Big Brother Should Be Watching

Law and Economics Paper #8

Human behavior may be analyzed according to the economic principle of cost-benefit. In committing a crime, a perpetrator analyzes whether the benefits exceed the costs of his punishable act. Cost may be measured according to the corresponding punishment for his criminal act as well as the chances of getting caught. Most of the time, the commission of a crime does not really depend on whether or not the perpetrator knows that what he is doing is wrong.

The cost-benefit principle, like all economic theorems, operates on the premise that all beings are rational. Thus, knowing that what he will be doing is wrong, the criminal decides to commit a crime because he thinks that either he will not be caught (or at least the chances of getting caught are slim) or that his needs outweigh the ramifications of his act. This mental process of analyzing the costs and benefits can be likened to a man's conscience. What spurs a man to do wrong? Perhaps the more important question would be, what could give the potential criminal the appropriate incentive to choose not to commit a crime?

Enter punishment. Is punishment a sufficient deterrent? Most modern criminal systems view imprisonment of a criminal or the meting of penalties as forms of retribution, reformation or deterrence. Is the cost to the state or society of inflicting punishment commensurate to the degree of deterrence or reformation? Imprisonment entails certain costs to be shouldered by the State. So is the execution of a criminal. Some statistics show that the possibility of being subject to the corresponding penalty for a crime does not adequately serve as a deterrence. Neither does incarceration serve as an effective means of reforming a prisoner. In Middle Eastern countries, commission of a crime comes with immediate and drastic punishment, a thief ends up having his hands cut off no matter how high or low the value of the object he stole. However, in the Philippines, the re-imposition of the penalty of death a couple of years ago did not drastically reduce the commission of crimes punishable by death.

Perhaps the key lies in effective enforcement of the law. In Singapore, even a minor infraction of the law is dealt with --- from jaywalking to spitting on the streets, to chewing gum. A perpetrator is more likely to commit an unlawful act if he knows that the probability of being apprehended is slim. This fear of being caught would appear to be more effective than the fear of being meted the appropriate penalty. Hence, in a room full of valuables, a thief would be more likely to steal if there weren't any security cameras than he would if the room didn't have any other form of security. This is not to suggest that we would be better off having a totalitarian government where restriction consists in careful surveillance of the citizens. The deterrence of a crime must not solely be left to the conscience of the criminal. The state must take an active role in ensuring the public and in warning the criminal that any unlawful act would be dealt with swiftly and appropriately.

"He who does not prevent a crime when he can, encourages it."
-Lucius Annaeus Seneca

Right to Free Expression vs. Intellectual Property Rights

(A Blog Reaction to the Article, "A Chinese Blogger's Tale", published in BusinessWeek on March 2, 2006.)

par•o•dy (păr'ə-dē)
n., pl. -dies.
1.
a. A literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule.
b. The genre of literature comprising such works.
2. Something so bad as to be equivalent to intentional mockery; a travesty: The trial was a parody of justice.

It was written in the stars. Hu Ge, by his name alone, was destined for infamy. Although perhaps not in the same league as Weird Al Yankovic who liked to star in his own parodies, Hu Ge made quite a big splash in the vast and unchartered place called the internet. How could he have survived that feat alive without being gunned down by operatives of China’s Secret Service is a mystery. But he survived.

Without the name or the unbelievable luck, would Hu Ge still be able to hide behind the mantle of free expression or would he be hung with the noose of Intellectual Property Law?

Hu Ge is fortunate indeed. He must’ve been born on an auspicious day. There has been a growing trend in the relaxation of the fair use principle espoused by many jurisdictions. Influenced by our colonizers, we copied the fair use doctrine and incorporated it into our Intellectual Property Code* as Section 185 reproduced in part hereunder:

Sec. 185. Fair Use of a Copyrighted Work. -
185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright…In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:
(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit education purposes;
(b) The nature of the copyrighted work;
(c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(d) The effect of the use upon the potential market for or value of the copyrighted work. x x x”

Hu Ge was saved by his caustic tongue, eye for details, and artistic prowess. By the mere fact that he wanted to scoff at Chen’s The Promise, he was given a virtual license to morph something that was distasteful in the first place, to something that was actually funny. Not only was his parody a lawful exercise of free speech, it may also fall under the mantle of “criticism” which specifically is defined by law as “not an infringement of copyright.” American Jurisprudence qualifies the fair use further by categorically stating that a parody is a defense to copyright infringement and falls under the fair use principle.**

Is it good policy?

Should we import the Acuff-Rose doctrine to our sunny shores? It might have disastrous consequences. Not all jurisdictions concur with the Acuff Rose doctrine. In England, Japan and Canada, parody does not serve as a valid defense in infringement cases.***

Adopting the Acuff-Rose doctrine might result in the obsolescence of an author’s moral rights.**** It also detracts from the effectiveness of the fourth fair use principle (The effect of the use upon the potential market for or value of the copyrighted work.).

Intellectual Property Rights were codified into law in order to avoid a tragedy of the commons. The Intellectual Property Code serves to strike a balance to rights that an author might keep in relation to his works as well as to diversity and incentive for the creation of new works. A parody, no matter how funny, expresses disrespect for an author’s work and must properly be made only with the author’s permission. To relax our laws drastically so as to encourage the distortion of original work would be a Hu Ge mistake.

-----------------
*Republic Act 8293
**Campbell v. Acuff-Rose Music, Inc. 114 S. Ct. 1164 (1994).
***http://www.cll.com/articles/article.cfm?articleid=25#fn3
****Article 193, RA 8293

have/havenot2

Law and Economics Paper #7

A rough survey of prevailing Philippine jurisprudence shows that consonant with Galanter and Albiston’s postulates, the haves have indeed come ahead. Of course, the law and trends in legislation serve to equalize the status of the parties appearing in court. In some instances even, the Supreme Court has shown a preference to the have nots, brushing aside procedural rules in favor of greater substantive justice, bandying about the saying “those who have less in life, must have more in law.”

The case of Oposa v. Factoran comes to mind in analyzing the competition between the repeat players (often, but not always, the haves) and one time litigants. In this case, the issue to be resolved existed between a class of people representing the future generation and huge lumber firms backed up by politically powerful players. In ruling for the have nots (the class representing the future generation), one would think that the lumber firms would sustain great losses as a result. It is interesting to note that while being victors in this case, the Court said that to attain relief, one must implead each and every lumber company granted a license to operate. To litigate and implead each and every lumber company would require a lot of resources. To a have not, resources are scarce. Despite this seemingly false victory, the after effects of the decision can be seen to influence future policy considerations. And this, is precisely what the future generation might have wanted in the end.

In the other case of Fortich v. Corona, the industrialists/ rich landowner won over the farmer-beneficiaries of agricultural land under the Comprehensive Agrarian Reform Law. Here, a second motion for reconsideration, a prohibited pleading, was entertained by the court, which ruled in favor of the landowner. In this case, however, it is obvious that external factors such a judicial bias come into operation. Moreover, Supreme Court decisions involving CARL are not always resolved in favor of landowners.

Do the have nots really have more in law? In terms of quick individual impact reliefs, perhaps, it is possible for have nots to come out ahead, if they are in the right. Jurisprudence however, does not reflect settlements made before a case is even commenced. To pursue a case and use all remedies accorded by law to a litigant still requires a lot of resources only the haves have.

haves/havenots

Law and Economics Paper #6

Virtually every aspect of life as we know it, is a struggle between the haves and the have nots. Justice, often characterized as blind and impartial offers a promise to the have nots --- that despite the disparity in economic status, the have nots may still be able to defend their rights through the courts of law, a place where it is possible to get ahead of the competition even with scarce economic resources.

Although the disposition of justice merely involves the application of laws crafted to ensure fairness and equity, extraneous factors come into play as well. Albiston, in her article “ The Rule of Law and the Litigation Process: The Paradox of Losing By Winning,” explores these factors in relation to the federal employment statutes and Family and Medical Leave Act. I agree with Albiston when she said that some forms of winning claims are, in the bigger scheme of things, losses to the one-shot players (employees) than to the party (repeat-players, or often, employers) who ends up paying the claim.

Out of court settlements or cases settled in the arbitration level are highly encouraged by the courts and the law. Hence, in our legal system, we have conciliatory measures in the barangay level, mediation level, pre-trial level (referral to commissioner) and even during and after the trial proper. Settling cases even before a full blown trial proves to be an efficient way of minimizing the use of resources (expending time, money, emotional and physical efforts). In the long run, however, a quick settlement at the arbitration level serves to bind only the parties concerned and does not in any way enrich jurisprudence. As a result, one-time players (usually the “have nots” are not able to generate enough muster backed by jurisprudence in order to support future claims by members of the same class.

What Albiston proposes, is that the haves are masterminds of a plot to ensure that jurisprudence would always end up in their favor and if there exists a possibility that a decision would affect future business or dealings, the haves would more likely settle, even if it involves the payment of a big claim. Although the postulate has shades of a conspiracy theory, it is a rational explanation of behavior through an economic perspective. Indeed, it would be more efficient if repeat players strategize to ensure wins in every court case, in order to avoid harmful jurisprudential precedents. It is unfortunate, however, that strategy does not really enter a one-time player's mind since, for have nots, immediate relief is the economic.

unnecessary precautions

Law and Economics Paper #5

Is it really better to be safe than sorry? The Precautionary Principle presupposes that there is lack of sufficient information to form a rational basis for avoiding risks. Hence, even if the probability of an unfavorable outcome for a certain event is low, the high level of impact of this event necessitates aggressive means of caution or avoidance.

The flaw in this Principle would be the very premise it operates on: lack of sufficient information. Information on all ramifications of a new experiment could be costly and hence, government policy dictates the application of the precautionary principle. I agree with Sunstein when he said in his paper that the precautionary principle is basically useless. Aside from hindering growth, the precautionary principle also disseminates incorrect information. The decision to avoid all risks is basically anchored on the whims of policy makers. Hence, an aggressive campaign against harmful emissions may not necessarily do away with other environmental problems.

Although the precautionary principle's aim is to avoid all risks with high impact, such avoidance of risks is made without looking at the bigger picture. Take cybercrime for instance. The impact of someone hacking into the Department of National Defense mainframe could have deleterious consequences for the whole nation. Does this possibility necessitate a government movement for denial of internet service from the rest of the world? Another example would be the sudden popularity of canola oil over its local counterpart, coconut oil over a decade ago. It was thought that coconut oil was high in cholesterol and harmful to health. It was only a couple of years ago when numerous studies conducted proved that coconut oil was healthier than canola and that the risks attached to canola oil (from canola being mostly genetically modified to be pest resistant) were higher.

From an economic point of view, the precautionary principle is far from being efficient. It makes no sense to totally prohibit an action for the mere low probability of the happening of a high impact event when benefits from this action grossly outweigh the disadvantages. Human behavior is more averse to the possibility of loss than to that of gain. But then, if the gain involves the creation of a means to prevent present losses or inefficiencies, would it not be better to take the risk? Even if the government applies the precautionary principle to some fields, it totally turns a blind eye to others. Hence, the low probability of a high impact unwanted event still exists, but is not seen. What happens then if the unwanted event happens?

A better option would be to encourage a new field (formerly subsumed under the precautionary principle) and if there are any fears surrounding its implementation, to create safeguards or countermeasures in case that 1% probability of an unwanted event happening does indeed happen. This would be a better option that just throwing darts while blindfolded.

89,468,677

Law and Economics Paper #4

There are an estimated 89,468,677 persons living in the Philippines as of July 2006. A person living in the city interacts with more than a hundred people. Each person comes from a different background, has different values, morals and pattern of thinking. Let us assume that each person is rational. When spheres of existence collide, the game starts, or at least the Game Theory’s application begins. Let’s take a common form of interaction--- one which results in injury. Prevention of injury is one of the aims of tort law, another aim is sufficient recompense for such injury caused. But then, who is liable to pay? Can this liability be shared? What is considered as sufficient recompense?

In the Philippines, contract law is more popular than tort law, where causes of action sometimes fall short of mentioning claims based on tort. Aside from actual or compensatory damages, court awards to the injured are primarily based on standards set by jurisprudence. What then would be the effect of these standards on the behavior of the potential tortfeasor and potential victim?

It is difficult to predict how an individual would react to injury and how he translates his suffering in monetary terms. The task, if left to the court does not become any easier. Hospital bills, receipts for medicine and proof of monthly income help quantify the damage done. It’s interesting to note, however, that wrongful conduct resulting in injury proves to have more expensive consequences than wrongful conduct resulting in death. Taking the above factors in consideration, a tortfeasor may end up paying millions for the monthly medical expenses of the injured whereas the going rate for the loss of life is pegged at around P 60,000 only.

In the situation above, clearly, on the part of the tortfeasor/injurer, it would be more efficient to make sure that the injured dies for such a result would be less expensive. What incentive does the potential tortfeasor have to exercise due care and more importantly to refrain from throwing all moral conduct to the wind? On the other side of the coin, would the possibility of being compensated for injury serve as an incentive for the potential injured to be cautious and try avoiding injury?

Again, the parties are assumed to be rational. Rationality dictates that an ideal situation or strategy would involve no injury and no expense. Hence, Bus Operators would make sure that brakes aren’t defective and that the drivers are briefed regarding road safety. Pedestrians, on their part, would use the overpass or the pedestrian lane. In a situation where both parties fail to observe the due amount of care to avoid liability, again, quantifying the same in terms of damages or resulting decrease in liability, cannot be culled from some sort of formula. The judge, it is clear, should not only use standards previously set, but also consider economic principles advanced by Cooter and Ulen.

"Who's been painting my roses red? WHO'S BEEN PAINTING MY ROSES RED? Who dares to taint With vulgar paint The royal flower bed? For painting my roses red Someone will lose his head."

- The Queen in Lewis Carroll’s Alice in Wonderland

sitting bull

Law and Economics Paper #3

Back in college, I remember watching a couple of documentaries about indigenous people and how they were driven out of the land that they had always occupied. To our forefathers, land was not something that could be owned. In a sense, land was classified according to function --- grounds for hunting, for washing laundry, milling rice, holding town meetings, etc. It was the westerners who brought the concept of “owning” land to our shores. Then ensued a long history of land grabbing, claiming and exploitation. It was then when we were made aware that land was something within the commerce of man. But that was not the only instance wherein we discovered something capable of appropriation. Intangibles such as stocks, copyrights, patents soon entered the realm of commerce. The concept of property is being revolutionized --- from corporeal phone lines made of copper wire and rubber to binary packets streaming through phone lines enabling Voice-Over-Internet-Protocol (VoIP).* If property rights can be asserted over something so… intangible (after all, the virtual world is composed of 1’s and 0’s), perhaps it’s only a matter of time when air too, can be within the commerce of man.

We have come a long way from defining property as something that could be grasped with one’s hands. Our laws are patterned with that in mind. In fact, more and more laws are being crafted to address increasing breakthroughs in technology that might further redefine property rights. In our haste to keep up with the changing times, I can’t help but wonder if we are slowly losing focus on the traditional meaning of property. It all began with the Regalian Doctrine. That was the rug pulled out from under our ancestors’ feet. It must have been refreshing to find out that land can be traded in exchange for food and clothing. But then again, it must have been a rude awakening to be told that the ground beneath your feet cannot be used to live off on without the express permission of the king. The laws that we copied from country A, B, C, etcetera don’t really address these problems. Thankfully, some legal luminaries thought up the IPRA and CARL but then again, despite these laws, justice is not always served on the deserving. Would the Hobbes or Coase theorems help?

Technology and economics may have a nexus. For example, the VoIP law’s aim is to encourage competition and improve telecommunications technology. Faced with such a policy, the hard neutral theorems would fit like a glove. For instance, although Globe was mandated to reach certain service levels, not applying the same policy to Sun Cellular could perhaps be described as an efficient solution which ultimately resulted in lower rates offered by competitor service providers.

Indigenous rights and efficiency or economics are hard to reconcile. It would be efficient and economic to award a tract of land to a rich landowner because he can cultivate it, employ more workers or put it to some profitable venture. Does justice lie in reimbursing the indigenous people the value of their land? There is more to this at stake than remuneration. Socio-political factors more often than not come into play. Even King Solomon’s seemingly fair solution of cutting the baby in half was merely a test. What is efficient or economic is always fair, but what is fair may not always be just.

*NOTE: The author is currently taking up the elective Law on Information and Technology

traversing boundaries

Law and Economics Paper #2

Is justice always the economic? Are laws made with efficiency in mind? These questions can be best answered by looking at the policy behind the law. What is right (i.e., what the law says is not wrong) may not always be what is efficient. Legislators craft laws with various intentions in mind, not always legitimate. Whatever intention might be behind the passage of a law, on paper, what always appears would be a reference to state policy, as enshrined in the Constitution. If the intention behind the law cannot be truly discerned, perhaps we need to examine the effect of the law. The obvious subject of scrutiny would be the courts and how courts apply the law.

Courts in the Philippines are courts of both law and equity. As for law, the courts dispense justice according to what the law says. Lady Justice is often depicted blindfolded, holding scales in one hand and a sword in the other. Equity on the other hand, if used apart from torts cases and application of penalties, would not be enough to interfere with the judgment of the court based on law, meaning, no matter how harsh the consequences, no judge in his right mind would rule for the party who values it the most, disregarding laws that are as good as etched on rock. In other words, “win-win” decisions (as in the case of Fortich v. Corona) are not favored if not based on law, even if such would be an equitable and efficient way of dispensing justice.

Due to the high cost of litigation, most disputes are resolved through out of court settlements or arbitrations. The Normative Coase theorem postulates that laws should be structured so as to remove the impediments to private agreements while the Normative Hobbes theorem suggests that the law should be structured so as to minimize the harm caused by failures in private agreements. Hobbes and Coase’s theorems are premised on the existence of private agreements, that both parties in dispute would try to agree on an equitable solution. These theorems are best suited for arbitration laws. It is through this medium that equity, instead of the hard and fast rule of law, can be applied in greater measure. With this in mind, it would be advisable for legislators to consider making economics the basis of laws. Incentives must be given to parties willing to bargain and give out correct private information without overreaching.

The creation of a law ensuring maximum benefit to both parties could prove to be quite a feat. In the last three readings assigned in class, the authors have intimated that law and economics is becoming a popular discipline or school of thought. Such optimistic view, however, cannot be applied to the Philippines yet. There is a need for more economists to traverse the boundaries between law and economics.

We are not neo-classicists

Law & Economics Paper #1


The world does not operate in a vacuum. Neither does the law. Various considerations come into play whenever one would try to explain what the law is and how it operates. Legal theories and ideologies analyzing the law from different perspectives abound. The two introductory readings assigned in class beg the question, what then is the nexus between law and economics?

It is obvious that laws are part and parcel of a country’s economic policy. If the President decides to meddle with tariffs, then her decision must be grounded on sound advice from economists, else, she and her cohorts will be in the poorhouse along with the rest of the country. The legislature could also direct the course of the country’s economy in formulating laws that would, for example, give incentives to manufacturers/producers of agricultural products. It is less perceptible, however, how economics could come into play in shaping legal thought or trends, especially in the Philippine setting.

The Philippine legal system can perhaps be summed up in the separation of powers doctrine. The legislature makes, the judiciary interprets, and the executive implements, the law. This seemingly clear-cut allocation of the powers of government is still subject to the first premise above, that the world does not operate in a vacuum. For instance, the oft-quoted legal maxim, Dura lex, sed lex, suggests that for laws to be effective, there must be no deviation from what the law says. The rigid application of the law, although ideal, is not always the rule. Consider the Manila Hotel case where the Supreme Court suddenly used national patrimony, evoking thoughts of a hundred years of struggle to regain the Filipino identity, in ruling for the losing bidder. One would wonder if the court really knew what it was doing. In Congress, it would also appear that the only thing related to economy would be how much money it would take for a bill to be passed and approved and how much this year’s pork barrel allocation would be. As for the implementation of the law, a P 100 bill would be enough to write off that MMDA ticket. For all the considerations behind each law, decision or implementation of the law, it would appear that economics takes the back seat.

The two readings submit that it might be possible to use principles of economics in shaping/analyzing legal thought. If laws do not operate in a vacuum, how must they be construed and more importantly, what approach must be used in ensuring that the laws achieve their ends? Economics is scientific in its application. In economics, certain conditions always give rise to certain results. Can this approach seriously be used in the Philippine legal setting where even an obvious interpretation of the law can be glossed over so glaringly? Is there a pattern in Philippine jurisprudence that can be explained away by principles in economics? Is it feasible for the judiciary to consider economics as a factor in its decisions? A negative answer might prove to be just a symptom of myopia.

SoaP Opera

“But it turned out when they said this movie was ‘shitty,’ they didn’t mean it ironically. They just thought it would be a piece of shit.”
-New Line marketing president Russell Swartz (from Dateline Hollywood)

Snakes on a Plane was marketed to be a crappy B movie, so crappy that it creates a following, so notorious that people would want to go to a movie theater, shell out some $s and see for themselves how crappy it could be. The very concept of the whole movie, from the crappy title to the crappy marketing strategy (or marketing strategy based on the crappiness of it all) ultimately did not spell out success in terms of revenues. If we were talking about fodder for sarcasm, then perhaps, the movie could be said to be a huge success.

Maybe the producers relied so much on the internet as a revolutionary form of media. The film itself created a strong following in terms of web content. Googling up “Snakes on a Plane” yielded 65,300,000 hits. Did the avant garde marketing successfully relegate “Snakes on a Plane” within the happy bounds of pop-culture? I guess so. But does that mean the New Line Cinema Executives can retire early and buy an island or two off the coast of Fiji? Hehe. I don't think so.

If you think about it, based on the premise of their marketing strategy, the ploy worked well, So well in fact, that maybe people started thinking that the movie was so crappy it wasn't worth spending $10 on. Looking at it another way, maybe it wouldn't have done so well were it not for the online publicity. In the end, what the producers achieved was just another topic for discussion. But then again, is it JUST another topic for discussion? Incorporating bloggers into their marketing strategy created an online macarena/ketchup song monster.

Look again at the figure above. 65 million hits!!! Try typing “Nacho Libre” in the search field and you'll get only 11 million results. Nacho Libre is a seriously funny movie, although it probably didn't gross as well as its producers hoped. What about “Austin Powers?” (who doesn't like Austin Powers?) Only 7.3 million hits.

Wow. That is brilliant marketing strategy. Perhaps if they venture into merchandise, they'd make a killing in sales.

asl?

'The internet is a vast and confusing place, where is a little girl to go?"- Major Motoko Kusanagi, Ghost in the Shell

The internet is a virtual world which transcends boundaries of culture, religion, countries and thought. It is a parallel universe where each transaction, each reality has its virtual counterpart. In this virtual sphere of existence, rules and and norms applicable to the material world may not necessarily be efficiently operationalized in online transactions or inter-relations.

Electronic commerce laws try to establish rules and norms to govern online transactions, but despite the attempt to create a virtual government, the long arm of the law cannot reach every nook and cranny in this infinite universe of 1s and 0s. The concept of government and its functions cannot easily be constituted in a realm where everything is virtual. Who will be governed, how will they be governed and most importantly, who will govern them? Personas over the internet are represented by a mere succession of numbers (IP addresses). These IP addresses can easily be masked and merely point to a general location. Any attempt to discover the identities behind IP addresses tread dangerously on the right to privacy. Existing as it does in the virtual sphere, there are no clear cut territorial lines delineating jurisdiction.

Take one of the 3 inherent powers of any sovereign --- taxation. In ordinary transactions, especially transactions involving services, the situs of the transaction is paramount. The tax situs is the place where the service is rendered. What is the "place" where service is rendered in purely internet-based transactions? Sections 23 of the e-commerce act and Section 33 of its implementing rules try to address this virtual dilemma by pointing to the originator/addressee's "place of business" or usual/habitual residence. But this again begs the question, "Which address?" "Places" in the internet are merely represented by numbers. These numbers are easily masked. Not all businesses have brick and mortar offices and a lot merely exist unregistered in virtual space. Another issue would be the source principle of taxation. How does one tax a resident German national who sells webpage templates through a website whose domain name is registered in Tanzania? If the BIR cannot even efficiently collect taxes in the real world, the possibility of taxing online transactions proves to be a herculean task.

conVIRGINS: taste the possibilities

Convergence is the brainchild of innovation. Or sheer boredom.

Don't you just enjoy watching the home tv shopping network? Here's a food processor that slices, dices, peels, crisscuts and mashes. But wait!There's more! You can use it make your favorite egg salad without the hassle of peeling off the shell! All THAT for the low low LOW price of $4.99! The Japanese are an even more amusing lot. Which people in their right mind can think of inventing an umbrella that extends down to the ankles? A person with that same frame of mind also invented the internet.

Originally conceptualized as a defense network in the United States, the internet evolved into usenet groups for sharing information, and further evolved into the state where it is now: a global village, a world unto itself, cyberspace --- where you can do virtually what you do in real life. You can talk to people, order pizza, drive, watch your favorite show, own a pet and even... *gasp* fall in love!

Much like how cultures have a tendency to melt into each other (taglish, bollywood, latino rap, boondocks, michael jackson--he's black, he's white), convergence (in its techie sense) is an interlacing of technologies, --- a blurring of boundaries. New uses have been discovered for seemingly incompatible inventions. Take our favorite topic in class -- VoIP... calls made through phone lines from circuit switched to internet protocol. Revolutionary! Another case in point: p2p file sharing (napster, limewire, gnutella) from exchanging files to downloading bootleg music to a backdoor portal for hacking. Still revolutionary.

With the creation of a virtual world also came the infirmities of the real world--cybercrime. Despite that downside to the shiny concept of convergence, technology still evolves at a rapid pace (don't you just regret buying that laser disc player? Hehe), and its benefits outweigh its disadvantages. With the internet, we see technology imitating life imitating technology. Do you know that scientists say it may be possible for ODORS to be sent through the internet? Now THAT is convergence. Ü

In the immortal words of Madonna..."Like a virgin, touched for the very first time. Like a virgin... when your heart beats, next to mine..."What has that got to do with CONVERGENCE? Well, nothing really... at least to our knowledge. Who knows, perhaps somewhere, somehow, someone... out of sheer boredom or a flash of inspiration, may know all along.

Oops there goes another rubber tree plant

The UNCITRAL model law, a suggested "pattern" for electronic commerce laws of participating countries, emphasizes the need for wide application and media-neutrality in order to cover all factual situations--- present and future--- wherein the electronic commerce law can apply. This intent is understandable given the rapid rate of growth and obsolescence of technology. However, UNCITRAL's wide application policy may run risks of being vague and overbroad, and thus, may not always facilitate the ease of international transactions.

And experience only teaches us that an overbroad law may be distorted in such a way that its application may run counter to its objectives. Case in point: no one expected the United States to take unilateral action on Iraq's alleged weapons of mass destruction, without UN's approval. And yet, in declaring a first-strike policy and adopting preemptive hostile action, the US found loopholes in the law to justify its unprovoked aggression. If the UN Security Council, the body governing international relations regarding force and warfare barely addressed the US' "good faith" interference, then one can hardly blame us for being skeptical about the broad application of the Model Law.

Section 37 of the E-Commerce Act of the Philippines, perhaps in keeping with this wide-application policy, provides for an interpretation which gives due regard to the law's international origin and need to promote uniformity in its application. Given its all-encompassing language, this clause seems to share the same infirmities of vagueness and overbreadth of the Model Law. It is also potentially conflicting, since even though it encourages wide application --- thereby espousing uniformity among nations, --- it also acknowledges each country's prerogative in enacting its own laws according to State policy.

The provision regarding the application of general principles of international law is nothing new. Weeks from the start of the first day of class, any freshman law student can tell you that general principles of international law form part of the law of the land. Our fear, unfounded as it may seem, is that we might be sacrificing our own state objectives all in the name of uniformity of application . Perhaps in our haste to conform to international laws, much of our ideals and independence as a nation have been compromised. Moreover, one cannot entirely brush away the pessimism borne of experience, that other countries might not necessarily follow the Model Law, given due regard to locally enacted laws.

There is nothing wrong with the desire to be bridged with legal systems and societies of differing technologies seamlessly, but as a rule, the country's E-Commerce law must be tailor-made to the many peculiarities attendant to its circumstances, and with enough safeguards to be in keeping with international standards as well. The Model Law should therefore, at best, serve as a mere framework for any country.

Anyway, the Electronic Commerce law is relatively new. There is no established jurisprudence yet on the matter. As for now, we can only hope that we don't end up being steamrolled by the objectives of the Model Law.