Sunday, December 30, 2001

Judge Elwood F. Melson, Jr.

Decisions made in Family Court are difficult ones. Perhaps no other court deals with issues as difficult and sensitive as the one that involves the State making decisions regarding domestic relations.

This last Tuesday, one of Delaware’s dedicated public servants died. Former Family Court Judge Elwood F. Melson, Jr., was admitted to the Delaware Bar in 1940. He was a Navy veteran, and was elected to a position as a State Senator in 1954. In 1964, he was appointed as an associate judge in Family Court for New Castle County. Judge Melson’s best known legacy was bringing predictability and stability to determinations of child support payments. He created a mathematical formula that was focused on arriving at a fair and equitable settlement between parents regarding payment amounts, while recognizing the needs of children, and of non-custodial parents.

The formula became known as the Melson Formula in Delaware, and was also known in other states and countries as the Delaware Plan. It was years ahead of its time, and influenced many other courts and legislatures. On its face, it appears fairly complex, but an attorney who has used it a couple of times can grasp its intricacies as it balances a good number of issues that previously would have been left to the discretion of a judge. It is aimed at achieving consistent results regardless of who the hearing officer might be in Family Court. It has played an important part in helping other states come up with reasoned discussions as to how their laws on child support should be constructed, and has been adopted by a number of other states.

Melson Formula Articles:

March, 1999 Wilmington News Journal Editorial from Family Court Chief Justice Vincent J. Poppiti
Judge Melson and all who have followed in his footsteps by subsequently updating the formula have tried to balance simplicity with the desire to be fair to both parents and the children. Some states have enacted a straightforward formula that uses a percentage of parents' income, certainly a simple solution, but not necessarily more equitable. The Delaware formula addresses issues such as attributing income to unemployed or underemployed parents, income from second jobs, allowances for insurance and pensions, and support of other dependents.

May, 1999 Wilmington News Journal Editorial from State Rep. Gerald A. Buckworth
A 1988 federal law requires all states to have guidelines for setting and modifying child support obligations. Delaware was ahead of the curve, having instituted such a system nearly a decade earlier.

A discussion of the different models for calculating child support, by Laura Morgan, gives a detailed explanation of the way the Melson Formula is applied, and had the following to say about the Formula:
The proponents of the Melson Formula model argue its internal logic makes it the fairest of the models. Even though the Melson Formula model seems to be the most complicated of the models, its proponents contend that its seeming complexity is superficial; once a practitioner has used the Melson Formula model, its subsequent application is simple.

The Melson Formula model is, indeed, the most internally consistent. It takes into consideration not only special custody arrangements and health care needs, it also takes into consideration each parent's needs. It is thus, on its face, the fairest as perceived by the parent. Where perceived fairness is the most important factor, then the Melson Formula model is the clear winner. Moreover, one expert has found that the Melson Formula model tends to produce less extreme differences in living standards where one parent has a very low income and the other parent has significantly higher income. This again contributes to the perceived fairness of the Melson Formula model. Moreover, because the Melson Formula model takes into consideration commonly occurring expenses, it is consistent and predictable. Its only fault is in its facial complexity.

- William Slawski

Wednesday, December 19, 2001

The Alaskan Rule?

Alaska has historically been said to follow the "English Rule" of loser-pay law. Currently set forth in its Civil Rule 82 , Alaska uses a subtle but effective fee shifting process that is more of a compromise between the American Rule and the English Rule than it is one or the other. The Alaska Rule has maintained a high approval rating among the professionals in that jurisdiction. A study of the Alaska method showed that there are positive and negative impacts from the rule but generally accepts it. And as many studies do, it suggests more studies.

Tuesday, December 18, 2001

American Rule and English Rule

How does our justice system determine who is responsible for attorney fees? Most United States jurisdictions follow the "American Rule" which makes each party responsible for his own legal costs. In contrast, the "English Rule" provides for the loser to pay the winner's legal fees. There is a "shifting" of the law in some U.S. jurisdictions, which is eroding the distinction between the two rules.
Declaration of Independence, 1921

When things get so balled up that the people of a country have to cut loose from some other country, and go it on their own hook, without asking no permission from nobody, excepting maybe God Almighty, then they ought to let everybody know why they done it, so that everybody can see they are on the level, and not trying to put nothing over on nobody.

All we got to say on this proposition is this: first, you and me is as good as anybody else, and maybe a damn sight better; second, nobody ain’t got no right to take away none of our rights; third, every man has got a right to live, to come and go as he pleases, and to have a good time however he likes, so long as he don’t interfere with nobody else...

So begins a reinterpretation of the Declaration of Independence, from the pen of HL Mencken. Mencken was one of the most well known, and prolific newspaper writers, and political commentators of his day. He is also well known for his commentary on American English, and American slang. The Declaration that he updated, in a unique style, is filled with poor english, and bad grammar, with a lot of political incorrectness. But, in many ways, Mencken's translated sentences are much more understandable than some of the 18th century language they replace.
- William Slawski

Monday, December 17, 2001

Larry D. Sullivan in the News (Journal)

Today's Wilmington News Journal features an article on employer offered legal service plans, entitled "Benefits Packages Branch Out," in their Business Monday section. The article includes a picture of Larry D. Sullivan, Esq., and several quotes from him on the how such plans work, and how they can benefit a company's employees.
- William Slawski

Saturday, December 15, 2001

Digital Millennium Copyright Act news

fear of linking
A decision in Federal Court (NYTimes - free registration required) regarding the Digital Millennium Copyright Act (DMCA) and hyperlinks that lead to a software code designed to circumvent DVD movie copy protection, has online journalists concerned about linking to pages that might contain illegal materials. The Judge tried to limit his ruling about including links to material that was illegal under the DMCA by creating a three part test, stating that there had to:
be clear and convincing evidence that the person responsible for the link (a) knew at the time that the offending technology is on the linked-to site, (b) knew that the offending technology is illegal under the D.M.C.A., and (c) created or maintained the link for the "purpose" of disseminating the tainted code.

Many online journalists, and free speech experts are concerned that this ruling will cause journalists to become overly cautious, and not link to pages where there might be newsworthy materials that may or may not be illegal under the DMCA.

criminal prosecution
Another story involving the first criminal prosecution under the Digital Millennium Copyright Act (DMCA) sees Russian software designer Dmitri Sklyarov released from U.S. custody with charges against him dropped by the United States. The article states that he will be supervised for a year during his release, which points towards a "probation prior to prosecution" disposition for the charge. Sklyarov was being held for creating software that would disable the security on Adobe e-books technology. Adobe's e-book software does not allow for the creation of a backup copy, and will only play the e-book upon the computer that it was downloaded upon. In Russia, it is illegal to release software that does not allow for the creation of a backup.

fear of music
Webcasting is something that many college radios stations have embraced fully. Yet they don't have the budget that large commercial stations have. Will a proposed Music Online Competition Act make a difference? Will college stations be forced to stop webcasting? Will they have to pay extremely large fees being applied retroactively? See Why college radio fears the DMCA.

The Electronic Freedom Foundation has started a Campaign for Audiovisual Free Expression (CAFE), which has sections on online censorship and free expression; online content filtering, labeling, and rating; patents, trademark, copyright, and fairuse. A visit to their pages will quickly bring you up to date on some of the concerns many have regarding freedom of expression issues on the world wide web.
- William Slawski

Wednesday, December 12, 2001

Getting Involved

There are times when you wonder who it is that you can petition to add an hour or two to the day. Between work, and homelife, it seems like there's never enough time to do everything that you want to do. I've been meaning to go to a city council board meeting for a long time, but never attended one. Between all the other things that conspire to fill the day, adding "watchdog of the government" to the list seemed to finish last to things like doing laundry, or reading a novel, or working late.

On Monday, Delaware Law Office received an email telling us about a meeting that the Newark City Council was going to have which would determine whether or not the Newark Conservation Advisory Commission would continue to exist. The email was from a university student (thank you Nikki!) who was forwarding a message from the chairman of the Advisory Commission, Steve Dentel. He was asking for a "strong showing of citizens in support of environmental priorities." His email also included a letter he had sent to the Wilmington News Journal that highlighted the need for citizens to take part in some of the many environmental issues that face Delaware. After reading the letter, I felt that the Advisory Commission was headed by someone who cared a great deal, and it would be a loss to the community to silence his voice in the City's decisions about the environment. I don't know much else about the advisory committee except for the fact that it has been around for a while (24 years) and is comprised mostly of people who are concerned about the community, and do try to spend some of their time trying to make things better for others.

I emailed a couple of friends to see if they would be interested in attending, and they got back to me with a positive response. We arrived at the meeting around seven. Newark City Council meetings are normally held at 7:30 pm on the second and fourth Monday of each month (except for this month, which will not have a second meeting). You can normally find the agenda for their meetings posted on their web site, and I give the City a lot of credit for trying to be responsive to the community online.

Delaware is a small state, and it shouldn't have come as a surprise to see at least one or two other familiar faces at the meeting. A friend, and his son's Boy Scout troop were also in attendence, learning about citizenship. In addition to the troop, there were a good number of people in attendance - probably more than the City Council is used to seeing in their meeting room.

I think that the head of the Commission was right. When it came time to have the City Council make a vote on the Ordinance to delete from the City of Newark Code the section on the Newark Conservation Advisory Commission, none of the council members backed the measure. There was to be a public meeting which would allow comments from the public. I think the amount of people in attendance spoke more eloquently to the desire of the community to keep the Commission around than any statements that could have been made. Sometimes just showing up, and being interested is enough.

The meeting lasted little more than half-an-hour. An hour a month to spend with others who care about their community seems like time that can be found.
- William Slawski

Thursday, December 06, 2001

Who is to Blame for Viruses?

You catch a virus from an email that someone sends to you. It then forwards an email out to everyone in your address book listing "your" favorite pornographic sites. Or it damages all of your system files and you lose all of the important documents on your hard drive. Or it destroys all of the picture and music files on your computer, including the ones in the powerpoint presentation that you were going to use at a trade show the next morning to potential clients for your small business.

You spend time and money trying to recover from the damage inflicted, and as you do so, you ask yourself who is to blame. Is it the person who wrote the virus? Is it the parents and teachers of those who released the damaging software into the internet? Is it yourself? Is it the writer of the email program that you use, or the operating system? Is it the intelligence industry, which stands by quietly while such things happen. Is it the legal community which should be righting wrongs that such actions can bring? Is it the government that could regulate many aspects of the internet, as if it were a utility like electrical service?

The answer might be that the responsibility is with all of the above.

Releasing a virus is an act of terroism. Innocent people are inflicted with the harm caused by its release, no matter how noble or misguided the intention was on the part of the person who wrote and set free the software. There's an open source community of software developers who are addressing their political concerns with big business by joining together and working to develop better software than the large corporations. Their attention is focused upon helping others, rather than doing harm. There are people who develop viruses to show off their skills, or to educate people - and these folks don't grasp that the fear, uncertainty and doubt that they are spreading is more harmful than helpful, and that recognition can also be won by writing software that benefits people.

There are teenagers who have virtually unlimited, and unsupervised, access to the internet. Parents have a responsibility to communicate with their children, and to talk with them about what they are doing when they might be spending time learning about phreaking and hacking, and traveling around the world wide web. It's easy for a young adult to apply different rules of behavoir regarding their online activity than their offworld reality because it isn't physically before them, and the implications of their actions online may not seem as immediate or near as what they experience away from the computer screen.

One of the best defenses for viruses is common sense. You receive an email from someone you don't know, which has an attachment. Do you open it? Some people do. You receive an email from someone who you do know, but it has a message and subject line that the person you know probably wouldn't have written. Do you open the attachment? Do you send an email to the sender first, asking about the email? You run a computer, but don't have antivirus software, or haven't updated the antivirus software on a regular basis. Why not? You use an email program that a lot of people say is a target for virus writers, but you don't learn about the safest way of using the program. Isn't that a little like not locking the doors of your car in an area that seems to be in the news regularly as a place where cars are stolen?

Some software does have a reputation for being a target of virus writers. You might have an expectation that they would try to write safer software. Or that they might release patches when problems arise? Or that they would let people know about the safest computing habits to develop when there are people creating problems with malicious programs? Why wouldn't they? Is there a hidden agenda? Or, might they just claim that they are a target only because they have the most popular software? Or that additional security creates additional complexity in software, and that too much complexity makes it too difficult for the average computer user to compute? For instance, an operating system where there is an administrator login that a person would use to install new software and diagnose problems, and a separate login for everyday use where there are restrictions, such as the inability to install new programs or run programs that affect important parts of the operating system and cause damage to the computer. While that's more complex, it's also a lot safer.

Should the intelligence community be educating consumers on best security practices for using a computer? Should they point out security flaws to the manufacturers of software that contain security weaknesses? Should they recommend safer email clients that might have less features, but offer significantly more security? Should they host online or offline educational programs, and build web pages that help people learn about how they can be more secure while traveling on the world wide web? Should internet service providers offer filtered email to clients who want it?

What kinds of lawsuits should happen because of viruses? Virus writers can cause millions of dollars worth of damages. Can civil lawsuits help curb damages? People who write viruses rarely have the monetary resources to address the costs that their virus may cause. Should the software manufacturers be held responsible? In some situations, where there was a vulnerability that was known about, and nothing was done to fix the problem or to warn people, that might seem to be the best response. Should efforts be made to influence lawmakers to impose civil and criminal sanctions against virus writers? Should someone who is found guilty of releasing a harmful virus be kept away from computers? Can law making efforts spearheaded by attorneys be aimed at educational efforts to teach young uses about ethics? These are all possible responses by the legal community.

What role does government have to play? How open to their constituents are they? How aware of this problem? Do they have regular meetings where people can talk to them? Do they have an email address, and an internet site where they keep those they represent informed of their actions? Do they ask for feedback on certain issues? Legislative efforts don't have to be aimed at regulating the internet to the point where the regulations severly limits its use. It can also impose some regulation upon responsibility when it comes to writing software. It can also introduce ideas about online ethics and education to communities.

There are many steps that can be taken by many people to help curb problems caused by viruses, and to help influence those who would release viruses to pursue more positive activities. An interesting article on the subject entitled "Viruses and Worms: More Than a Technical Problem" addresses some of the questions I've asked above. We would enjoy hearing other possible solutions or thoughts on the subject.
- William Slawski

Tuesday, December 04, 2001

Delaware Links

It's not easy finding links to the towns and cities of Delaware. Maybe many of those places are too small. Not every municipality in the state has its own webpage. Some of the following links point to chambers of commerce, and some of them point to commercial sites. One of them is the excellent work of an elementary school class. I will be looking for additional pages, and will add these links to the link page on the DeLawOffice in the near future.

Kent County


New Castle County

New Castle

Sussex County
Sussex County Municipalities

Bethany Beach
Dewey Beach
Dewey Beach
Rehoboth Beach
Rehoboth Beach

If you have any suggestions for other links to homepages for Delaware towns, please let us know. Thanks.
_William Slawski

Monday, December 03, 2001

Delaware Ranked 38th Out of Fifty in Health

The United Health Foundation ranks each of the fifty states in a number of categories to determine which states are the healthiest. While there may be some questions about the methodology of this ranking, Delaware doesn't do very well in most categories.


Overall Ranking 38


Prevalence of Smoking 23
Motor Vehicle Deaths 21
Violent Crime 44
Risk for Heart Disease 33
High School Graduation 37


Unemployment 29
Adequacy of Prenatal Care 37
Lack of Health Insurance 15
Support for Public Health Care 17

Occupational Safety and Disability

Occupational Fatalities 30
Limited Activity Days 43


Heart Disease 31
Cancer Cases 40
Infectious Disease 31


Total Mortality 34
Infant Mortality 47
Premature Death 33

Visit the for more details, and for a more comprehensive explaination of what the different categories mean, see the full report.