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When Your Own Brand is Worthless, Just Steal Another?

[ 0 ] October 27, 2008 |

Guest post by Law Prof.

Apparently, it’s gotten to the point where McCain don’t expect enough people to be motivated to pay attention to his own (frankly uncreative) logo — that star between two arrow-like lines. So yesterday McCain’s own ad campaign was prominently displaying Obama’s trademark flag-sunrise. (See the screen-cut from fivethirtyeight.com) Unfortunately for McCain, that is what we in the intellectual property legal field call “trademark infringement.” While few people are likely to be confused once they click-through to “speak out”, as the ad requests, it doesn’t eliminate the initial confusion. If Burger King ran a similar web ad with McDonalds’ trademark equally prominent and BK’s equally hidden, BK would be creating initial interest confusion (and I think that there might be an argument even if the ad said “tell Mickey D that you like your hamburger broiled not fried”). First Amendment law protects a lot of speech, but won’t protect against such confusion even in political speech, methinks. The key is that everything in TM law is to be considered in consumer/observer context — and, in the context of web ads, TM owners run all sorts of odd pitches and requests for “taking a poll” just to get people to click a link. And people often do respond with an immediate, almost instantaneous, mouse-click. Many people are likely to click through to the next page before realizing that it’s not an Obama ad – especially in the midst of a heated election cycle. TM control becomes even more powerful in this context. Of course, all that the Obama campaign could do in this situation is seek a Temporary Restraining Order (or ask the ISP to pull the ad). But, more importantly, when it’s one week until the election and you know that your own trademark won’t inspire people to act, it’s time to call it quits.

Sunday Book Review: Rules of the Game

[ 27 ] October 27, 2008 |

Sometimes simple questions result in enormous projects. The question that Andrew Gordon tackles in Rules of the Game amounts to this: Why did the Grand Fleet fail to destroy the High Seas Fleet at Jutland, in spite of a massive advantage in material and a devastating tactical position? Gordon begins with a detailed account of the development and deployment of the Fifth Battle Squadron (consisting of four of the five members of the Queen Elizabeth class, most powerful battleships in the Royal Navy) at the Battle of Jutland, which is followed by a familiar account of the Run to the South, in which the British battlecruisers under the command of David Beatty encountered the Franz von Hipper’s squadron of German battlecruisers. Then, just as the battleships of the Fifth Battle Squadron turn away from the oncoming High Seas Fleet, we return to Trafalgar, a history of the Victorian Royal Navy, and a long discussion of what peacetime does to military doctrine and practice. As you might imagine, it’s a long and detailed book. The first half of this review deals with Gordon’s theoretical argument, and will be of interest to those curious about the study and practice of military doctrine. The second half focuses on Gordon’s empirical argument about the outcome of the Battle of Jutland.

Gordon argues that the nineteenth century dominance of the Royal Navy combined with the social customs of the Victorian Age to produce an officer corps hostile to and largely incapable of decisive, independent action. This hostility was reflected in the training and social institutions of the Royal Navy. The consequence was a military organization that was exceptionally effective at certain tasks, but remarkably inflexible. However, no social institutions can exist without producing resistance, and the Victorian Royal Navy produced both doctrinaire officers and “ratcatchers”, rebels who struggled with the hierarchy but who would do well in combat situations.

British command at the Battle of Jutland featured a doctrinaire officer (Admiral John Jellicoe), and a ratcatcher (Admiral David Beatty). Of course, these are ideal types that can never quite catch the complexities of particularly individuals; Jellicoe would not have risen to command if he had not himself among his fellow doctrinaire officers, and Beatty tamed his rebellious streak enough to move up the Royal Navy hierarchy. Military organizations, like any other organization, are riven by faction, although the factional breakdown doesn’t always manifest in the same manner. Carl Gemzell made this point in a not-often-enough-read study on conflict within the German Navy between 1880 and 1940, and it’s fair to say that the dispute between “conservatives” and “crusaders” in the US Army represents a modern manifestation of this tendency. Factionalization isn’t simply dichotomous, but describing it as such can be a fair way to characterize certain kinds of arguments.

Gordon’s policy/theoretical argument is that military organizations need to understand factionalization and structure themselves to manage, and even take advantage, of its manifestation. His conclusion provides twenty-four lessons on how military doctrine evolves during peacetime, and on how peacetime developments can create difficulties during war. This chapter in particular should be of tremendous interest to both scholars and practitioners of military doctrine. The lessons evaluate both how the body of knowledge itself emerges, and how that body of knowledge creates individual officers, an officer corps, and the physical structure of a military organization.

On the empirical case, Gordon aggregates and refines the mountain of evidence about the conduct and outcome of the Battle of Jutland. He is interested primarily in the command decisions of the Royal Navy, and as such doesn’t spend a lot of time considering German deccision-making. It’s not quite true to say that the evaluation comes down to a comparison of Beatty and Jellicoe, but it’s not quite untrue, either. The case against David Beatty is complex, but compelling. His audacity made him a capable commander, but he lacked a sense for detail. His evaluation of subordinates was suspect, and in any case he didn’t communicate well with his senior officers. These shortcomings may well have had an impact in the early stages of the Battle of Jutland. Had Beatty taken more care to coordinate with the Fifth Battle Squadron, more damage might have been inflicted on Hipper’s battlecruisers, and Queen Mary just might have been saved. Later, poor communications with his subordinate created a zone of vulnerability for the Fifth Battle Squadron, which could have but did not lead to the loss of one or more of the most valuable units in the Royal Navy.

All of these issues have resulted in damage to Beatty’s historical reputation. The initial reaction to Jutland in the United Kingdom was to blame Jellicoe; he had failed to destroy the Germans, and in fact the Grand Fleet ended up suffering greater losses than the High Seas Fleet. Jellicoe was “promoted” out of command of the Grand Fleet, and Beatty was promoted into command. As Gordon suggests, however, the historical record has tended to support Jellicoe over Beatty. Gordon disputes this conclusion. Beatty, in spite of all the mistakes he made, did his job; he drew the High Seas Fleet into a hopeless tactical position against a vastly superior enemy force. The loss of a battlecruiser or two would hardly be remembered if Jellicoe’s Grand Fleet had proceeded to destroy the Germans, as it clearly was capable of doing. Put differently, the loss of a battlecruiser may be attributable to Beatty’s mistakes, but the escape of the High Seas Fleet is on Jellicoe.

There was no single decisive moment at Jutland; the tactical and operational situations resulted from the accretion of a tremendous number of decisions large and small. However, some decisions deserve more attention than others, and Gordon devotes study to Jellicoe’s decision to turn the Grand Fleet away from a German destroyer attack. With the High Seas Fleet in disarray and suffering a pounding from Jellicoe’s battle line, Admiral Scheer ordered his destroyers to launch a torpedo attack against the Grand Fleet. Instead of turning into the attack (accepted doctrine was to display as little profile as possible for torpedos), Jellicoe decided to turn away, and the Grand Fleet lost contact long enough for the Germans to escape. The decision was understandable both to the extent that Jellicoe wished to preserve his fleet, and in that he expected he would be able to retain contact in spite of turning away.

I wonder if part of the problem is that Jellicoe was thinking at a level above his paygrade. I know more about Jutland than Tsushima, and a lot more about Jutland than Trafalgar, but one difference between Togo/Nelson on the one hand and Jellicoe on the other is that the former two didn’t worry overmuch about the consequences of defeat. They were given a job (destruction of the enemy), and a set of tools with which to do that job, and both of them undertook as expediently as possible to bring the enemy under their sights and destroy him. Jellicoe seems to have agonized over his position as the only man who could lose the war in an afternoon. Togo, as I suggested some time ago, could have agonized in the same fashion; the IJN held a strategic advantage, could have won the war without forcing an engagement against the Russians, and indeed could only have lost the war by allowing the Russians to win a battle of annihilation.

Still, I get the sense that Nelson, Togo, and Beatty would not have turned away from the destroyer attack, but rather would have maintained contact with the Germans. Had contact been maintained, the outcome of the battle could not have been in doubt; the British had more ships, better ships (this is a debatable point, but I’ll be happy to respond to any queries in comments), and a tactically advantageous situation. The Grand Fleet, even accepting a few torpedo hits, would have utterly destroyed the High Seas Fleet with relatively light losses. Then again, part of Gordon’s point is that while all of the decisions that were made at and before Jutland were consequential, there can be said to be no “moment of decision” in which Jellicoe could have made a certain judgment that would have destroyed the High Seas Fleet or allowed it to escape.

All that said, it’s worth noting that a Tsushima-esque battle of annihilation would likely not have shortened the war by a day, but would have killed some 20000 German (and no small number of British) sailors who, in the real world, survived the war. It’s also worth noting that Beatty, Jellicoe, and most of the other officers of the Grand Fleet successfully accomplished the tremendous number of very difficult tasks that were necessary to bring the High Seas Fleet to the point of destruction; they shifted formation and maintained station, avoided submarines, avoided collision, and in general did all of the tasks that are expected by professional naval officers. The conservative vs. crusader distinction is more one of degree than of type; all professional military officers of a particular rank are capable of a large range of tasks.

Rules of the Game is well worth reading, both for specialists in military doctrine and for those with an interest in naval combat. The book is long and detailed, so it helps to be interested in both; I would hope, though, that an interest in either would be enough to draw the reader in and keep her attention.

Mmm… Tasty Dr. Pepper…

[ 16 ] October 27, 2008 |

Looks like Chinese Democracy will finally arrive on our shores…

Somebody pull the plug and let him die with dignity

[ 18 ] October 26, 2008 |

Yellow onions, because that’s all we had in those days.

Prognostication Hall of Fame

[ 0 ] October 26, 2008 |

Steven Warshawsky — proprietor of a “boutique law firm” that defends employers in discrimination suits — has written an epically funny brief on behalf of teh power of teh PUMA. Apparently, he’s met some! And they have websites. There was an old lady at a McCain event, for example, who used to work as a phone volunteer for Hillary Clinton. And some other dude. But that’s nothing, he explains, compared with the dearth of Obama buttons in his neighborhood:

Some more anecdotal evidence of a lack of support for Obama among Democrats: I live in the Upper West Side neighborhood of New York City. You cannot find too many places in the country that are more liberal than that. Walking around my neighborhood during the 2004 presidential campaign, I felt “assaulted” on all sides by Kerry-Edwards buttons, bumper stickers, and posters. This year, there clearly is not the same level of outward support for Obama. It is remarkable (and welcome). Will most of the people in my neighborhood vote for Obama on election day? Of course. Will Obama win New York? Almost certainly. But the lack of enthusiasm for Obama among these Democrats, who I’m sure would be going gaga for Hillary, speaks volumes about Obama’s true prospects for victory this year.

And given the total lack of McCain-Palin signs in my neighborhood, I’d warn Oklahoma Republicans against being too confident about the eventual disposition of their seven electoral votes. After all, Warshawsky was on the money about Giuliani and Mark McGuire, so who knows?

The Blame Acorn Game

[ 14 ] October 26, 2008 |

Peter Dreier and John Atlas break it down.

In her own excellent article on the subject, Dahlia Lithwick has some good analysis of John Paul Stevens’s unfortunate endorsement of the vote fraud fraud earlier this year:

In the end, all roads lead back to John Paul Stevens. He wrote the plurality opinion in last term’s Crawford v. Marion County, which upheld Indiana’s restrictive voter-ID law. Stevens understood that there is no such thing as polling-place vote fraud, conceding that “[t]he record contains no evidence of any such fraud actually occurring in Indiana at any time in its history.” But, continued Stevens, in the manner of someone rationally discussing the likelihood of UFO sightings, “flagrant examples of such fraud in other parts of the country have been documented throughout this nation’s history.” Like, um, an 1868 mayoral election in New York City, he notes, and a single 2004 incident from Washington. Stevens was more worried about shaky “voter confidence” in elections than actual voting. The message that went out from on high was clear: undermine voter confidence. Even if it’s irrational and hysterical and tinged with the worst kinds of racism, keep telling the voters the system is busted.

Each time they spread the word that Democrats (especially poor and minority Democrats) are poised to steal an election, John McCain and his overheated friends deliberately undermine voter confidence.

It’s a great scam; use apocryphal stories of “voter fraud” to create a pretext for further vote suppression, and the Supreme Court will actually cite the completely unfounded fears you’ve created as a justification! Even granting that Stevens was trying to keep the possibility that some vote suppression method might be held unconstitutional in the future, once you’ve accepted “voter confidence” as a valid reason it’s not clear what will ever fail the test…

This is My Dream…

[ 33 ] October 25, 2008 |

Palin wins the 2012 nomination, and an aging, cranky McCain refuses to endorse her.

The Perils of Contrarianism

[ 0 ] October 25, 2008 |

Perhaps someone ought to remind Craig Crawford that an important feature of a well executed Hail Mary pass involves throwing the ball in the direction of the correct end zone….

They Make Ads

[ 16 ] October 25, 2008 |

Oddly enough, I actually am better off that I was four years ago. The wife says it’s because I’m not a “working American.” Blogging is work, hon, and didn’t I just power wash the deck last week?

Global Strike

[ 36 ] October 25, 2008 |

In response to a variety of nuclear mishaps (B-52s flying while armed with nukes, nuclear triggers delivered to Taiwan, personnel falling asleep on nuclear weapons duty), the Air Force has created Global Strike Command, which is intended to concentrate on the management of nuclear weapons. Careless handling of nukes was the proximate cause of the firing of Air Force brass last year, although it’s fair to say that other considerations also affected the decision. As Jeffrey Lewis points out:

I should add that the Air Force is considering some organizational remedies. But the real question is “above the paygrade” the Air Force and, even, the Secretary of Defense. The “lack of focus” that SECDEF described reflects the reality that these weapons are largely irrelevant to the day-to-day mission of the Air Force. That we have nuclear weapons we do not need is evident in the day-to-day neglect by those who handle them.

The primary purpose for the creation of the USAF in 1947 was the conduct of nuclear strategic combat with the Soviet Union. This is no longer a pressing mission, and focusing on it no longer pays the USAF bills. Consequently, attention and diligence falter. This problem can’t be entirely remedied by changing the USAF’s organizational structure (although I think it may well help). The larger problem is that the USAF is a branch that doesn’t have a compelling reason to exist; the nuclear issues (and the F-22 problems, and the airstrike problems, etc.) flow from this.

Bottomless Credibility Pit

[ 0 ] October 24, 2008 |

I remember when Andy McCarthy was just a garden-variety hack, making sudden conversions to farcical constitutional arguments that happen to favor Republican interests (note: his analysis of the unconstitutionality of filibustering judicial appointments expires in January 2009.)   But impending electoral oblivion has apparently removed any remaining mental faculties, causing him to become a crackpot Obama birth certificate truther  (hey, if you don’t spend most of your resources defending against ludicrously frivolous lawsuits filed by people who are to 9/11 what you are to Obama, their claims must be true!), claim that Bill Ayers wrote Obama’s biography,  and to unthinkingly endorse claims about black Obama supporters assaulting McCain supporters so implausible even Michelle Malkin won’t touch them.   What a shame it is to lose one’s mind, such as it was.   

Alas, this is going to get worse before it gets better; I expect his cover story about how Obama was behind the killing of Vince Foster and the Arkansas drug trade no later than March.     And he should take over editorship of the Wall Street Journal op-ed page no later than June…

NYT Endorsement Timeline

[ 13 ] October 24, 2008 |

This representation of New York Times Presidential endorsements is absolutely fascinating. Some tidbits:

  • Grover Cleveland was the first Democrat to be endorsed by the NYT. He shares with Franklin Roosevelt the honor of being endorsed three times.
  • Eisenhower received the endorsement in both 1952 and 1956, and is the last Republican to do so.
  • The NYT endorsed Wendell Wilkie for some reason in 1940.
  • The only third party endorsement came for John Palmer, who garnered 1.3% of the vote in New York and .96% of the vote nationwide in 1896. Not big William Jennings Bryan fans, it’s fair to say.
  • The longest NYT losing streaks are 3; Harding-Coolidge-Hoover, and Reagan-Reagan-Bush.