Tuesday, December 15, 2009

Philosophy, Logic and Imperfection

Someone I respected a great deal once told me that I am not a 'philosopher.' And they were right. I am not, at least not in the western sense of the word. Maybe also not in that sense of the word that says that I must speak to your mind only according to a certain logic, without which I cannot make 'philosophical' sense. If it means 'the love and pursuit of wisdom by intellectual means by moral self-discipline and observation of lived reality,' then that is the kind of philosopher I would be happy to be. As for logic, some of the people I admire most have also told me 'you have your own logic.' They meant it in the best sense, because when you use tools you have learned as just building blocks, and then integrate them into yourself, you create something different from what exists. If it is a regurgitation, you may be good... but you have not made it a part of yourself, and no mastery exists.

I grew up in a very smart home (no, not the kind with all the monitoring technology), brilliant brothers and mother, all more logical than I, but wonderful teachers. My father was/is a mathematician. And a certain rigor was commanded by the learning of that subject in our home. Along with this went much philosophizing about almost everything, a cultural necessity in a Kashmiri Brahmin home -- the relation of what we would read in the 'Gita' to daily life lived in a setting so far from all that was familiar and known: family, environment, our 'habitat' I want to call it.

Math was formative as was its logic. My father is very fond of the history of numbers and we grew up with these stories. The stories of discovery and pursuit of mathematical truths were as important as the discovery itself. Much like the admiration a disciple may have for his martial arts master, we were taught to revere the pursuit of learning, and in the case of math, the discovery. And so I remember the fibonacci sequence and other answers discovered that could not be contained. I think this aspect of mathematics fascinated me the most; that math was able to admit its own limitations in a sense, when it was overcome by nature, and nature's patterns. The most amazing numbers are those with no end!

This is what is amazing about life too. The decisions we take, the choices we make when they are made according to nature's plan... that is, from our own natural strength, albeit aware, still innocent and full of hope. It is in these moments that fascinating discovery can and does take place. It is in this place that limitations cease and infinity begins. It is where the heart, mind and muscles sense each other quickening with the pursuit of something necessary to the spirit, to the simple but full living of one's own life.

Infinity also is a place of so called 'imperfection.' The pattern of petals on a flower, or leaf arrangements on a branch, or even the ratio of parts of a human body known as the 'golden ratio.' It is infinity we really strive for, and yet in our drive for patterns we also conform. For humanity as a group must have a certain order also. Someone else must study these patterns to find the golden ratios in conformist behavior and human groupings. Why can we, human communities and patterns of conformity, not be like the petals on a flower or a leaf arrangement, after all?

Therein lies the tension: we strive for patterned order while seeking to breach the limitations of the stability and structure created. It is this story that we both repeat and love to tell in what we term the 'progress narrative.' What would be the point in telling the story if we did not feel that we had 'evolved' or gone beyond where we had previously been. Some say that after a war or invasion, it is the victors who write 'history.' And so whoever tells the story, also must make themselves look good, as having created something better than those who lost the battle. It is a bit of 'rubbing it in' to be sure, but that is not how our children will necessarily read it, we think. The ones who come immediately after us, for whom we have created the world we bring them into, and who benefit from our counsel as they grow up, will only embellish our story. If we are smart, we worry about 10 generations later for the real judgment when the 'revisionist' version is written.

Much of the law and legal structure come out of these stories of push and pull. The law is written and then rewritten, sometimes because there is a real need for order, sometimes because there is a real need to show that those who govern really can and do command the order we seek, or represent a 'new' order. An important part of law then is publicizing it, telling the story of it, even writing it out and plastering it in the village square so everyone can read it and know what the order of the day or year is, and who the governors may be.

Currently, it is a change in regime also, from republican to democrat. An ideological difference but one that is difficult to demarcate by simply changing laws and increased regulation. Where the content and substance changes, it is easy to see that a change has occurred. In the case of a simple increase in regulation over the same terrain it is more difficult to tell that change will mean a difference in the order or patterns of behavior created. For the latter, we really require implementation and enforcement. With enforcement of laws, the governing order incentivizes and penalizes a certain conformity in behavior, creating beautiful or ugly patterns. Where disorder reigns, we tend to be aesthetically offended: as in the financial crisis, and the rampant criminal behavior unlimited by regulation or by its enforcement.

It is these patterns I study and rely on in my paper on a new International Financial Tribunal because even as I and others seek to respond, it is important to be aware that we are pieces of a puzzle, hopefully ones that fit into the sweet albeit far from neat pattern of infinity breeding ideas of goodness and 'gold' (in the best sense of that word).

Sunday, December 13, 2009

Of Womanhood, Strengths and Challenges

This past week I was invited to speak at the Hague about my proposal for a new international finance court as a response to the enormous changes in the global financial system. The resulting complexity for transnational claimants has made litigating within national parameters increasingly difficult and limited. More than once other speakers remarked to me that the debate over the making of international law in this domain of finance would shift simply because the person making the contribution, namely myself, was different from the others. One fellow participant at the conference said, "You are a woman of diversity... India, Canada, the U.S. from a very different background. This will alter the discourse." I think there is some truth to this.

The definition of gender roles at this critical point in human history is important for law and human relationships and culture. There are cultures that are reactively calling us back to strict adherence to such roles, as in Islam. There are more secular cultures that assert the equal right of women to all experience and authority, and also accept gay and lesbian relationships at par with heterosexual ones although the members of such unions may be avidly religious. In most part, there exists some increased understanding and acceptance of women as different in their own right. I will come back to what I mean by this last statement.

Differences between men and women have been debated throughout time, as various agendas for labor distribution, location of power, misunderstandings and scholarly curiousity have played out. Carol Gilligan's and others' ground-breaking work on the difference in thinking between little boys and girls, has spilled out into a recognition perhaps that women contribute differently in both form and content. Little boys it was claimed in that small study are more outwardly focused and aggressive, where little girls are more empathic approaching each problem set from a place of understanding and inclusion as opposed to adversarial attack and separation. Clearly much can be gained by allowing both men and women to approach each problem to devolve a more holistic solution. Although to the contrary, segregating the sexes based on what are already seen as strengths and weaknesses of each gender may dampen competition between the sexes, given that predominantly men and women mate and make homes together. It makes things easier to have different roles, no?

However, if women approach problems differently, they change the dynamic of the subject, and the manner in which the subject itself may be handled. That is the problems that we have to solve themselves may be different if women contributed to their formation. Do we really need more problems? Some formed by women and some formed by men? No. The point is men have determined the parameters of content and form of problems todate. The combined effort may make for fewer and different problems, maybe easier problems?

This also directly impacts women's self-definition. I want to say that women themselves have a difficult time with self-definition. If the only way they have known themselves is by mainstream definitions provided from a male point of view, then all they can be is different from men. A quick example from my children's early life. They used to share a room, two bunk beds, between the ages of 2 and 4 and 7 and 9. We had to move because they were driving me crazy; they wouldn't stop fighting. (We lived in a 2 bedroom apartment.) Mostly they were fighting about self-definition because they shared this room for too long. They had adopted roles, only one of them could be good at any particular thing. If my son was smart in school, my daughter had decided she had to be stupid. If my son was good at the piano, then she could not be and so on. Now none of this made any sense... she was brilliant in math, and she had an avid interest in music, and got a rousing ovation playing the piano at 3 years of age... so clearly something she could have kept doing but she would not. Within a semester of our move, I was able to see the difference. Not only did the fighting abate, but they could inhabit the same interests again. Not all would overlap, but now I could be reassured that it had more to do with their own strengths and interests and less with asserting difference from the sibling.

There is danger then in heeding too strongly Gilligan's thesis of difference. One wonders if it is not overly deterministic by and of difference between the sexes. Certainly, there are ways in which men and women are similar in their thinking too. We are human after all. We have occupied different roles through much of history because of convenience and culture perhaps? Misogyny or misunderstanding? The physical power differential? The occupation of different roles in the distribution of labor for so long that it forms us as different? The biological differences etching a different emotional and empathic sensibility? All these are possible origins.

But a different viewpoint from the mainstream can originate from other minorities also. Of course, women are not a minority. They mostly form a majority of the population in most nation-states and globally. Yet they are construed as minority because they do not determine the mainstream. This brings us to the other question: which men, if it is men, get to determine the mainstream viewpoint? Those that own the educational system, media, money (we are back to that), governing bodies, financial institutions? Does it stand to reason that the longer you have held power over governing bodies and finance, and the economic system (sustenance for the world's people) the more power you may have over how that power should be relegated between men and women, or between men of a certain race, creed, religion, or class over other men and women of other races, creeds, classes, religions?

Maybe. I can only ask the questions. The answers as someone else has said more eloquently 'are blowing in the wind.' Maybe the answers don't really matter. Maybe the making of harmony from difference is more important. Being a second child, I would opt for the latter. A firm believer in the integrative thesis (no surprise to anyone) let's go back to what difference I or other women can make to international legal discourse. First, we do tend to see the problem differently from men. For instance, whereas my colleagues see the need for international arbitration for the financial services industry specifically and only from the viewpoint of standardized master agreements crafted by ISDA that will require interpretation in a transnational setting, they miss completely the extent to which global finance has transcended borders and affected people, not just the institutional parties to ISDA agreements, but the world at large that has been invoked as investor, backer, client in multiple jurisdictions by legitimate and scamming financial institutions alike. Maybe it is not about building a tower, but about seeing the interweaving web created by the global financial system. We live on a globe, a sphere, and money like a neural synaptic connector has come to affect us all, a spark that is lighting a contagion of branches through the net. I cannot see the response as an assembly line tower, but view it as a comprehensive, culturally adjusted and systemically integrative institution.

I am also responding from my point of view as lawyer for investors in various international financial frauds, in international transactions at large, and of course, fraud investigators. So both the problems I define from my observations, and the responses to them, are apt to be contextually based. And most significantly, they will be contextualized within the experience set of my own herstory of life as an Indian, Canadian and new American immigrant.

There are deeper issues about constructions of property as determinative of gender hierarchy which I will not go into here. These issues are directly related to the ways in which legal systems may have perpetrated the subjugation of women and minorities generally. The main point I want to make is not so much that there is a purpose in what I am doing and contributing but that we are at a critical time in our history that enables more participation in legal discourse generally, from lawyers, scholars, and lay people alike. Diversity of all kinds is necessary to achieve solutions going forward that will assist humanity deal with the kinds of social, biological, and financial strife that are bound to increase with the burden of sustaining billions on the planet for the first time, the ravages of global warming (whether it is of our creation or natural), and increased health risks.

Since I am a woman, I can say that it is an unprecedented time after a long silence for women in my family to contribute 'publicly.' However, it is also a time of some challenge. There is stigma attached to divorce in the Hindu family, especially in a Kashmiri Brahmin family. Single parenting by women and men,is known of course, even in situations where the parents are together formally. The leap from married to officially single, however, has been lived with difficulty by others in the west and fewer in the east, unless forced by circumstances. Yet I note that there is bias in favor of seeing couples even here in the west, whether the couple is talking to each other or not, or whether the couple is married or not. So stigma prevails even in the west.

Both men and women appear to have difficulty determining their roles in this transitional space in which new culture is being written and the synchretism of such different cultural underpinnings takes place in the global flow. Just as we see bowls of curry apple squash soup, we see Caribbean, Indian, Finnish American families at the table for Diwali, Christmas, and Hunnukah. We are melding into each other like a thousand tributaries of the same vibrant river heading into the large ocean that created us. Whether the 'wisdom' uttered comes of woman, man, child, dark, light, freckled, rich, poor, middle class,of whatever cultural affiliation, let's hope we make it possible to hear it, recognize it, and heed it!

Thursday, December 10, 2009

A Wink and a Nod, Ethics a Year After the Confession

This has been the year of appearing to do justice. But, the issues remain, the questions left unanswered. A man named Madoff, ending not so differently from the way he began -- a self-interested insecure youngster who wanted to make money and would do whatever it took, ended up knowing he had to bring about his own demise so he could retain a status claimable by an exaggerated infamy.

All it took was cheating and lying to all who would listen. Once the money was made, they not only listened, they sold their trust and with it their ethics and their ideals. A wink and a nod, and it was understood that if you had the golden contact you would easily make a good, if not great rate of return. This was the case for the inside club. Those who are not seen as innocent investors: Shapiro, Chais, Pikower and others in the U.S. and abroad. There is a second tier who made handsome returns but not quite as much as the hundreds and thousands of percent these insiders 'earned' by feeding the braincenter.

Ponzis are an affinity fraud. 'Affinity' is a natural attraction, liking or close feeling of kinship according to the Merriam-Webster. But 'affinity' also fits neatly into the narratives and the oppressive grand narratives of culture of which Lyotard speaks. Criminality or greed can find that level of trust, or natural bonding that comes from the sharing of a human impulse grown strong by the making and hording of money. It is the same story of money-making told over and over by not just the Madoffs and their cronies but by the grander ones within the capitalist ideal: those who smuggled liquor during prohibition, discovered oil, and even discovered 'new lands.' Whereas financial and natural tsunamis do not discriminate, hitting all pro rata, capitalist affinity or 'cronyism' is only for the 'select few,' who will not tell on you, even when that number grows to thousands.

Significantly, Madoff was a mere symptom of the times: times that unveiled the Petters, Stanford, and hundreds of others crawling out of their caves of muck, reduced by the shame of loss (for the greedy, can there be a greater shame?). We can ask now if this ebbing of the tide has extinguished 'their kind.' Have there been enough jail sentences some ask? Has regulatory reform secured the perimeter? Will the 150 years received by Madoff deter others? Will this gunning down of scams, and financial giants lead to a return to the good? Has justice been done or is it at least on the right track?

I don't think so. I still see all around me the signs of aggressive as opposed to conservative action by financial institutions. Some are in trouble and thereby distracted for a little while. But those who have power, have redoubled efforts to self-gain on the backs of consumers and investors who continue to pay in their stead. Bail outs and support of mismanagement could not have helped. These actions may have simply prolonged the pain for all of us. Madoff in the end, like Martha Stewart may merely be a visible celebrity sacrifice for others to stay in the business of greed.

I had occasion to speak with an EU Central Banking leader on my travels who claimed the industry is not interested in reform. He claimed it is instead in denial. This I found hard to believe. Surely, an unprecedented downturn and exposure of the absurd risk profile of financial institutions globally must have taught them a lesson? Surely those with power and money realize the gross consequences of their breach on billions of people relying on their wisdom? Has the discrepancy between wisdom and those with money and power made justice unattainable? Are money and power so conflated now that neither wisdom nor justice can pry them apart? Is power only a term denoting self-interest and self-aggrandisement? In other words, is there no one around to hear the plea of those without millions to their name, in losses or gains: the ordinary, or not so ordinary whose cares may carry them to interests other than the commercial and the monetary?

If not, then how did it all start? What do our children learn in school? What do they learn at home? If their parents' securities' operations are investigated by the SEC and then shut down, must they long for the same treatment, hoping they too will be caught and repeat the familial program? Or is it a challenge to the youngster, to make sure it does not happen to him, that he will overcome this governing agency's power and avenge his parents' shame? How many new Madoffs are growing in the inadequacy and insecurity of average students afraid to attempt the accumulation of real wisdom and the dismissal of a call to artificial wealth?

Further still, what of universities? Given the rampant commercialization of almost every aspect of endeavour, from art to dance, finance, law, politics, and even education, shouldn't every college student have to take an ethics course? How many of them will sell out their ideals? Do they not deserve some grounding in decision-making that elicits healthy skepticism and a penchant for all that is good and 'human.'

Dec. 11, 2008, I learned some incredible truths about the world I live in. I cannot claim to have been sheltered all my life. I grew up early in the middle of war, my birthplace a battlefield in more ways than one. I did not come into the world thinking all was rosy. Every bit of poetry spoken from my lips and brushstroke of wisdom penned by my hands have been deliberate acts of reclamation of what I feel I was not allowed to have or experience. Transforming the world around me has been the only song worth singing.

However, the reality of survival digs deep into the sides of one's lungs and we breathe it in even as we take a walk up the mountain of green pines and maples, smelling the alleged scent of purity. Never having sensed the invasive stab at our ribs, we have been polluted by the fiction unknowingly. This alien sensibility we have attempted to overcome all our lives in a quest for transcendance not to the other, but to ourselves, our real selves in a place with no worry, no fear, no torture, no grief, brings us back and we cough it up and out. Deceit, fraud, hurt and tragedy compose that pollution and the fiction of the system in which it breeds.

In its place, don't we all deserve to experience the transcendent self? Isn't that what we learned in the second world war. What was the point of the Universal Declaration of Human Rights? There are no vermin among us. We have together created this world, the financial system and its various incarnations, the constitutional systems (we see evidence in California as it looks inward to its own 'Madisons' and amends its constitution 500 times), the economic systems, the social systems, and the start of it all, the family. We have killed millions of our own in one genocide after another, trying to get something right, or maybe trying to get something terribly wrong. And it is painful to acknowledge this for some of us who choose to see the horror.

I wonder when we will overcome ourselves and choose instead to help rather than hurt, to share rather than take, to learn rather than obliterate. In this age when barriers have been broken by the internet and mobility, I am reminded of the concept of sovereignty and territoriality, a projection of individual need that attempts to respect the other, and I wonder even as we yearn to communicate and hold humanity in our arms, do we not desperately need such respect individually and globally? The community we seek and create informally and formally helps us to better understand ourselves, but it also helps us hurt each other. It is a double-edged sword and with it law must in parallel be double-edged.

There must be ways to infiltrate the speed of innovation and activity of hurt we as humans are able to cause and create, with boundaries (individual, national, and along the spectrum in between) through the teaching of law and ethics at levels and in ways we have yet to conceive. Or where conceived, then in ways yet to be enforced. There is probably no better time to insert the random and the diverse, even taking the risk of welcoming the peripheral good.

If we take Dec. 11, 2008 as a day to mark our own support of a system of corruption and greed flagrantly thrown in our faces by those who have to confess it for us to know what we have done, then perhaps today, a year later, we can stand up and say we see what we have done, and we will do our best to change it!

Traveling and learning about healthcare

Travel is a great way to understand better how others think. I am on my way to Paris and Amsterdam right now...writing on the plane, one of my favorite spots for this exercise, even in the midst of turbulence we are currently encountering. Knowing how others think and what they believe is a great way to understand the limitations and challenges of one's own cultural make up. As I keep intimating, law and culture are inextricably linked.

So on the way to the airport, my cab driver volunteered a lecture on what ails American politics. He called himself a libertarian, and believed America had lost its values. Although he was not a fundamentalist, he believed some faith was important in one's life to steer the course. He also believed that government had gotten too big. He was not in favor of current health care reform even though he had not had health care for years he said, "can't afford it." "Then doesn't the current health reform make sense?" I asked. He did not think so. He was afraid he would be covered but that the government would then be able to decide every aspect of his health needs, and he would have to either wait for the kind of care he needs or have to go to Alaska to get the right doctor because the government would want to make sure health care was equally distributed throughout the US.

I wasn't really sure what he was getting at. It appeared to me that either he was scared government would be able to take over health care entirely because it would be the cheapest option (and then why wouldn't everyone switch if it was the cheapest); but then answered him with his own argument, "because it is not the most effective option as you claimed."

At the same time he had solutions of his own, namely 7 percent of our income should go to health care and save us the hassle of all these choices. But good local healthcare should be provided and the insurance companies would still be able to survive because we would need catastrophic coverage, a serious illness for which extra coverage would be required. I asked if he did not think this sounded eerily like the current government option? He didn't think so.

For my part, I told him that I really needed government healthcare when I got to the U.S. as a single parent of two, studying and raising my kids on $12K a year for a number of years. The kids were young and didn't need much, but they did need healthcare. Having just arrived from Canada, it was the most foreign thing for me to contemplate having to pay for health insurance. What was more of a shock was the cost of health care, in those conditions it was completely unaffordable. $500 a month for family healthcare, was the average income for an entire year for families in other parts of the world. I could not imagine how this made sense when all each of us needed was a check up once a year... of course with young children you cannot take a chance. They catch everything being exposed to other children all day long.

I recall talking to someone randomly at microcenter about this topic back in those early days of my arrival. I could not understand the great vehemance with which that other average American approached the idea of universal healthcare, as a government takeover. As a Canadian, I had become accustomed to some sense of governmental care as a normal part of adulthood. But in the U.S. I was quickly learning, self-sufficiency in rhetoric, culture and law was up and coming. Unbridled and unleashed ambition, entrepreneurship, creativity and innovation was more than encouraged, it was fed through cultural nutrition. As such, challenges were taken with responsibilities by Americans. With the risk of failure, or 'no healthcare' came the possibility of great reward and more choice and self-sufficiency. This was a fairly extreme stance for Canadians, who tend to live more balanced lives. Although interested in the upside, most work and go to college closer to home, eat well, live well, worry less, and of course, they all have health care.

Interesting...I thought, on the bright side, clearly health care is now a work in progress here after decades. There is no getting around thinking about the options! Paradoxically, despite his lament my cab driver was a living tribute to the fact America has not lost all its values. Through the entire cab ride, he attacked and pontificated about the policies of his government. At the very least, participation, free speech and thought were alive and well!

Thursday, November 26, 2009

turkeys, eagles, and letting go of things

"You can't soar like an eagle when you are surrounded by turkeys" (Harry Markopolos, Senate Banking Hearing, Sept. 10, 2009) except on Thanksgiving! In India, we don't have thanksgiving, partly because we give thanks everyday. I remember going to the local temple everyday... and being surrounded by the blessings of thought, reflection, and community prayer. In Canada, thanksgiving takes place on U.S. Columbus Day and the turkeys do come out much like American thanksgiving; a harvest festival involving pilgrims and natives thanking nature for that year's bounty together, from what I understand.

I am still new to American culture, having become an immigrant only recently and many of the rituals appear foreign to me. The values around the idea of giving thanks however, is one that resonates deeply. The idea of assisting those who do not have, or thanking those who have made great sacrifices for our comfort comes naturally to most of us. Indians for instance hold great honor in welcoming anyone in need into their homes and feeding them any day of the year. This is particularly important because part of the culture requires Hindus to give up their status and belongings and seek enlightenment at some point in their lives.

The need and importance of a Thanksgiving day is underscored by its contrast to consumer culture in a land of plenty. Here few people starve and pray for daily bread as they do in some lands, even though there is enough food to feed all 7 billion of us. The lack of food that does develop has little to do with availability and more to do with hoarding behavior.

Attachment disorder is a significant aspect of hoarding behavior. We have seen so much hoarding behavior of late, from the extreme frauds of the Madoff type to the squandering of immense wealth at the expense of the common American by large institutions and government. It is interesting to note that those with OCD (obsessive compulsive disorder of the Madoff variety) are also prone to hoarding:

A psychology professor at Smith College estimates that 2% to 3% of the population has OCD, and up to a third of those exhibit hoarding behavior (Cohen, 2004). This appears consistent with 2% of the world's population holding 50% of its wealth.

The 3-part definition of clinical hoarding is as follows:

1.The acquisition of, and failure to discard, a large number of possessions that appear to be useless or of limited value (Frost and Gross, 1993).
2.Living spaces are cluttered enough that they can't be used for the activities for which they were designed (Frost and Hartl, 1996).
3.Significant distress or impairment in functioning caused by the hoarding.

Hoarding has three components:

1.Acquiring possessions compulsively - compulsive buying, or collecting free things.
2.Saving all these possessions and never discarding.
3.Not organizing and maintaining all the saved possessions. (http://www.squalorsurvivors.com/squalor/hoarding.shtml)

I am surprised by the 2-3% figure as what I see around me appears to show a greater amount of hoarding behaviour. There is so much on TV and in the media that suggests the push toward acquisition, although most of it also pushes toward discarding what is acquired so that more can be acquired and then discarded. I suppose what is most suggested is temporary attachment to things acquired. In some ways this could be a profound message. Some of the oldest principles and values espoused by humanity stress the temporariness of all we experience and an acceptance of this temporariness. The study above appears to suggest that OCD type attachment to possession comes from an insecurity in the person stemming from a lack of attachment to the real. Hence objects and possessions and even money can act as a substitute for real attachment to people such as parents or other loved ones etc. One would think also that such hoarding behavior may also show up in extra-marital affairs, because of the inability to truly attach. All are antithetical to the messages of Thanksgiving.

Giving thanks and the experience of gratitude involves attachment. And attachment to other people, animals, even the earth in a profound way is a remarkable attribute of human experience. It is because of a deep attachment or love for what and who is important to us that we also can let them go. This letting go is different from the discarding of things that every advertisement beckons us to do. True attachment is important to meeting up with that expansive sense of attaching to the larger universe, in line with the Hindu aspiration of enlightenment. What are we talking about? It takes a little love in one's life. Without real love and the creation of such bonds, it is hard to give thanks.

It is no wonder that when we think about holidays like thanksgiving, we think about family and being with those we love. The sense we have of being showered with blessings enables us to give love to others who may not be as fortunate, or who may simply be situated differently (if we don't want to pass such self-absorbed judgment on the state of others in a different economic, health, ability, or opportunity bracket).

So if you are walking about on this holiday and not OCD (or if you are afflicted with this condition try to get over it for a few days of the year) go out and spare some change for those in need, maybe even give away a few things to someone who could really use them!

-- GDK

Monday, November 23, 2009

Parenting and the Culture of Governance

I can remember my grown children as babies. Cute, curious, full of energy, exploration, and playfulness. They have not changed a great deal, somehow managing to retain their essence in spite of what the world and their parents have thrown their way. I still want to protect them, and refine the value system they have cultivated through their upbringing and the cultural attributes I hold dear as they go off and explore their world further.

I realize that many parents around me do not adopt the same stance. Even their Dad tends to be less protective, letting them figure their own way earlier and having different expectations of their self-sufficiency.

This tension between self-sufficiency and protection often conflated with cultivation of culture or particular values is seen in the legal system and the making of laws also: from inception within the political and legislative process to adjudication and enforcement. This tension within the legal system just like within two sets of parents comes from a difference in cultural precepts and sometimes even personality types. Perhaps we can liken the latter to partisanship?

We play out, in and through the rules we create, much of the drama of the parent-child dynamic because governance itself invokes care taking and care giving between the larger whole or body politic, the structures it creates, individuals, communities, and the many governing structures whose role it is to provide such care.

I use the term 'care' as an ideal, of course. How many of us do not often feel neglected? We want our government to care and implement caring actions, but there are seldom enough resources. Our government like many parents is over stressed, out of time, out of money, or can't make ends meet -- all of which leaves little room or sentiment to provide the care required.

But one day, one of my children or one of your children may occupy a governing role within the larger care-giving institution, or government. The structures and institutions we have created are all peopled by individuals not so long ago children. And in that view, we can understand that these institutions we have created have within them a microcosm of all the pushes and pulls of conformity, power, service, play, sloth, perfection, mediocrity, and curiosity to which their members may be susceptible, just as they were in the school yard.

I realize that inadvertently or intentionally it appears I have made a judgment that the parents or teachers are missing in that school yard. I think sometimes that is true or it feels that way. But even when that is true we have the larger structures or institututions that make up the government to provide us with the sense of stability and security we expect from parents. Those institutions are founded upon certain basic rules we deploy to guide our sense of freedom and limits. Where rules and laws are made or changed, processes involving time, deliberation, participation of experts and interested parties, as well as institutional reflection will assist with the stabilization of governance and the invocation of change.

So in the wake of destruction to our security and confidence caused by the financial crisis, it is useful to ponder these dynamics also. While the financial crisis toppled markets and destroyed investor confidence in the very idea that we can be secure in our economic and financial system, we still depended on the weight, solidity, reflection, and participation of our legislative processes and governing structures.

We had confidence in the deliberative processes by which we usher in changes in rules, paradigms, and systems in this country. It is for this reason the quick passing of the bail out packages caught me by surprise. I cannot pass comment on the real necessity of those actions to the economic system on which we have come to rely. I don't count myself as one of the insiders to that story.

I do know there was another level of confidence those actions threatened - confidence in our governing institutions and processes. Even if we will eventually be glad our government took the steps to protect us and perpetuate the value system we choose to live by, our security was undermined anyway. It didn't feel like we, as individuals and communities, were being protected. Instead, it felt like institutions that were grown up enough to take care of themselves were coddled at our expense.

Thursday, November 19, 2009

Of Hearts, Communities, and Transformation

It was not so long ago, although it seems like another life now. I was riding a Tanga (horse drawn carriage) in Srinagar as a young girl. I remember the bus from the city of Jammu to Srinagar in Kashmir... a perilous journey from which many did not return. Buses skidded down the slope of the mountainside to the Chenab River below. I could see them from the window seat in the bus, wondering if we would make it through to the city where my family waited for me, not knowing if and when I would arrive with my mother and brothers. Those images and experiences are etched in my heart.

Integral to those images is the notion of rapid change and immense possibility for transformation. I was a girl in a city on this planet who had ridden in a horse drawn carriage as the main mode of transportation and within a few years, reunited with my father in Montreal -- in a different world, with a car of our own, a Buick Lesabre as our main mode of transport. Add to this the dazzle of electric lights I first beheld on my journey to the west. From east to west the sun rises, and I too had risen to know these lights and this difference. A young heart carries the color of passion, of future hope and potential, of imagining never-ending possibility.

I have described a part of my core, so you literally have a sense of where I have come from. Often I hear from someone or other, that some change that we may hope or long for is not possible in our lifetime. And even to me it may seem impossible, yet there is always that flicker of doubt in my heart that colors that determination. "Nothing is impossible," it whispers. Time, after all, is itself a fiction we protect to support our own limitations.

What has this to do with the law? Everything. The structure, order, and rules by which we seek to govern ourselves, are often the slowest to change. However, even these frameworks for governance can change at a rapid rate in the right circumstances. They change with the advent of a social or human connectivity that did not previously exist. Sometimes such connectivity has taken the guise of religion, a faith, belief, or ideology that links people in different lands and across borders. Sometimes such connectivity arises out of the faciliation of mobility, such as the airplane, or train. Sometimes such connectivity arises out of communication devices. The printing press, telegraph, telephone, and internet come to mind. Obviously the confessions of a Ponzi-schemer can also unite many.

Scholars have stated that we imagine our communities into existence. The printing press for instance has been attributed with the development of the nation-state because of the connectivity it established within a certain territory through readable pages multiplied easily. Now the internet has revolutionized communication such that communities can develop around every topic of conversation, often called 'chat rooms.' The informal but widespread structures sprouting up all around us in networks of connectivity may inspire us to rethink fairly quickly the kinds of community frameworks that make the most sense. In turn, more ad hoc and informal rule-making appear likely.

However, one aspect of such rule making will prevail and that is transparency. There is a larger public domain than ever before just as our population itself is busting at the seams, having reached unprecedented numbers. We have kept pace and developed means to record all activity. Each of us can have his/her own public and public persona. In fact, privacy itself will become increasingly prized as it will be nearly impossible to find. We are proceeding at a fairly quick pace toward a world community and inevitably, world governance , as scary as the prospect may appear to some. Not surprisingly given my own trajectory, I imagined it as a 12 year old in Montreal, only a few years after making my way to the new world. Now I cannot believe how quickly we are racing toward it.

Saturday, November 14, 2009

Money, Ethics, and Law Firms

Today, I feel like starting an experiment. I need to find out how many of the people I am dealing with are honest and intend to handle ethically the 'money' situations that come their way. (It is often unclear what the law requires in each situation, but ethics invoke at least an element of moral right that we can talk about together. This is a better gauge right now as I try to ascertain how much of my public engages in or at least attempts to engage in right action, even if it is individually, and variably defined, culturally). This applies to my clients, affiliate law firms, collaborative law firms, friends, colleagues etc. Let me be clear, I am not casting stones... he who throws the first, right? That would be fairly arrogant. I am just trying to learn.
The experiment is this: I would like clients to think for a few moments what my services and time are worth to them and pay what they like. If ethical considerations were at work, I think no one would be trying to take advantage of me, and they would be paying as much as they could afford. What do you think?

In money, we have constructed a tool for communicating mutual and one-way obligation with one another. Such notions as reciprocity, self and generic worth and value are all mixed up with money. As long as a certain level of comfort can be guaranteed by our country's economic conditions, and our currency retains a certain value, we can intuitively ascertain and apply a monetary value to our sense of the worth of the effort we put into our work, our relationships, our homes etc.

Money may have nothing to do with effort. Some of us come into a boat load of money and do nothing to earn it. Others work their hands and other body parts off, but somehow don't see any of it. Supposedly money begets more money, sometimes money also is lost because not everyone is above board. There is a premium on acquiring as much money as possible while doing the least amount of work. Why is that? Theft is incentivized directly. You steal, you keep and you see what you keep, no commissions and little competition (at least one of my clients would say I am being naive).

However, what is not taken to heart is: where do the thieves think they are going? We all have 80 years or so to live. And none of us is taking it with us where we are headed. It won't be needed over that border. No matter what kind of insurance we have, there is no guarantee that all our money will not be lost. None. Something may happen and we may finally see that our money is worthless to satisfy our deepest desires and wishes, even without being visited by a large meteor or tsunami. You store away or work endlessly to accumulate wealth over the course of 20 years and come to see that your kids have grown up without you. As a result, when you are older, they are not there for you, just as you were not there for them. You are a millionaire a hundred times over at the age of 55. What a great situation right? But you are hit by a cancer that cannot be cured and oops, there is nothing you can do. Suddenly, there is no way to pursue the legitimate right to enjoyment for which you have worked so hard. And you don't know how your money can help. It can't, in most cases. Sometimes, money does buy hope and opportunity.

I have also seen that something strange can happen when people get a little more money than they "really" need. "Greed". Something also happens when people have too little money, and want to find a way to get enough, theft. Somehow the latter situation is easier to understand. Isn't it? There are ways then in which money due to our association of it with concepts of 'worth' and 'value' can be used to compensate ourselves and others for deficiences, real and made up. Instead of addressing questions of reciprocity, obligation, worth and value for what they may really be, we conflate them with money and lose sight of the real context of those issues and questions.

I am not trying to write a sermon here. I am just trying to understand how to get on in the world. I am a lawyer. I have started a new law firm, and this brings some growing pains and money is an issue, of course. But I am also a mom of two formidable individuals, who I helped grow (a social service to be sure), have grown a host of clients (many of who are my best fans, another social service) and a number of friends, even boyfriends and fiances (another social service!). Do I bring these experiences with me into the services I provide? I have an hourly rate of $600 which when compared to my plumber in times of emergency ($210) doesn't seem too steep. In an emergency, who would you pay more, your lawyer or your plumber? Maybe it is more of a toss up than we would care to admit. The analogy is painfully pertinent. We all can study the law. Lawyers are not Gods, as some pretend to be. The law applies to us and is a tool for the people. You should know the rules that govern you and your relationships. Similarly, those pipes are in our house -- we should know how to fix them when something goes wrong. How can we live in a place we don't have the tools to repair or change to do our bidding?

Here is where another element enters the picture, time. Time is money, we are told. It turns out that world wide studies show that folks who go to college and put in that 3 or 4 years to get a degree earn much more than those who don't. So the time you put into getting that higher education is worth it, so to speak! Once you get to graduate school, law, business, Masters, Ph.D., it would make sense that having spent the additional time may also mean greater income, or it may justify that extra few hundred on your hourly rate. How about if you have 5 graduate degrees? Do you maybe reach a plateau somewhere? Maybe that plateau exists at your own sense of fairness. Does the wisest and smartest person in the world charge an outlandish amount? She could. But what would that say about the wisdom and ethics she is espousing? You can see hopefully, where I am going. (Go back to where we are not taking it with us.)

This is an earthly dilemma, some tell me. It is based in the market. There is such a thing as market value that we hold as the standard to help us determine the worth of our qualifications and wisdom. It may have little to do with our own reality. It is a more 'objective' and 'independent' barometer of value. Yet, this value, as we have recently seen in the financial crisis, may be skewed, as it certainly is, by a systemic fiction (subprime, derivatives). How and why do we then apply it to all we do in life? All those social services I was referring to. What if I don't want to put a money value on them? Does it mean I get taken advantage of? And if you take advantage of me, is there a money value I can place on your newly created obligation to me? Do things like guilt and shame have a money value too. Sometimes these are more powerful and valuable tools than money.

There are two situations that have prompted these inquiries and the experiment I related above. One, I have embarked on this new terrain of contingency work in which I don't charge clients up front and I get paid when a recovery comes in. Sometimes, I charge up front fees to cover some expenses, but ask for a portion of the recovery as well. The theory behind this work is that you are logging your hours and upon recovery you show the work, time etc. you have put in and the contingency covers (if you are lucky) all the time and expense put in on behalf of clients and even a certain portion of equity. Most clients like this situation as they should. They don't have to pay while you take a risk that you will succeed in providing them with relief and at that point, you, as their partner, have earned, maybe more than earned, your keep. Contingency fees can run up to 40% of recovery as a result. So you are a real partner with your client. You just need to make sure you have enough financing to keep yourself and your staff paid while you work for umpteen years at a time. This is the market... it takes no account of your special circumstances. Some lawyers have gone bankrupt in this process, never able to recover. One would think that clients would be well served to make sure basic expenses are covered if they are real partners and believe that this lawyer has knowledge that serves their interest, but where there is competition, clients don't have to do so. They may not take the time to understand the specific wisdom, or special experience/expertise of the lawyer in question.

Two, even in non-contingency work, clients and others who don't pay when they are obligated to do so is a recurring nightmare of those in any business. I am already seeing the repercussions of it. Yes, collections agents have approached me. These folks keep saying for months that they will pay, but don't. They don't provide any conditions to be fulfilled in order to allow the payment to come forthwith, they just don't respond and don't pay. When does one stop providing service? What if it is an intermediary counsel who owes you your part of the retainer fees? He is your partner in the case but clearly holding onto your money in his own firm's bank account. Clients are clients, but lawyers can be susceptible to greed too. There are ethical rules governing lawyers' conduct with client funds in some countries, but not all. As the communication and common work increases across borders, more concert in such rules must be in the offing. But the implementation and enforcement of such rules, is the real difficulty.

We all have a moral compass, and we know right action. It is acting on our moral compass that is of real value for clients and lawyers alike.

Monday, November 9, 2009

Feeling light with the weight of your hope...

There are so many cases yet to come against deep pocketed defendants in the Madoff and other frauds. These are not easy cases. And I am stunned, as I review the case law, by the imbalance in favor of powerful institutions who have the resources, not only to protect their interests with legislators and in the courtroom, but also in their initial due diligence when soliciting client funds. We as consumers and investors in these institutions, have come to expect such diligence on our behalf because of their size, breadth, and resources, and by their easy access to cross-border funds. No less when these institutions have betrayed their capacity and ability to sustain such costs with both personnel and finance in brand names, we as consumers have come to respect and affiliate with the level of expertise they flaunt through millions of dollars of marketing. Where are the ethical standards that would inform the sweeping actions of such institutions when they gather funds, if they will justify their actions at the expense of the very clients who have supported their aggrandisement through the years?

There has clearly been a discrepancy between the message marketing has produced and reality, otherwise we would not be at the low point in investor confidence around the world that we see today. The global financial crisis, and serial fraud have brought home a message of shame within the financial services industry. The stain of this shame will be hard to remove. Here liability is the issue. Without the sense that such powerful institutions are subject to independent judicial review, how do we tout the rule of law throughout the world as a plausible and necessary ideal?
Right action, and independent review must start at home and the U.S. must set an example of reform that will ripple the principles this nation holds dear throughout the world.

In the hope that the investing consumer can still find justice in the courtroom, my small law firm has started on the path of holding financial institutions liable. At the same time we are busy with the prospect of serving those we believe deserving of our service, time, and at the risk of exposing sentiment... our devotion. We do devote ourselves everyday to the pursuit of what is most right, to support others who are on this quest for those injured by fraud, by flagrant abuse of power, and by the systemic failings to which all of us are vulnerable as actors and recipients. Change cannot be effected by wishing it, it requires the effort of our hearts and our hands! In our case, both are full!

We, like our clients, are hopeful that in the end, those same financial institutions will thank us for increasing investor confidence, and one day with the change in this tide, providing them with more clients based on the raising of the ethical and legal standards in the services they provide to consumers.


Thursday, November 5, 2009

Holding the Government Responsible?

Not so long ago, I was consulted by a colleague at another firm, as to what I thought of their claims against the SEC in the Madoff case. I stated that it is difficult not in some way to hold the SEC responsible for the mess and tragedy that has resulted in the Madoff case but that I would wait to see what the SEC IG's Report held in terms of evidence. I think now that I have reviewed the complaint of my esteemed colleague that I was misunderstood.

Can the SEC be held accountable? Maybe. The current complaint is one that has a very steep uphill to climb. Perhaps there are arguments held in sleeve to surprise the formidable adversary. I will certainly be waiting to see what these may be. But as far as I can make it out, the issues of discretion and negligence pervade the case-law, most of which appears well-settled. The most difficult aspect is the tying up of lack of discretion and judgment to the kinds of duties exercised and the ways in which these duties are exercised in the performance of functions at the SEC. The problem is that the very discretion of staffers is what opens them to assaults of negligence and incompetence. The legal web of sovereign immunity is fairly tight on these issues. I am sure those more knowledgeable than myself would find many other situations in which the SEC has been negligent if not downright captive, including one of my clients. It is at best unclear that the SEC/US Government would be held liable in all these instances.

This being said, the question of holding one's government 'accountable' and 'liable' may be two different things. It is one that requires careful thinking about the policy behind statutes created to except the SEC like other government agencies from liability that other ordinary citizens and entities are open to sustaining.

As many of you know, I propose to hold the SEC (certainly past incarnations and administrations of the SEC) 'accountable' for the immense tragedy, domestic and cross-border caused in the wake of the Madoff fraud. The reason I make this distinction is that liability will take a decade to parse out, and the investors and customers of Madoff from as far away as Japan, many of whom did not even know that their money was being funneled to this one mastermind, are older citizens of the world who were trying to put their hard earned money into a safe investment and now find it lost. From my many discussions with investors close and far, it is clear, not one of them wants to wait to get their money back. Could a lawsuit against the SEC, especially one with some real teeth win? Maybe, but who wants to wait? All I hear is that investors and customers alike want to hold the government accountable... it is the meaning of accountability and expedited investor recovery that really interests me and I believe, most investors!

Why is that? It is because of a belief I hold dear. The law is a vehicle to assist and serve those in society come to a quick resolution of their claims. It is not for some of us who have had the privilege and opportunity to go to law school to stroke our egos or perfect our philosophies at the expense of our elders who have been traumatized and shocked by the betrayal of the financial system generally and by the immense impact of this specific fraud. In a situation such as this, where a government agency could have facilitated an earlier discovery and potentially prevented the tragedy (not unlike Katrina) some 16 years ago, the agency must be held accountable and do the right thing! And I for one, will give it every opportunity to do so.


Sunday, October 18, 2009

Launching a firm and new beginnings - Awakening!

It occurs to me that we lawyers have the good fortune to be in constant contact with beginnings. Without being too cliched about the inception of a law firm, starting out is rife with opportunity and possibility. It can be a very heady feeling for almost every adventurer.... but lawyer? Lawyers have to deal with possibility and opportunity at every turn with a new client, new case, new transaction, new venture. Yet lawyers and lawyering are about promoting and establishing a sense of security and stability for clients... The appearance of justice being done is as important as the fact that justice is actually done, we are repeatedly told. And so, over time, principles of law, briefs in cases, clauses in contracts are akin to the well-worn rubber of tires over-used and now liable to slip at the first sight of drizzle on the pavement. Appearance can, you see, be just that...artifice, the look and feel of stability without the real underpinning of thought, time, imagination, pooling of resources and training acquired by all of us lawyers in law school, but long ago surrendered for the security of a specialty, expertise, and the power provided by a few choice clauses of which we are king or queen. Nowadays we expect only clients to come to us for those special needs and we refer other clients out. The law has gotten complicated and unwieldy. No, not really. The law still has a firm foundation and base to provide, but the application of it to an infinite number of branches above its roots, is starting to look more like the building above is much taller than the base can support? Each area of the law has sprouted new legs, and inhabits a large domain of its own, no matter how small an area it may be. Some legal fields overlap with others and force such attorneys into other industries and even other legal domains, but this is the exception. This means that in order to do a good enough job, lawyers must restrict their focus and professional training out of law school to one or two areas max.

And so, the law has become more constrained and restricted as a profession. Why should accountants have all the fun? Actually, the above analysis could probably be used on the acccounting profession as well. Hence, the slippage in that profession has lately been glaring. What is responsible for this focus? Specialization: supposed attention to minutaie, and expertise in one small domain, that in fact ends up providing the opposite result of rampant and unchecked corruption that no attention to minutaie has been able to prevent? I think there has been so much needless complication, and so much rise in cost of legal services that it does not make sense to charge clients to do the kind of thinking that is really necessary to do on every line of every contract as we once use to do. At $400 to $1200 an hour and sometimes more, how can one justify taking any longer than absolutely necessary to a client, unless the client is a large multinational, who is doing very well. Even in the latter case, that client most likely has an in house legal department for this type of work, figures out what contract language works for it, standardizes the same and starts doing as many deals to make as much money as possible and necessary as quickly as possible. Often it is the outside counsel that are brought in to do the more complicated legal thinking in situations not previously visited by in house counsel. Cross border issues are one such area. I know I routinely help out with this thinking and with contract language in this area. But I don't stop there.

I refuse to work with clients, unless the work involved is meaningful and in some ways even, inspiring. This may surprise lawyers especially. But even contract law, when it is done on behalf of companies that have the right attitude and want to change something either about themselves or the world we live in, from innovation in industry to innovation in communication and community can be inspiring. Choosing then to live with clients that are trying to find creative solutions to their problems, to the problems of their own or other communities, aligns with my vision of how to use all the resources in my tool box, from my six degrees (including 5 law degrees), to my experience as a lawyer on four continents to better lives and serve others while increasing my own vision of client needs' and legal services at large.

Starting out with each client then becomes a fascinating amalgam of opportunity and possibility for both the lawyer and her clients. My current situation of representing Madoff investors is no exception. Each investor is someone who I represent, not just as a lawyer, but as an advocate. I believe in recovery as a just cause because I know the context and the very different situations in which they find themselves. In the representation of businesses, there is much more advisory work relating to positioning of the product or service so that it optimally serves the community(ies) of users. As outside general counsel one becomes an integral part of the thinking machine of the company and its growth, be it through preventative compliance related work, or through business acumen and imagination, or through an acquisition strategy, or even litigation with appropriate ethical guidelines in play. As a litigator, the lawyer is much more specifically in a representative capacity for the client with regard to a particular issue. In some very famous cases, we have seen that lawyers can come to defend or struggle on behalf of countries, and entire communities in a role as advocate because a just solution cannot be found in a courtroom only. The powers that be and decide the fate of that community are larger and more politically based.

I was talking about beginnings and lawyering... about possibility and opportunity and the ability to use all one has in terms of resources. Now there is nothing wrong with going into the law because you want to do a specific job well. But I would ask everyone, not just lawyers to do what they are most passionate about and what most ignites them to use all of their capacities. Without passion, no matter what you are doing, you will not be awake doing it. That may be the most important thing of all... being awake on the job. I think right now clients have been paying lawyers and accountants that have been asleep at the job. Look around you as to what has happened around us with the financial crisis. This is of course not deliberate, it is systemic and systematic, a regurgitated impact of specialized complication, a kind of legal and legalized derivatives from which law firm machines can also be sustained just like so many other machines they must serve. Note this is a generalized comment without specific instances and take it for what it is. But I ask us all to think about how much sleeping our work requires us to do; and how little questioning our work requires of us.

Awakening to what it is you are doing can awaken you to what really needs to be done in new and different ways of your own creation. This requires actual input from you. You will keep using the ways you have been trained, almost by rote, to apply to the problem, but you may also open up to ways that a detective might by taking in every single relevant fact of which you are able to obtain knowledge. Then of course, you may not be the person most suited to attack the problem as you have now conceived it and may have to get help, and or refer the matter out, but you will be thinking on your feet based on present knowledge, fact and application of your training... that in itself is an adventure!


Saturday, October 10, 2009

Nobel prize and its meaning

President Obama won the Nobel Peace Prize and I heard some remarks about this. "What did he do," were the comments and thoughts I heard. I then read his own remarks at hearing of the news and they sounded right. It is not so much what he did do, but what America did in this election and in setting the platform for change that it has set with this administration that warranted such acknowledgement.

This administration is not getting everything right and perhaps in specific instances that can be disturbing. But I don't imagine anyone gets everything right, certainly not an entire administration... not by a long shot. What impresses me is the intention I hear beneath the rhetoric. The intention is right, in fact it is right on with what I consider all that is good and right. That is often hard to say much of the time when I hear words over the media. Now you and I may not agree with all that is on the platform, but you must give credit for effort. This President is trying really hard to get accomplished what he has said he would. Nine months in... you may not want him working on health care...but he said he would and he is. He appears to be working on the economy also.

Again, he may not get everything right.... but in my books he is getting an A for effort so far.

Is that what the Nobel is for.... no. I think the Nobel is not for great diplomacy either. I think the Nobel is for an amazing thing that happened in America recently that said something to the world about what was possible, but appeared impossible to the world. A man, born to an American woman but the child of a Kenyan man and an American woman, travelled to other countries, spoke other languages, learned about the world, worked very hard, and got himself educated, and sought to serve the public and ran for the senate and then for the presidency... and the American people chose their new leader based on merit, and that leader rose and keeps rising to the challenge and this must be acknowledged. I know I was stunned by it...as much as I hoped for it, because it makes possible for so many of us to do so many other things that we thought were denied to us because we are of color, or a woman, or any number of characteristics that may be used against us as a way to deny us the responsibility and power of our own merit.

There is no question that the world has gained from the example set by America and a new era has been ushered. We do not have many prizes to acknowledge this type of pathbreaking accomplishment... I guess the Nobel is one such.


Thursday, October 8, 2009

Let's try again - a little humour - humanity in the law and getting to know each other.

I got no response the first time so let's try again. I will give you a little more of me, let's see if you have something to give back.

I have never written a blog before. So, this is really an attempt to figure out what this new interactive form of communication is all about. I have read other blogs and they usually seem to have a specific topic and discuss different aspects of that topic. I suppose I could do something like that but for me it seems too stiff and defeats the point of the medium. This is not a newspaper article although I know it will be very informative at times once I get going. This is not an essay - that's been done, and keeps being done in other venues. This is something between a chat room (never been to one but I imagine it to be extremely interactive kind of like a busy sauna where people actually talk to each other instead of avoiding eye contact and any other kind of contact unless you are watching one of those movies with tough older corporate moguls who use the sauna for a power talk and big decision making) and a thought-piece, sometimes an article, with many authors.

I am one of those people who think that writing should involve the writer, in this case, many writers. For instance, I am a big fan ofP.J. Coetzee in Diary of a bad year or Slow Man... He is someone who does that better sometimes than I could have conceived of it in my fantasies. At the very least, I could invoke the post modern somewhat forced habit of establishing subject position. But like Coetzee, I think this is a bit passe. We really must move on and into the very real fusion of self in writing and law which is more "integrative," or "integrationist." Perhaps it will lead to more "integrity" in my writing, in my thought, in the way I practice law? If there is anything mildly appealing in form or substance here, and you are persuaded to ever return to further partake of my ramblings in this blog, and become remotely close to a regular, you will see me often come back to this theme of "integration."

Today, I want to tell you that the idea of writing a blog came to me from a movie my daughter and I went to see recently, Julie/julia. [For the blogger in that movie, blogging changed her life in almost every way. She became truer to herself every single day as she wrote and also better and more expanded as a person than she was the day before. What a goal!] In any case, my daughter and I were suppose to be accompanied by my son as well, but he was otherwise occupied. All three of us were very excited about the prospect of this film but the origin of this excitement did not occur to me until this minute.

When my children were fairly young, say 6 and 8 or in that range, I would impersonate Julia Child for them from her TV show as if I was actually on TV making a souffle or some recipe of hers. I did it because I thought she was funny, but I exaggerated her every action so as to elicit from my children the reaction that I knew would give me great pleasure and the incentive to keep going. My kids didn't just think I was funny. They were rolling on the floor, pangs of breathy screams emitting from their mouths that refused to close, as another make believe souffle plummeted and had to be trashed with the exclamation, oops! "Well you know we all make mistakes and you musn't be too hard on yourself," I would end.

I am not sure my kids ever saw the actual Julia Child TV show. We didn't have a TV while they were growing up. But then again, they would have been hungry for this curious appliance in any hotel room we may have visited on vacation. So there is a chance they did. Given the running Julia routine I had perfected with them, interest in the film was only logical. There may have been other incidental benefits too. My son, a senior at College now makes the best truffles from scratch this side of Belgium (I kid you not), and my daughter is an unabashed comedienne. I guess Julia had quite a profound impact on us.

It should not be surprising that as I become an empty nester, I am choosing to hold onto some special memories and weave out my takeaway from the movie that paid homage to her and her legacy. All good stories, and perhaps arguments too, have the thread of care, understanding, and even compelled curiosity that sews the hem of their beginning and end and sometimes the many pockets of memory in between without which continued enjoyment of their making would be lost. As I look back at that special time with my children, I am reminded that it would not have come back to me in this moment unless I was at a good place now. I love to write and this blog will give me a forum to grow my penmanship and thinking in the bright light of your glare.

What more could I ask? To speak of the law, and maybe its purposes. For instance, are we as lawyers coming close to answering the call of service the law demands of those privileged to serve? Is there any humour in service? "You've got to serve somebody," croons/rasps Bob Dylan. The work on the Madoff case makes me think a lot about service. I see so many people, not just myself give of themselves to help the devastated. Of course everyone wants recognition and compensation, but they also just want to help create a better way forward.

There will be so much to talk about with you, serious, funny, imaginative and fantastic. The law is capable of all this and more because it is an extension of human interaction, community, and all manifestations of the human mind, heart, body, and soul. And the point to this story... in case the story needs another point, is that the law starts with you! Hopefully an integrated you!

I am going to stop there for today. I was intentionally short yesterday and intentionally long today to see if giving you a little food for thought may start a conversation.

Jump in anytime.

Monday, October 5, 2009

Starting the Conversation....Investing, law, and fraud.

Dear Investors:

I am attorney for Harry Markopolos, the whistleblower in the Madoff case. I am an attorney with 22 years of experience in three different jurisdictions. I have recently launched my own law firm because I want to practice a different kind of lawyering, one that is open to a variety of experience in society and brings to bear my own amalgam of knowledge from a variety of cultures and laws. To effectively learn from the public's experience is essential to the way I want to practice law, and current technology enables this possibility. And so I am creating this blog to provide myself and you the public with a forum for our conversation.

I am not providing legal advice in this blog. Nor will I interact with any comment received in an attorney-client form or relationship within the blog. If you are a client and want to speak to me there is a confidential forum for our interaction on my website. You can also email me or call me. This is a forum for conversation with you the public; a way to provide you with resources, information from experts, my associates and colleagues, other law firms, finance and investment consultants, and government leaders from around the world who are trying to transform the current malaise.

I also want to use this as a public forum to air my thoughts and discuss issues relating to the law, and its transformation as we encounter others across borders, in other marketplaces, living through the same hell or heaven and places in between we may be experiencing. I want to think and talk about the repeated slaps of fraud and betrayal investors have recently experienced around the world. I am interested in the way investors may be dealing with such situations, partly of course because I have taken on some of these cases and I want to expand my analyses beyond the purely legal. I want to gain from your insight into what you may think is or is not related to the law in the situations with which you are grappling. Even investors who have not personally encountered fraud are skittish about the market and more distrusting of institutions and advisors. For me, it is important to have a sense of the situation from your point of view.

Without your input, a conversation will not occur. So I ask you to talk to me, and I will respond.