Mass Law Blog

Judge Posner is Not Afraid to Use the "D" Word

Judge Posner is Not Afraid to Use the "D" Word

The redoubtable Seventh Circuit Appeals Court Judge Richard Posner (“the most cited legal scholar of all time”; “probably the greatest living American jurist”), isn’t afraid to call it as he sees it, and given Posner’s brains, experience, and economic cred as an antitrust expert, he may be more credible than your average, run-of-the-mill economist (“economists exist to make astrologers look good”).

In Posner’s newest book, A Failure of Capitalism: The Crisis of ’08 and the Descent Into Depression, he states:

The world’s banking system collapsed last fall, was placed on life support at a cost of some trillions of dollars, and remains comatose. We may be too close to the event to grasp its enormity. A vocabulary rich only in euphemisms calls what has happened to the economy a “recession.” We are well beyond that. We are in the midst of the biggest economic crisis since the Great Depression of the 1930’s. It began as a recession — that is true — in December 2007, though it was not so gentle a downturn that it should have taken almost a year for economists to agree that a recession had begun then. (Economists have become a lagging indicator of our economic troubles.)

The word itself is taboo in respectable circles, reflecting a kind of magical thinking: if we don’t call the economic crisis a “depression,” it can’t be one. But no one who has lived through the modest downturns in the American economy of recent decades could think them comparable to the present situation. It is the gravity of the economic downturn, the radicalism of the government’s responses, and the pervading sense of crisis that mark what the economy is going through as a depression.


Apparently Freakenomics got an advance copy of the book, and was able to post these quotes.

Schumpeter, Creative Destruction and the Golden Age of Capitalism

Schumpeter, Creative Destruction and the Golden Age of Capitalism

In the late 1970s and early 1980s, the American economy was in crisis after years of stagflation. Mortgage rates were 17%, business loans carried 20% interest rates and productivity had collapsed. On April 21, 1980, Time magazine ran a cover story that asked the question: “Is Capitalism Working?” Today, the crisis that the American economic system faces is greater than that during the darkest days of stagflation. In this opinion piece, George M. Taber, former business editor of Time magazine and author of the 1980 cover story, asks and answers the same question — 29 years later. [Continue reading at Knowledge@Wharton]

Taber still agrees with the final sentence of his 1980 article in Time:

For all its obvious blemishes and needed reforms, capitalism alone holds out the most creative and dynamic force that any civilization has ever discovered: the power of the free, ambitious individual.

And, he warns that despite the pain inflicted by the boom and bust business cycle that is the downside of unfettered capitalism — pain that we are suffering from now –

well-intentioned, but unwise, changes in the nature of American capitalism could do damage that will be felt for decades . . . The American brand of capitalism rests on creative destruction, innovation and, ultimately, entrepreneurs. It is impossible to rebuild the superstructure of U.S. prosperity by destroying its foundation.

The Poor Man’s Son

The Poor Man’s Son

I come across passages that I’ll share from time to time. I post them because they tickle my fancy or because I find they contain some insight, perspective or humor that appeals to me.  This quote seemed apropos given the economic meltdown of 2008 and the vast destruction of wealth that accompanied it.

“The poor man’s son, whom heaven in its anger has visited with ambition, admires the condition of the rich. It appears in his fancy like the life of some superior rank of beings, and, in order to arrive at it, he devotes himself forever to the pursuit of wealth and greatness. Through the whole of his life, he pursues the idea of a certain artificial and elegant repose, which he may never arrive at, for which he sacrifices a real tranquility that is at all times in his power, and which, if in the extremity of old age, he should at last attain to it, he will find to be in no respect preferable to that humble security and contentment which he had abandoned for it. Power and riches appear, then, to be what they are, enormous machines contrived to produce a few trifling conveniences to the body. They are immense fabrics, which it requires the labor of a life to raise, which threaten every moment to overwhelm the person that dwells in them, and which, while they stand, can protect him from none of the severer inclemencies of the season. They keep off the summer shower, not the winter storm, but leave him always as much and sometimes more exposed than before to anxiety, to fear and to sorrow, to diseases, to danger and to death.”

The Theory of Moral Sentiments, Adam Smith (1759).

Welcome to the Metaverse

Wade Roush (technology journalist and chief correspondent at Xconomy) wrote an extraordinary article in the MIT Technology Review in 2007 which I’ve had in my “must re-read” pile for a while. Recently I picked it up and noticed that the article is accessible in full on the Technology Review web site (free registration required).

Here is a brief excerpt from the article, modestly entitled Second Earth:

[w]ithin 10 to 20 years–roughly the same time it took for the Web to become what it is now–something much bigger than either of these alternatives [Second Earth or Google Earth] may emerge: a true Metaverse. In Neal Stephenson’s 1992 novel Snow Crash, a classic of the dystopian “cyberpunk” genre, the Metaverse was a planet-size virtual city that could hold up to 120 million avatars, each representing someone in search of entertainment, trade, or social contact. The Metaverse that’s really on the way, some experts believe, will resemble Stephenson’s vision, but with many alterations. It will look like the real earth, and it will support even more users than the Snow Crash cyberworld, functioning as the agora, labo­ratory, and gateway for almost every type of information-based pursuit. It will be accessible both in its immersive, virtual-reality form and through peepholes like the screen of your cell phone as you make your way through the real world. And like the Web today, it will become “the standard way in which we think of life online,” to quote from the Metaverse Roadmap, a forecast published this spring by an informal group of entrepreneurs, media producers, academics, and analysts.

This is extraordinary, futuristic stuff, but it reads like a valid prediction of the future. Click here to read the uncut article (which is over 7,000 words). If you have trouble accessing this page (perhaps because you need to register), start here to register and navigate to it.

"Yesterday's Masters of the Universe are Today's Cosmic Dust" or "I Have Found a Flaw in How the World Works"

I’ve heard this quote attributed to Alan Abelson of Barron’s, but who knows, it may be from Kansas. Maybe Abelson used to listen to Kansas.

In any event, it came to mind when I heard that the Maestro, a Master of the Universe if there ever was one, spoke thus before Congress last week:

REP. WAXMAN: You found a flaw in the reality —

MR. GREENSPAN: Flaw in the model that I perceived as the critical functioning structure that defines how the world works, so to speak.

REP. WAXMAN: In other words, you found that your view of the world, your ideology was not right. It was not working.

MR. GREENSPAN: Precisely. That’s precisely the reason I was shocked, because I had been going for 40 years or more with very considerable evidence that it was working exceptionally well.

"Legally Dead" (attorney Hal Kant's Business Card)

From the SF Chronicle’s obit of Hal Kant, aka “the Czar”, long-time attorney for the Grateful Dead:

When Ben & Jerry’s ice cream produced a new flavor, Cherry Garcia, in the early ’90s, McNally wrote in his book, the company did so without even discussing the idea with Garcia. Although Garcia was unconcerned when it was first brought to his attention – “At least they’re not naming a motor oil after me, man,” he said – Mr. Kant convinced him that the issue should be addressed.

As recounted by McNally, Mr. Kant told Garcia: “They will name a motor oilafter you if you don’t confront this, Jerry. You’ll have no control over your name at all.”

Garcia finally told Mr. Kant, “If it bothers you, go ahead.”

“In the next few years,” McNally wrote, “Jerry would have no problems in spending the large sum of money he’d earn thanks to the letter Mr. Kant wrote (to Ben & Jerry’s).” … Continue Reading

The Google Chrome Comic Book

The release of the Google Chrome web browser on September 2nd attracted a huge amount of publicity. The release of the browser was accompanied by a 38 page comic book, featuring cartoon figures of real-life Google employees, and explaining some of the features and technology associated with the browser. The comic book was illustrated by “cartoon theorist” Scott McLoud.

This is pretty cool stuff – hiring a top cartoonist to help you explain a new software product. Much better than a traditional technical manual!

A link to the comic book on is below. (And here is a link to the comic on McLoud’s own web site, which might be easier to read online).

Read this document on Scribd: Google Chrome Comic Book

Cloud Computing – The "Next Big Thing"?

Here is a link to the slides used by Dr. Irving Wladawsky-Berger (Chairman Emeritus of the IBM Academy of Technology) in his talk entitled Cloud Computing and the Coming IT Cambrian Explosion. This was presented at Xconomy’s Cloud Computing event in Cambridge in June.

While there is no audio, I think the slides communicate the message loud and clear. A favorite expression of mine is “important if true.” On these predictions, I will say “important if prescient.”

Exploring Google Book Search

In November 2005 I wrote an article about Google Book Search and the legal efforts of copyright owners to stop Google from achieving its goal of digitizing the world’s books and making them searchable on Google. The lawsuit filed by the Author’s Guild described there has dragged on with little visible activity and no apparent end in sight, but in the meantime Google has been digitizing books like nobody’s business. Although Google won’t disclose how many books it has scanned (why is this a secret? certainly not because of the lawsuit – the answer would easily be discoverable), word on the street is that as of a year ago Google had scanned a million books. If true, and if they are going full steam, they may be approaching a million and a half by now. Probably more than both you and I could read in a lifetime.

Searching and browsing this collection is awkward, but interesting to a book lover. While Google only displays “snippets” of copyrighted works, there is a vast collection of books whose copyright has expired. Presumably, these unprotected works are constantly expanding in number, as copyrights expire with the passage of time. Absent some truly extraordinary action by Congress, which can’t be ruled out entirely, it’s only a matter of time before every book is free of copyright rights.

Google displays uncopyrighted books in “full view.” You (the user) can create your own “collection” of books (basically bookmarks maintained on Google Book Search), see information about the book (publisher, publication date, and so forth), view the book either in its original format or in plain text, and search the full text.

You can also embed snippets on other web pages, as I’ve done below. Here are a few notable or interesting books that I dug up, both beginning and ending with what some claim to be the most published book in human history. You can “click through” to get the full work on Google Book Search.

The Federalist Papers, published in 1864:

Text not available
The Federalist A Commentary on the Constitution of the United States : a Collection of Essays By Alexander Hamilton, John Jay, James Madison, John Church Hamilton

Personal Narrative of a Pilgrimage to Al-Madinah & Meccah, by British explorer and polymath Sir Francis Richard Burton. published in 1906:

Text not available

Text not available
Personal Narrative of a Pilgrimage to Al-Madinah & Meccah By Richard Francis Burton, Isabel Burton, Stanley Lane-Poole

And lastly, the Old Testament in Hebrew (“Bible Hebrea”), or what fragments are left of it, published in 1280 and from the collection at the Complutense University of Madrid, which itself traces its history back to 1293.

Text not available
Biblia hebrea

Of course, you may have digital images of millions of books, but you still don’t have everything. I’ll bet Google is anxious to get its hands on the Codex Sinaiticus (image below).

51 Things You Aren't Allowed to See on Google Earth

You don’t have to love maps or be a geography buff to love Google Earth. It’s a blast to zoom in on places you know, or places you’re curious about. For me, the more obscure the place, the more fun. Try the Saharan Africa or the interior of Inda, for example. And, the more of the planet Google displays in hi-res, the better it gets.

So I was intrigued to come across an article listing sites that are partially blocked to public view – blurred out.

Here is a link to the article, on Not surprisingly the White House, the U.S. Capitol and various military sites, nuclear reactors and embassies around the world are on the list. Closer to home in Massachusetts (my home state) are an oil tank farm in Braintree, the LNG terminal in Boston, along with much of the Port of Boston and MIT’s Lincoln Labs.

But the White Plains train station and William Hurt’s home outside Paris? …..

"The American Jury System is Dying"

Lawyers from out of state often ask me about the judges that their cases are assigned to in federal district court. What are they like? What’s their philosophy? Are they pro-plaintiff or pro-defendant? (good luck on the last one …).

Most of these judges hold their cards close to their chests, but U.S. District Judge William Young is an exception. His keynote speech before at a Florida Bar event last June is on the Boston Bar Association website, and any lawyer practicing before Judge Young is well advised to read it, along with Judge Young’s 2004 decision on the federal sentencing guidelines. Judge Young’s judicial philosophy is clearly spelled out in these writings, and you’ll be far better prepared appear in his courtroom if you’ve read them.