputes over the rules of procedure and evidence. A good lawyer, who deserves to get hired by a client, can learn any substantive area (except perhaps extremely complex areas such as tax) in 8 to 10 hours with legal encylopedias or online research.
A lawyer should market herself as a "specialist" in dispute resolution and navigating the government-imposed "law" of procedure to get to the desired end result. Whether it is a divorce, environmental permitting dispute, contract dispute, is irrelevant to a good lawyer.
Smart clients can figure that out. In other words, a good lawyer can be a "specialist" in 12 different layperson "practice areas," because we lawyers describe our practice areas as overly-fact-based, to allow communication with laypersons, even though the facts or "type" of case are less important as far as getting to the end result.
Posted by: anon August 10, 2006 at 09:59 AM
I am completely in agreement with you in the sense that the clients look for a lawyer who solves his specific problem. I consider that always it had thus to be, from the time of the origin of the lawyer profession; nevertheless, it is not necessary to forget that the lawyer is a professional in Law and must also know the other areas that concern the case which they put to its care. I think that the indispensable thing in a lawyer is its capacity of analysis and criterion, as well as a method and disciplines in application of the Law. In order to arrive at it, the lawyer to have to read to the classic ones, to study the reasoning applied to previous cases and to exert its capacity of imagination to find the specific utility for its client.
Posted by: Alonso Sarmiento August 10, 2006 at 09:45 AM

Susskind: Are Lawyers Becoming Obsolete?

2008-07-23T17:56:00.000-07:00

Law Practice
Posted Oct 23, 2007, 01:40 pm CDT By Martha Neil
A well-known lawyer and information technology expert is publishing a sequel to his decade-old book, The Future of Law, and the future he now foresees for many traditional attorneys isn't a bright one.
"Richard Susskind argues that that lawyers and the legal profession in their present shape face extinction—or at least are 'on the brink of fundamental transformation,' " reports the London Times.
Information technology and outsourcing of specific portions of what used to be a lawyer's job are eroding and will eventually eliminate the practice of law as we now know it, Susskind predicts. Thus clients, he contends, are increasingly unwilling to pay expensive lawyers for advice, research and drafting that “smart systems and processes” can do better.
But even though Susskind's new book, in draft form, is being published online by the London Times in six weekly excerpts (here is the first), it's not too late for those who disagree to have their say.
He is inviting online comments on his work so far, and intends to incorporate them in the final version of the book. It will be published next year by Oxford University Press, the newspaper reports.
“The challenge I lay down is for lawyers to ask themselves, with hands on hearts, what elements of their workload could be undertaken differently—more quickly, cheaply, efficiently or to a higher quality—using different methods of working,” says Susskind. In other words, as the Times puts it, "what are the core indispensable legal skills lawyers have and what can be replaced by less costly workers supported by technology or by lay people armed with online self-help tools?"

One Response to “The End of Lawyers?”
Alonso Sarmiento LLamosas Says: November 15th, 2007 at 6:26 pm
Ladies and Gentlemen:
Certainly some practices of the legal profession may be disappearing while technology is replacing mechanisms and procedures, but the spirit and rationale of the legal profession is more alive than ever and is constantly renewed and also dinamic and grows to apace. The complexity that has reached the modern society requires rely increasingly in specialists in the law and go to them with increasing frequency. Meanwhile, lawyers we can be grateful for the technology that provides us with a growing capacity an increasing ability to act, a wealth of information and networking with almost all parts of the world in real time. I doubt therefore that our profession is coming to an end. On the contrary, I think that we are reaching a point where our involvement is indispensable. Since ancient times, in all cultures, there has been a counselor, an advocate, a prosecutor and a judge. After thousands of years, these characters still exist in many forms and will continue continue to exist forever. (Sarmiento & Du-Pont Law Office in Perú)

Comments
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Posted by Ronald Burdge - 8 months, 4 weeks, 4 hours, 34 minutes ago
Lawyers could certainly learn a thing or two from more efficient business operations, as long as we bear in mind that we are first a profession and that makes our business model fundamentally different from Macy’s and McDonalds. But that probably won’t happen until big corporations (who are the ones paying the bulk of legal fees to the profession) realize that they shouldn’t pay so much for legal services (just looking at the huge percentage that have cut outside legal services and you see that may be starting to happen). As that happens more and more, lawyers will realize that they can’t keep increasing their billings forever (the profession hasn’t awoken to that one yet). Lawyers need to take a serious look at their business model and find a way of giving better quality service at lower cost or the consumers of that service will do it for them.
Posted by Tom DeCaro - 8 months, 4 weeks, 3 hours, 34 minutes ago
Perhaps we could standardize every transaction. This would go along way towards reducing or eliminating lawyers. While we are at it, we could standardize every human interaction. That would eliminate lawyers completely. For example a husband and wife, if they are involved in interaction 3.2 would be entitled to select transaction 5.3, 7.4 or 10 .7 to resolve their marital difficulties. Short of this, lawyers in some form or another are here to stay. The distinguished colleague who insists on writing everything out longhand and handing it over to someone else for typing and endless revision could completely change his thought process and his method of operation which has served him so well over the years because the noise machine insists on more efficiency. Bottom line, if lawyers are obsolete that means humanity is following a very close second into the obsolescence limbo.
Posted by anonymous - 8 months, 4 weeks, 3 hours, 28 minutes ago
Profession is being destroyed by the unmanageable spider web of unclear, voluminous and frequently contradictory rules of the courts and the court system. Since the courts are a monopoly, there is no incentive to make them customer-friendly. Immense inefficiency in the system makes every litigant and every client a victim and prisoner. I know many people who just surrender their rights to defend a claim or prosecute a claim due to the destruction of their freedom, their time and their wealth. Generally, only large corporations can afford to enforce their rights. A single case could sink an individual or small business. Solution - courts, law firms and legal service providers must allow free competition to do its job instead of hiding behind monopoly power. Start by eliminating restrictions on advertising. Completely destructive and unnecessary. Founded on sound principles but it merely acts to protect valuable information that potential clients can use to make buying decisions. When your competition is advertising prices based on value to the client, many may rethink their billable hour method of valuing their services. Invasive, burdensome, outrageously expensive discovery turns most cases into a nightmare for clients. Someone should analyze the cost-benefit here and determine whether billions of dollars translates to valued results for clients as a whole.
Posted by carter - 8 months, 4 weeks, 3 hours ago
Anonymous,
Good to hear from someone else who advocates liberty. To your comment I would add that the monopoly state bar associations and licensing requirements should be terminated.
Posted by Richard Barron - 8 months, 4 weeks, 2 hours, 44 minutes ago
In my opinion lawyers can quite often better utilize their analytical and advocacy skills for their clients in the context of mediation, a seemingly difficult paradigm shift for many attorneys. This reluctance is explained, in part, by the fact that while mediation normally reduces dispute resolution costs for the client, it normally reduces billable hours for legal counsel. It seems important, thus, to reflect upon the long term benefit to both the public and the profession of clients who see us as professionals who are able to resolve their disputes in a prompt, humane and economical manner. This, alas, is not the prevailing current view.
Posted by Mike Mills - 8 months, 4 weeks, 2 hours, 41 minutes ago
What is the practice of law?? Things lawyers used to do decades ago have been taken over by specialized (and probably more efficient entities, such as title insurance compoanies, tax preparers, insurance adjusters, paralegals, etc) So what is the practice of law? I submit that the trend of non-lawyers taking over the tasks that lawyers traditioally did secades ago will probably continue,. Does that make lawyers obsolete?? I submit that some of the things that lawyers do will become obsolete, and the “practive of law” will become more sharply defined.
Posted by Richard Morley Barron - 8 months, 4 weeks, 2 hours, 39 minutes ago
n my opinion lawyers can quite often better utilize their analytical and advocacy skills for their clients in the context of mediation, a seemingly difficult paradigm shift for many attorneys. This reluctance is explained, in part, by the fact that while mediation normally reduces dispute resolution costs for the client, it normally reduces billable hours for legal counsel. It seems important, thus, to reflect upon the long term benefit to both the public and the profession of clients who see us as professionals who are able to resolve their disputes in a prompt, humane and economical manner. This, alas, is not the prevailing current view.
Posted by Overworked Lawyer - 8 months, 4 weeks, 1 hour, 17 minutes ago
The legal system is designed to provide every protection to someone who could be put to death or someone trying to recover billions in damages. Then, when some client wants to fight tooth and nail “for the principle of it” there are way too many and too expensive tools with which to fight.
The solution is harsh but fair. Almost every dispute with less than 100k in assets should have a mandatory exchange of court ordered discovery, a 1 hour mediation, a 1 hour summary trial before a judge, and a discretionary only appeal. Lawyers would still fight, but the fight could only go 3 rounds.
However, the screaming and moaning over taking away the right to jury trial, the unfairness of it all, etc. will prevent it. For the party in a fight, its the most important thing in the world to them and they just won’t let it go easy. Look at the judge with the million dollar pants. Judge Judy should have taken care of that case in 5 minutes. As it is, everyone outside of the system wants tit cheaper and more efficient. The parties in the system (or at least one of them) just wants to win.
Posted by Page - 8 months, 4 weeks, 38 minutes ago
The suggestion that lawyers are becoming obsolete is ridiculous. For thousands of years, lawyers have been the keepers of the law, and advocates of people who need someone to speak for them, whether in court, negotiations, contracts, or otherwise. While the laws change, technology changes, and the tools we have to work with change, but the basic premise of the practice of law remains the same… People in difficult situations will always want the sage advice of a counselor that they trust, and value the ability of that counselor to help them put their case in the best light possible.
Posted by Jim - 8 months, 4 weeks, 31 minutes ago
Having seen a number of “do-it-yourself” legal documents that lay people have used without any understanding of the content or meaning being conveyed by the document, I am quite certain that the demand for lawyers will remain strong, either to do the job right from the beginning or to sort out the mess created by “do-it-yourselfers.”
Posted by Andy the Lawyer - 8 months, 4 weeks, 4 minutes ago
If Mr. Susskind wants to prove the courage of his convictions, he should pledge that the next time he’s indicted or sued, he will hire a layman with a computer and Internet access to defend him.
Posted by new york 2L - 8 months, 3 weeks, 6 days, 20 hours, 58 minutes ago
I guess the same can be said of most professions - do we really need general internists as doctors - can’t we just go to the myriad medical websites and put in symptoms to get a diagnosis. Yet the doctors are still around.
Posted by Tax Esq - 8 months, 3 weeks, 6 days, 20 hours, 22 minutes ago
Kudos, Tom Decaro, for your insightful post. Couldn’t have said it better myself!
Posted by Pete - 8 months, 3 weeks, 6 days, 20 hours, 15 minutes ago
As a dirt lawyer, I don’t see how I’m going to be replaced. A title company will never opine on the effect of encumbrances upon the title. As commercial lenders become more sophisticated, as commercial loan documents become longer, who is going to understand them other than an experienced dirt lawyer.
Posted by Martin Perlberger - 8 months, 3 weeks, 6 days, 17 hours, 50 minutes ago
It is good lawyers who will never become obsolete as long as the society is free and open. The others have been obsolete for centuries.
Posted by Irwin ironstone - 8 months, 3 weeks, 2 days, 19 hours, 21 minutes ago
Law has already changed. However, it will continue to change and hopefully, allow middle class individuals to afford legal services. One step in that direction is online law schools. these, eventually, will be allowed and reduce the debt associated with going to law school full time. Many other technical innovations will also reduce costs. video conferencing will help to eliminate travel time and the associated costs when arguing motions. The issue of UPL cannot be applied to internet practice when there is limited jurisdiction. the result will be that lawyers in ohter countries will be used to draft papers at far less than American lawyers currently charge. We speak of a civil Gideon, and justice in this country - but in reality both are lacking.
Posted by sounder rajan - 8 months, 3 weeks, 1 day, 23 hours, 34 minutes ago
Liigation lawyers can never become extinct.As long as advocacy skills and court craf are there it gives the winning edge. In a free Society the Profession has to stay despite -Out Sorucing” which can only be back office maneouveres.

Core competence: 6 new skills now required of lawyers

2008-07-23T17:41:00.000-07:00

Up till now, the necessary and sufficient skill set for lawyers has looked something like this (in alphabetical order):
Analytical ability
Attention to detail
Logical reasoning
Persuasiveness
Sound judgment
Writing ability (okay, that one’s apparently optional for some)
This list doesn’t include such characteristics as knowledge of the law, courtroom presence, or integrity — these aren’t “skills,” per se, so much as information one acquires or basic elements of one’s character. Even innovation, which I prize so highly, is first and foremost an attitude and willingness to think and act differently.
Rather, I’m concerned here with actual skill: a ready proficiency or applied ability acquired and developed through training and experience. Your degree of character, diligence and intelligence are innate characteristics; skills are what you acquire through their application. If you possessed these six skills in sufficient abundance, you were fully qualified to practise law.
Well, not anymore. From this point onwards, while these skills remain necessary, they’re no longer sufficient: they constitute only half of the set necessary to practise law competently, effectively and competitively. Here’s the new six-pack, the other half of tomorrow’s — no, today’s — minimum skills kit for lawyers (again in alphabetical order).
1. Collaboration skills. This isn’t just about “working well in a team,” essential as that is. This is about the ability to function in a multi-party work environment such that the process and outcome transcend the collective contribution — the whole surpasses the sum of the parts. Thanks to technological and social advances, this is how work is going to be done from now on. Lawyers who collaborate well possess the ability to identify and bring out the best others have to offer, to submerge their own positions and egos where necessary, in order to reach the optimal client outcome. Collaborative lawyers trust the wisdom of the group; lone wolves and isolationists don’t do any good anymore.
2. Emotional intelligence. If you just rolled your eyes at this entry, you probably subscribe to the belief, drilled into us in law school and in practice, that lawyers have to detach themselves emotionally from their cases and clients in order to offer the best advice. That’s idiotic. Clients need our empathy, perspective and personal connection to feel whole and satisfied; colleagues need our engagement, respect and understanding to be their best and help us succeed; everyone needs us to listen better than we do. Distant, detached lawyers are relics of the 20th century — the market no longer wants a lawyer who’s only half a person.
3. Financial literacy. This is a widespread issue, recently identified by The Economist as a factor in the subprime meltdown and other economic woes. But there’s no excuse for lawyers to remain so steadfastly clueless about money: running a business, balancing a ledger, understanding tax principles, working with statistics, calculating profit margins, even explaining the rationale behind their fees. Too many lawyers with Arts degrees just shrug and say, “I was never good with numbers” or “They never taught me that in law school.” Not good enough: every client and every case involves money in some way, and every lawyer in private practice is running a business of one size or another. Financial literacy is essential.
4. Project management. It’s a growing refrain among clients, a chorus of frustration that most lawyers have zero skills in project management. Some lawyers wouldn’t even be able to define it: planning, organizing, and managing resources to successfully complete specific objectives while maintaining scope, quality, time and budget restrictions. Lawyers seem pathologically unwilling to estimate time or budget costs (invoking the almighty “it depends” clause) and incapable of creating and managing a plan of action, presumably for fear of failing or being caught shorthanded. But today, everybody project-manages: it’s SOP in corporate life, and lawyers are the only ones in the business chain who seem to have missed the memo.
5. Technological affinity. Gerry Riskin recently called out the legal profession in a timely post on this subject: “too many lawyers pride themselves on their IT incompetencies, believing that it makes them somehow charming and brilliant.” Lawyers have grown accustomed to going unchallenged on their technological backwardness, and even tech-savvy new lawyers eventually succumb to firms’ glacial pace of tech adaptation. Here is a fact: technological affinity is a core competence of lawyering. If you can’t effectively and efficiently use e-mail, the Internet, and mobile telephony, you might as well just stay home. And if you don’t care to learn about RSS, instant messaging, Adobe Acrobat and the like, clients and colleagues will pass you by.
6. Time management. Virtually every lawyer I meet says the same things: “I’m just so busy. I have so much to do. I don’t have any time for myself.” And yes, law is demanding, hard work. But a substantial part of lawyers’ difficulties in this regard lie with their inability to prioritize their tasks and manage their time. Lawyers are terrible at saying “no,” they’re awful at delegating work into more efficient channels, and amazingly, many are still compensated not by the tasks they accomplish but by how long they take to do them. Lawyers who won’t or can’t learn to manage their time will continue to blame their Blackberrys for their difficulties, if they don’t burn out or get fired first.
So there you have it: six core skills that lawyers simply must possess if they want to make a living in the 21st century. Law schools need to teach them; governing bodies need to test for them; law firms need to make their lawyers expert in them. They’re not optional, there are no excused absences, and the test is starting right about now.

10 Comments »
[...] with Penelope Trunk’s views on BlackBerries, found through another excellent post on Law 21, Core competence: 6 new skills now required of lawyers, but her post Stop blaming your Blackberry for your lack of self-discipline is still worth reading, [...]
Pingback by Priority fruit « Lawslot July 4, 2008
Lawyers need all the skills of any good business person.Don’t lawyers know that they are running a business? If not they should learn real quick.
And don’t forget “customer service”.
Steve Coleman
Comment by Steve Coleman July 4, 2008
Dear Sir.Being a lawyer is an honor, responsibility and a livelihood. In that order. Not Reverse Sort. These has been for centuries. The technology, glamour, the paraphernalia do not do best lawyers, only lawyers better marketed; but not always the result is a satisfied customer.The job of an attorney is to achieve the best RESULT for his client within the justice and law. In that order. the other can be made call lawyers but uniquely they are operators of the law.That does not clear that the lawyer always must be a man of his time and to make use of the technology as a work element (as in its time the mail or the telegraph were used); but not like a requirement to exert the right and justice.
Comment by Alonso Sarmiento July 5, 2008
[...] Furlong, “Core competence: 6 new skills now require of lawyers.” This has nothing to do with information and privacy, but I think it’s quite smart. [...]
Pingback by Information Roundup - 6 July 2008 « All About Information July 6, 2008
[...] required courses in typical law school curriculum, but I totally agree with Jordan Furlong’s post on Law 21 detailing the 6 skills lawyers should have [...]
Pingback by Do the Teach This in Law School? « Halo July 6, 2008
As a practicing lawyer who moved into the business and IT world, I would have to applaud Jordan for calling attention to the fact that it is time for the legal profession to catch up with the rest of industry.
For me being a lawyer isn’t simply an honour. It’s a client service industry. In order to compete, you have to adapt.
To set the legal profession apart as being immune to the changes that are happening in all other sectors including health care, business and IT, is folly.
To wrap yourself in arcane principles that were created to mystify and intimidate is also folly and it will leave you in the dust bin of history.
Comment by S. Rosalind Baker July 7, 2008
[...] — callkm @ 9:14 pm Law 21’s Jordan Furlong has a great post this morning, “Core competence: 6 new skills now required of lawyers“. In it, Mr. Furlong points out that the traditional analytical and communications skills are [...]
Pingback by Re-skilling the modern lawyer : a challenge for librarians « KM Librarians July 7, 2008
Well put again. There’s not a whole lot I can say, other than I agree wholeheartedly. I think this is particularly important for solos and smaller firms, where it’s more difficult to justify arcane practices by reliance on “pedigree.” I’m aiming to provide (or facilitate) guidance on these issues with NextLex.
Comment by J Goodwin July 8, 2008
I would add marketing skills (as for any business) and knowledge management awareness. Beyond a certain point in your career, general management skills are required (in particular people development, coaching, etc.)
Gastón BilderInternational Legal Counsel, Community Relationships
Visit http://www.derechoyrse.blogspot.comJoin http://groups.google.com/group/dcorporativo
Comment by Gaston Bilder July 9, 2008
[...] great post for lawyers to read is up over at Law21 (first saw the post on Legal OnRamp). The post, “Core competence: 6 new skills now required of lawyers” highlights a new six-pack of skills today’s lawyers need to have to be successful and [...]
Pingback by Thinking Outside of the Box While Literally Thinking About the Box July 10, 2008

Why the Brain Follows the Rules

2008-06-10T20:50:00.000-07:00

People are incredibly social beings, and we rely heavily on our interactions with others to thrive, and even survive, in the world. To avoid chaos in these interactions, humans create social norms. These rules and regulations establish appropriate and acceptable ways for us to act and respond to each other. For instance, when waiting in line, we expect people also to wait their turn. As a result, we get upset when someone decides to cut in line: they violated a social norm. But how are social norms maintained? And what makes us comply with social norms? Primarily, the answer is that, if we don’t follow the rules, we might get in trouble. Numerous studies demonstrate that, when the threat of punishment is removed, people tend to disregard social norms. The neat and orderly line disintegrates.It remains unclear, however, how the brain processes the threat of punishment when deciding whether or not to comply with a social norm. A recent study conducted by neuroscientist Manfred Spitzer and his colleagues at the University of Ulm in Germany and the University of Zurich in Switzerland tried to shed light on this mystery. The researchers put 24 healthy male students in a functional magnetic resonance imaging (fMRI) scanner to see what parts of the brain were activated during a two-person social exchange with real monetary stakes. In this game, a research participant (“Person A”) was given money, and had to decide how much he wanted to give to another person (“Person B”) and how much he wanted to keep. In one variation of the game—the “punishment threat condition"—Person B could punish Person A if he or she believed that Person A had divided the money unfairly, or violated the “fairness social norm.” In another situation, there was no punishment threat and Person A could act freely without worrying about the consequences. The researchers sought to find out how much more money Person A would give to Person B under the threat of punishment, and what brain circuits are associated with this change in behavior. Not surprisingly, the threat of punishment made people act more fairly. In the “punishment threat condition” people split the money close to equally. However, when Person B had no recourse, the people given the money acted very differently and gave away, on average, less than 10 percent of the money. One of the interesting things about social norm compliance, however, is that there is tremendous individual variation. Some people would never cut in line or act unfairly, whereas others don’t think twice about it. Using a questionnaire, the researchers measured each participant’s “Machiavellism,” a combination of selfishness and opportunism, which is often used to describe someone’s tendency to manipulate other people for personal gain. Sure enough, the people with high Machiavellism scores gave less money away when there was no punishment threat and were best at avoiding punishment when the threat of punishment was present. Therefore, these individuals earned the most money overall. When the researchers looked at the brain activity of people playing this simple game, they found a consistent pattern. One region in the frontal lobes, the orbitofrontal cortex, seemed to be responsible for evaluating the potential for punishment. In other words, it figured out whether or not violating the social norm would get us in trouble. A second brain region, the dorsolateral prefrontal cortex, was responsible for inhibiting the natural tendency to keep most of the money (this would be the greedy thing to do) if this action might lead to future punishment. Interestingly, these brain areas only were activated when the threat of punishment came from a real person, and not a computer that was programmed to act like a real person.Furthermore, just as Machiavellism personality traits influenced how people behave, these traits also relate to what is happening in the brain. The orbitofrontal cortex was most activated in the more self-interested, opportunistic people. This finding makes sense because, if the orbitofrontal cortex is helping people detect and evaluate threats, then it should be most active in people who are worried about getting punished. This study can also help us understand what might be happening in the brains of people who struggle to follow social norms, which is what happens in mental illnesses such as psychopathy and antisocial personality disorder. Of course, many different variables not studied in this experiment can also affect social norm compliance. Even a norm as seemingly straightforward as “fairness” can get pretty complicated pretty quickly. The social norm of fairness, after all, does not always mean an equal distribution of goods. Someone may deserve more based on effort, talent or simply the feeling of entitlement that comes from social status. For instance, one could argue that in the non-punishment situation, Person A was put in a position of power, because he or she was given complete control of the money. On the other hand, when Person B is given the right to punish Person A, Person B is now put in a superior position of power. And accordingly, the social norm for Person A changes: it is no longer acceptable for him to keep all the money for himself. This adjustment suggests that the brain activity evident in the Spitzer study could, in part, be related to changes in power and status between the punishment and non-punishment condition. In fact, in a recent study, we found that the dorsolateral prefrontal cortex was more activated when interacting with a person who is in superior social position.We may have a long road ahead to understand the complexity of the brain mechanism underlying human social behavior fully, but Spitzer and his colleagues should certainly be commended for their efforts and well-designed research experiment on social norm compliance. Although questions remain and the interpretations are not completely straightforward, this study takes us one step closer to solving the puzzle of the social brain.

Execupundit.com: Who Feels Successful?

2008-05-21T13:09:00.000-07:00

Execupundit.com: Who Feels Successful?
Like everything in the life, successful being is relative, following several situations like the cultural surroundings, the historical stage in which lives or has lived, the age of the individual, its beliefs ethical morals and, its ambitions or projects, as well as the form in which the others assess these situations. Perhaps that one could be considered successful Who did not refuse to live. That is to say, that one that took advantage of every moment and each resource that gave the life mainly him and, lived.

2008-03-07T21:39:00.000-08:00

(Tomado de http://www.newyorker.com marzo 8, 2008)

The Stress of Poverty Changes the Brain

2008-03-01T22:27:00.000-08:00

A Neural Correlate for Social ClassMauricio DelgadoRutgers UniversityMembership in a high social class is thought to contribute to good mental well-being and physical health. Low socioeconomic status, in contrast, increases one's vulnerability for developing psychiatric or chronic medical conditions, research suggests. Various aspects of socioeconomic status could affect personal health in different ways, but most scientific attention has focused on the role of stress. Surprisingly, the most stressful part of being of lower socieconomic status might not be feelings of deprivation, as might be expected, but rather the subjective perception of our lower social standing. Although epidemiological associations between low socioeconomic status and stress, and their consequences on mental health have been well documented, there have been fewer attempts to understand the neural pathways through which status and stress may interact in human society. That is the goal of the intriguing study by Peter Gianaros and colleagues entitled "Perigenual anterior cingulate morphology covaries with perceived social standing." Gianaros and colleagues take advantage of the idea that the subjective perception of low socioeconomic status is a strong predictor of future health. They use a computational structural neuroimaging method to investigate if brain volume of neural substrates linked to stress varies according to perceived social standing. Subjective social status and the anterior cingulateThe authors recruited 100 middle-aged volunteers from a Pennsylvania community registry and acquired three important measures from each. First, participants provided information that qualified as an objective indicator of personal and community socioeconomic status (for example, educational attainment and household income). Second, they received the MacArthur Scale of Subjective Social Status. In this scale, participants were presented with a 10 step "social ladder" and asked to place an "X" on the step they perceived as their social standing in comparison with the rest of the United States in terms of income, education and occupation prestige. Finally, the authors also acquired structural neuroimaging data using magnetic resonance imaging (MRI). This technique allows investigators to quantify an individual's total gray matter volume in targeted brain regions, which can highlight specific deficits in clinical cases, as well as show the presence of greater aptitude with different executive skills (associated with increased brain volume in certain regions.)To examine general changes in brain volume among the 100 volunteers, the authors selected three specific brain regions previously linked with chronic stress and social standing in non-human animal research: the anterior cingulate, the hippocampus and the amygdala. All three are thought to be critical components of a circuit that integrates autonomic and emotional responses to environmental stimuli and thereby direct the appropriate behavioral response (for instance, coping with stressful situation). The authors found that a lower subjective perception of one's own social status correlated with reduced gray matter in a specific subregion of the anterior cingulate, the perigenual area. This result was consistent even when objective indicators of social status (such as income) were controlled for during subsequent analyses. In addition, subjective social status ladder rankings did not correlate with gray matter volumes in either the hippocampus or the amygdala. This evidence suggests a role for the perigenual area of the anterior cingulate in the subjective perception of social standing, which may, in turn, contribute to health-related issues. The Next StepThis finding builds on data showing that the perigenual area of the anterior cingulate cortex has a potential role in adaptive responses to emotional and physiological stimuli such as stressors. The region is connected with other brain structures, such as the amygdala and hippocampus, involved in learning and memory, emotional processing and the brain's response to stress. Thus, based on the role of the perigenual area and its connectivity, we can infer that decreases in brain volume in the perigenual cingulate cortex have an impact on a broad set of functions related to maintaining emotional stability and wellbeing. The fact that such decreases in brain volume are greater for individuals that perceive themselves as lower on the totem pole highlights a neural mechanism for why low socioeconomic status contributes to poor health in the long run. Although this study is an excellent step toward answering questions related to stress, mental health and social status, there is clearly more work to be done. For instance, one potential interpretation of the authors' findings is that chronic stress over many years has led to the observed decrease in brain volume. Research in non-human animals , however, predicts that chronic stress should also affect regions such as the amygdala and hippocampus--finding that was not observed. Longitudinal studies, aimed at tracking brain volume changes over an individual's lifespan, might shed light on some of these remaining issues. A larger and more diverse sample of participants encompassing all ranges of socioeconomic distribution, cultures and racial composition also would be helpful and more generalizable to the overall population. In addition, understanding the underlying genetics in future studies may provide the means to identify individuals who are more at risk at developing anxiety problems due to their subjective perception of social standing. In such cases, an individual with potentially poor coping abilities would be afforded specific treatments or training necessary to increase emotion regulation capabilities and decrease stress levels early on in life, in turn promoting better health over the long term.--Edited by Mind Matters at 02/19/2008 7:43 AM

Abogado en el Perú

2008-01-23T18:43:00.000-08:00

Servicios de abogado en materia civil comercial tributario laboral propiedad intelectual municipal.
Defensa en juicios, demandas, reclamos ante la administración pública.