Wednesday, January 30, 2002

Former Governor Russell Peterson

Here is the notice that was going around (and was just forwarded to me) about former Governor Russell Peterson speaking at the University of Delaware tonight:

What do Polar Bears, SUVs, and Windmills all have in Common?

They will be a part of the upcoming debate on Delaware and the United States Energy Policy.

Come participate in a public forum on…

Moving Towards a Responsible Energy Future

Taking place Wednesday, January 30, 2002 at 7:00 p.m., at the University of Delaware, Perkins Student Center's Bacchus Theater.

The focus of the discussion will be on the proper path that should be taken to ensure a safe and secure energy future for Delaware and the US for generations to come.

Keynote Speaker for the Event, Former Governor Russell Peterson, followed by a panel discussion with: Governor Peterson, Dr. John Byrne, Director of the University of Delaware's Center for Energy and Environmental Policy; Edwin L. Mongan, DuPont’s Manager of Environmental Stewardship; and Adeline Stevenson of the Gwich’in people of North Alaska. The evening will be M.C.'d by Joseph Otis Minott, Esquire, Executive Director of Clean Air Council.

How To Get There
From I-95 take exit 1B. Drive 2 miles North on 896 (S. College Ave.) towards Newark. Take a Right on Park Pl. At the next light turn left onto Academy Rd. The Perkins Student Center will be on the Right. Pay parking is available in the garage to the right of the Perkins Center, but there is also a free lot adjacent to Russell Hall on the left of Perkins. Once inside Perkins, follow signs to the set of stairs leading down to the Bacchus Theater. SEE YOU THERE!

Sponsored by: Sierra Club * Delaware Audubon Society * Delaware Clean Air Council * Alaska Coalition * Union of Concerned Scientists * Delaware Nature Society * UD Students for the Environment (S4E) * State PIRGs

For more information : Contact John M. Kearney, Clean Air Council, Staff Attorney, 302-691-0112

Tuesday, January 29, 2002

around the law

There's something sad about the "Spirit of Justice," and the "Majesty of the Law," being covered by curtains in the United States' Justice Department's Great Hall.

The definitive source for determining how to write a legal citation is commonly referred to as the bluebook becasue of the color of its binder. The actual name of the volume is the Introduction to Basic Legal Citation, and it is now available online.

USC Law School's Legal Resources on the Web includes a great collection of links to law related sites on the internet.

Orson Scott Card is one of today's premier writers of fantasy and science fiction. About fourteen years ago, he wrote a short story on the subject of censorship called Prior Restraint that looks at artistic expression, and its repression, in a unique manner.

I found out at today's City Council meeting for Newark, that former Delaware Governor Russell Peterson will be giving a speech on Wednesday evening at the Bacchus Theatre in the old University of Delaware Student Center, on the subject of the future of the United State's energy policy. I searched for the time of the presentation on the U of D website, but none was published. If I can locate it tomorrow, I will include it here. If you're in the Delaware area, and have an interest in the environment, this should be an interesting speech. Russell Peterson was the most environmentally conscious governor that Delaware has ever known, and he filled a number of other roles in striving to bring us a better world environmentally. He has been the head of the National Audobon Society, and served on a number of environmental posts in the White House, including chairman of the President's Council on Environmental Quality, and director of the Office of Technology Assessment of the United States Congress. He also served in leadership positions on a number of international environmental groups.
- William Slawski

Monday, January 28, 2002

oyez, oyez, oyez

This is the cry often used to open a court to session.

The American Heritage English Dictionary has this to say of the term:
The courtroom cry "Oyez, oyez, oyez," has probably puzzled more than one auditor, especially if pronounced "O yes." (Many people have thought that the words were in fact "O yes.") This cry serves to remind us that up until the 18th century, speaking English in a British court of law was not required and one could instead use Law French, a form of French that evolved after the Norman Conquest, when Anglo-Norman became the language of the official class in England. Oyez descends from the Anglo-Norman oyez, the plural imperative form of oyer, "to hear"; thus oyez means "hear ye" and was used as a call for silence and attention. Although it would have been much heard in Medieval England, it is first recorded as an English word fairly late in the Middle English period, in a work composed around 1425.

Yes, French was the language of choice in English Courts for a good number of years. It wasn't until the Statute of Pleading was passed in 1362 that English was permitted to be used by litigators. Though the statute became law, the use of french was still permitted, and documents were often filed with the court in french for at least three centuries after the passage of this statute.

Most statutes during that time were also written in french as an early Arms Control Act from 1383 shows.

If you read through the Many Variations of Trial by Combat, which is a description from Thomas, the Duke of Gloucester and constable under Richard II, on the Manner of Conduction of Judicial Duels, you'll see the use of "oyez, oyez, oyez" to begin a trial by combat (from Medieval Life & The Hundred Years War).

From the enlightening article Plain Language--The Arrows in Our Quiver, we find some other words that were derived from this use of french in English courts, including: action, appeal, attorney, claim, complaint, counsel, court, defendant, evidence, indictment, adjudge, judgment, jury, justice, parol, party, plaintiff, plea, sentence, sue, summon, and voir dire.

Will terms like "oyez, oyez, oyez" continue to be part of our legal system? The Statute of Pleadings was intended to allow the people being represented in court the opportunity to understand what was being said during legal proceedings. Plain english language used in courtrooms and legal documents today would go a long way towards the same result. But the tradition recitation of oyez three times will probably continue on as part of the historic tradition of the courts.

(Any discussion of the use of the term "oyez" should also point towards one of the best resources on the web about the US Supreme Court, which is the Oyez Project from Northwestern University.)
- William Slawski

Saturday, January 26, 2002

politics of search engines

Have you ever considered that the methods that search engines use to index the web may be based more upon political views than upon limitations based upon technology? Do search engines run counter to the architecture of the web? A couple of years old, but very well researched and thought provoking, the article Shaping the Web: Why the politics of search engines matters gives a detailed analysis of this subject, and comes up with the following as one of its authors' conclusions:
As a first step we would demand full and truthful disclosure of the underlying rules (or algorithms) governing indexing, searching, and prioritizing, stated in a way that is meaningful to the majority of Web users. Obviously, this might help spammers. However, we would argue that the impact of these unethical practices would be severely dampened if both seekers and those wishing to be found are aware of the particular biases inherent in any given search engine. We believe informing users, on the whole, will be better than the status quo, in spite of the difficulties.

women and the law

Law in the United States has historically been a profession predominantly represented by males. If you visit a law school, you might find that there is a very equal mix of male and female students on campus. That has not always been the case. The Women Lawyers Association of the Los Angeles County Bar Association has put together a site entitled Women's Legal History Biography Project, which is a great collection of articles and biographical material on women working in the legal field.

the socratic method

In law school, they taught us that the socratic method was a way of teaching that involved the law school professor standing in front of the class and grilling students on the facts, holdings of law, and meanings of cases. Lectures, and plain speech about legal methods, and analysis were the exception rather than the rule. Of course, that was
how many of the professors learned about teaching from their law school professors. Normally, the academic background required to teach law school involved a law degree, and experience as an attorney, and not a degree in education. What if they got it wrong?

An author who has previously written on serious scholarly subjects such as Shakespeare, has recently written a book called Gilligan Unbound: Pop Culture in the Age of Globalization. In an essay entitled The Art in the Popular, he explains why he would write about less serious subjects as Star Trek and Gilligan's Island. In doing so, he also explains how law schools have gotten the socratic method wrong.
The process of beginning with popular culture and attempting to ascend from it to higher levels of reflection has a name: the Socratic method. I am not talking about the parody of the Socratic method used by law professors and other academics, but the real thing--the philosophic procedure Plato shows Socrates pursuing in dialogue after dialogue. In the most philosophically autobiographical passage Plato ascribes to his teacher, Socrates explains in the Phaedo (96a-100a) that he became disillusioned with what we would call scientific attempts to understand the universe in terms of material causes. So he decided to turn from the study of the heavens to the study of human things, and that meant studying the accounts of the universe people give when they speak to each other in the city. For Socrates, what human beings say about their world is the best starting point for philosophy, and his aim, as Plato shows, is always to move in the direction of true knowledge from the confused and contradictory opinions people commonly express about the most important subjects, such as justice and the good.

educational resource guide to congress

CongressLink includes a great amount of historical information, and present day information about Congress. It also includes some truly great educational resources, like the Winning the Seat: A Congressional Election Simulation as a lesson plan for high school and college students. It looks like the type of classroom activity that could be a lot of fun.
- William Slawski

Wednesday, January 23, 2002

Around the Law

What were the important influences in your life when you were 16 years old? The Papers of George Washington look at our first president's school exercises, and cite the "Rules of Civility and Decent Behaviour in Company and Conversation," as having a profound influence upon him in his teen years.

Going back a few hundred years further, what did the people of the 15th century do for pleasure? The Richard III Society tells us about Delights of Life in Fifteenth-Century England, which details some interesting pastimes and diversions.

Lysander Spooner wrote an essay in 1852 on the common law right to a trial by jury. The document is a long one, but is an interesting discussion of the right to have a jury trial, and the right to be a juror.

At a Newark City Council meeting recently, a member of the public spoke before the Council as a representative of a church on Main Street. The City Council has been reviewing the many different liquor licenses held by different establishments in Newark. The rule that defines each licensee's rights under their license vary depending upon the year that the license was granted. A new restaurant near the church has applied for a liquor license, and it appears that the church is interested in seeing that the City consider very carefully the impact upon the church that granting such a license might have. The thought of having a church for a neighbor has been in the back of my mind since the meeting a couple of weeks ago, and when I came across an article on such a subject, it raised some additional things to think about. Struggling with Churches as Neighbors: Land Use Conflicts Between Religious Institutions And Those Who Reside Nearby, brings forth some points I hadn't considered.

The United States Chamber of Commerce today released a poll which makes the Delaware judicial system look very good. This survey of corporate counsel ranked each state in a number of categories, including judge's impartiality and competence, juries predictability and fairness, and a number of other categories. Delaware finished first amongst the fifty states overall. Delaware also finished first amongst all the states
in each individual category ranked.
- William Slawski

Forum Selection and Web Sites

If a problem arises that might cause someone to try to sue someone else, the person bringing the suit usually makes a decision regarding which court they will bring the case in. This is known as "forum selection."

If you have a web site that people can access for free and it isn't interactive, chances may be that you can successfully argue that your website is only located in the state where it is written. But, when you start charging someone else money to access a web site, or add interactive elements to the site such as a unique login, there are a number of new risks that you may face.

One of those is that a court might make a decision that your website is now located in any number of locations because it is actively engaged in commerce in those other locations.

That's where a forum selection clause comes in. It isn't difficult to make a forum selection clause a part of the conditions to subscription to the website. Keep it simple, easy to find and understand, and in plain english.

To find out more, an article in Online Journalism Review from last November covers forum selection in The Revenue Booby trap.
- William Slawski

Tuesday, January 22, 2002

Martin Luther King, Jr.

From "I've Been to the Mountaintop," by Dr. Martin Luther King, Jr:

You see, the Jericho road is a dangerous road. I remember when Mrs. King and I were first in Jerusalem. We rented a car and drove from Jerusalem down to Jericho. And as soon as we got on that road, I said to my wife, "I can see why Jesus used this as a setting for his parable." It's a winding, meandering road. It's really conducive for ambushing. You start out in Jerusalem, which is about 1200 miles, or rather 1200 feet above sea level. And by the time you get down to Jericho, fifteen or twenty minutes later, you're about 2200 feet below sea level. That's a dangerous road. In the days of Jesus it came to be known as the "Bloody Pass." And you know, it's possible that the priest and the Levite looked over that man on the ground and wondered if the robbers were still around. Or it's possible that they felt that the man on the ground was merely faking. And he was acting like he had been robbed and hurt, in order to seize them over there, lure them there for quick and easy seizure. And so the first question that the Levite asked was, "If I stop to help this man, what will happen to me?" But then the Good Samaritan came by. And he reversed the question: "If I do not stop to help this man, what will happen to him?"

Sunday, January 20, 2002


A snowy day in Delaware; our first winter storm of the season. It was a good day to kick back, and reflect upon the past. Some history, from various sources on the web:

In the period of time between 1774 and 1789, a group of conspirators gathered together to discuss governance and treason, and became the fathers of our country. The Library of Congress captures many of the difficulties they faced, using a combination of narrative and primary resources including documents, paintings, and prints in a presentation entitled To Form a More Perfect Union: The Work of the Continental Congress and the Constitutional Convention.

Colonial Hall: Biographies of America's Founding Fathers is an introduction to some of the people who shaped the country. In addition to biographies of those from other states, Delaware is represented by Ceasar Rodney (you may have seen him on the back of the Delaware quarter), George Read, and Thomas McKean.

Black Robes and powdered wigs are symbols of office that many attribute to the Judiciary. In Wigs, Coifs, and Other Idiosyncrasies of English Judicial Attire, we learn about how these articles of clothing came to be associated with the legal system.

One of the historical and legal precedents for the Declaration of Independence came from a gathering near where Windsor Castle stands today, on June 15, 1215. The document signed on that day gave the colonists an example they drew strength from, as described in an article called Magna Carta and Its American Legacy.

Judicial review, and the power of the Supreme Court to declare an act of the legislature or executive unconstitutional found its origin in a decision of Chief Justice John Marshall. A page on the case involved, Marbury v. Madison, is an introduction to the history and the people involved in the controversy behind the legal opinion.
- William Slawski

Saturday, January 19, 2002

National Identification Cards
There's a lot of debate on the subject of national identification cards. A good number of organizations are pointing towards (often uncited) polls that suggest that the American public is willing to embrace such cards. Any measures that can help prevent another tragedy like the terrorist acts on Septermber 11th are worth considering. But we also have to keep in mind that our civil liberties might be placed into peril by setting up a system that could amount to an internal passport system. There are also many potential risks that could come about because of the use of a national identification system.

The most recent frenzy of opinion back and forth on the value of such a system was initiated by a multi-state organization that includes amongst its members the motor vehicle administrators for all of the states. This organization, the American Association of Motor Vehicle Administrators (AAMVA), is recommending standardization of practices for the issuance of Driver's licenses, security features on the licenses to reduce fraud, and a database of information shared by government and private organizations to enable them to use the cards for verification purposes.

Much has been written on the subject, and there is no doubt that debate will continue. Here are links to articles and web sites where some issues are being raised on Driver's Licenses as national identification cards:

New Security Standards Urged For Driver's License
(Information Week, January 9, 2002)
"Under the proposals, the databases associated with the new licenses would let nongovernment entities such as airlines, retailers, and banks access information about individuals to verify their identities. "

States Seek National ID Funds
(Washington Post, January 14, 2002)

All 50 states agree to upgrade driver's licenses
(The Boston Globe, January 14, 2002)

National ID card an idea that stirs lots of questions
(Union-Tribune Publishing Co., January 14, 2002)
Some interesting questions regarding problems that a national ID system might bring with it.

The Case for a National ID Card
(Time Magazine, January 14, 2002)
We should have a national ID because it will keep our senators from being strip searched at the airport?

ACLU Skewers DMV Proposal As ‘De Facto’ National ID
(Washington Post, January 15, 2002)

Not-So Smart: The national ID debate goes on
(National Review, Jauary 16, 2002)

ALERT: National ID Cards from DMV?
(Electronic Frontier Foundation ACTION ALERT, Jauary 16, 2002)
The EFF is urging people to contact the American Association of Motor Vehicle Administrators to voice their concerns with proposed changes to driver's licenses.

National ID Cards: 5 Reasons Why They Should Be Rejected
Some very good points worth careful consideration.

Special Task Force on Identification Security
(American Association of Motor Vehicle Administrators, January 2002)
Recommendations and expected results of the use of Driver's licenses as secure identification cards adhering to national standards.

Wild Card: We need a better ID, but not a national superego
(Wall Street Journal Opinion Page, January 16, 2002)
Delaware's Former Governor Pete du Pont has an alternative suggestion, which is being put into action by Delaware Representative Mike Castle.

Delaware Division of Motor Vehicles
While silent on the subject of a national ID system, they do have information about the types of information you need to provide them when you apply for a driver's license in Delaware.
- William Slawski

Friday, January 18, 2002

State of the State

This is the time of year in most states when the governor shares with the legislature and the judiciary a message about how government is handling the resources entrusted to it by the people. Chances are good, if you're a US resident, that you can visit the homepage of your state and see a link to a state of the State message from your governor.

Delaware's page contains the words to the State's latest state of the State address. Delaware's Governor Ruth Ann Minner addressed the Delaware General Assembly yesterday, and informed them of the government's activities over the past year, and of the State's prospects for the coming year. Our Governor focused her speech on the first year of her term in office, and the many difficulties and decisions that had to be made. There were successes too, and she gave out credit for the dedication and support that many State Employees have given throughout the State to meet the challenges that they've faced.

The State's budget is extremely tight this year, and some difficult decisions had to be made. The budget, as proposed by the Governor, will be released to the General Assembly next week. It carries only a two percent increase over last year's budget. Regretfully, one of the items that is not included is a pay raise for those dedicated State employees. This past year saw a two percent raise for employees of Delaware. The State employs one of the largest groups of Delawareans amongst any Delaware employers. On the plus side, there are no anticipated layoffs of State employees.

Around the Law

Just when should you stop serving someone drinks?
The Associated Press reviewed 700 alcohol related violations in Montana over the last four decades, and only found four where businesses were cited for serving someone who was already drunk. One of the reasons cited was that police enforcement agencies don't have the manpower to have undercover officers sit in bars and taverns, and watch to see whom bartenders are serving.

A federal Judge denied a request to televise the trial of Zacarias Moussaoui today
Left open though was the possiblity that radio coverage of the trial might take place. We'll see hear.

A poll conducted on behalf of the IRS: More are comfortable with cheating
Is the IRS broken? That's what this poll seems to indicate. What are they going to do about it? Technology is one answer - one billion dollars worth over the next two years.

Discover uncovers a powered exoskeleton that could turn a combatant into a supersoldier
But what happens when your battery runs out in the middle of a firefight? Why do I have this vision of the Everyready Bunny leading troops into combat?

Worst Patents of All Time?
I know that an Australian patented a wheel last year to protest of the ease with which a person could gain a provisional patent. Scientific American's list is the shortlist of an archive compiled by the creator of How did some of these get past the reviewers in the patent office?
- William Slawski

Thursday, January 17, 2002

Tricks of the Trade
By Private Investigator Michael T. O'Rourke

Question: I am attempting to determine where our client's ex-husband is telephoning from. Numerous phone calls have been received from an unknown number. The Caller ID shows the number was blocked (*67) prior to calling. Knowing the number he called from would assist in locating him for Service of Process for a Child Support matter, and be very useful as an investigative tool. Do you have any suggestions?

Answer: Assuming the originating caller is using a traceable line to begin with, but is blocking the information by using *67, then yes, those details can be obtained by subpoena. Remember that *67 is a service provided by the Telephone Company, and therefore can see anything it may hide for a caller. If the caller utilizes one of the several methods that route the call in such a manner the Telephone Company cannot monitor, then a subpoena will be useless. Pre-paid cellular phones, some pre-paid calling cards, "daisy chain" techniques such as having the operator place the call, or routing the call through a third party from a non SS7 supported Call Operator will be untraceable. This is valuable information in itself. If you needed to make a call that was completely untraceable, call the operator from any phone, explain each time you attempt to call a particular number you get an "all circuits are busy" message. The Operator will attempt the call for you, and the call will be untraceable to the receiver. Remember, *67 only blocks your number from appearing on a Caller ID unit, the call is indeed traceable.

Question: Are there any phone directories for mobile phones?

Answer: Yes. Try or (editor's note - as of 3/2/03, both of these pages seem to have disappeared )

Question: With the amount of personal information readily available on the Internet, I am concerned with "Identity Fraud". If a situation as unfortunate as this were to happen, how could I limit the amount of damage?

Answer: Contact all of your credit grantors. Verify all recent purchase transactions and account activity. Accounts with unauthorized activity should be closed, and passwords added to accounts that have not been compromised. Verify all account information. Obtain information regarding dispute policies regarding fraudulent charges.

Document all calls, names of persons spoken to, duration of calls, and associated expenses. It is possible expenses will be recoverable in the event of a civil suit, or restitution as a result of criminal prosecution. Documentation will also assist in repairing credit files.

Contact the TransUnion, Equifax, and Experian credit bureaus. Advise them of your situation and request copies of your credit report. Verify all trade lines and inquiries as valid. Document unknown trade lines, request contact phone numbers, and close the accounts, or prevent new accounts from being opened as a result of an inquiry. Insist a "Consumer Statement" be added to your credit file. Request dispute forms to correct fraudulent trade lines. Verify all addresses on your credit file are accurate. Remove any fictitious addresses. The most important address is your current address. If a fraudulent address remains on your file you will aggravate the situation by having additional pre-approved lines of credit sent to this address.

Report the incident to local law enforcement, the Social Security Administration, Department of Motor Vehicles, and other Offices where identity fraud could harm you. Be persistent with law enforcement and insist on a Police Report. Most importantly, hire a Private Investigator to assist you, your creditors, and Law Enforcement, in locating the perpetrator. In addition, you should consult an attorney to discuss recourse and options.

Det. Michael T. O'Rourke is a Member of the National Association of Investigative Specialists, The National Association of Professional Process Servers, and Sustaining member of the Delaware Paralegal Association. A Court Certified Special Process Server, and a Licensed Private Investigator, Michael specializes in Insurance Defense.

He invites your questions to:

Loss Solutions, Inc.
824 N. Market Street, Suite 425,
P.O. Box 368,
Wilmington DE 19899-0368.
(302) 427-3600

Or you may e-mail him at DE Irish

Wednesday, January 16, 2002

Around the Law

Highlights of the Supreme Court's 2000-2001 Term

Nazi Saboteurs Captured! FDR Orders Secret Tribunal
The precedent for military tribunals and the treatment of al Qaeda prisoners.

'20/20'-backed DNA testing clears accused rapist, leads to new charges
Baltimore officials have been pushing for more money to conduct DNA tests in cases. The television newsprogram from ABC covered half the costs for DNA testing on 50 cases, leading to some results that might not otherwise have happened...

Fees for filing civil cases in Delaware will increase on February 1st
Justice of the Peace Courts haven't increased their fees for civil cases in almost a decade. Starting in two weeks, that will change. Other Delaware Courts are looking at fee increases also.

A bill imposing stricter penalties for DUI cases proposed
The amount of time that a license would be taken away from someone convicted under a Delaware DUI statute would increase under this proposed law. This would affect people with Blood Alcohol Contents (BAC) greater than .15, and would increase as the BAC level increased.
- William Slawski
Legal Tender
Have you ever handed someone cash to pay for a transaction and been told, "we only accept checks or money orders". I thought that cash was "legal tender for all debts public and private". After all, that's what it says on the money.

Title 31, Subtitle IV, Chapter 51, Subchapter I, Section 5103 (whew!) says it slightly differently. It says: "United States coins and currency (including Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal tender for all debts, public charges, taxes, and dues. Foreign gold or silver coins are not legal tender for debts". Notice it does not use the word "private", but it does say "all debts".

The Department of the Treasury, in defining a previous version of the law, when the word "private" was still there, indicated that it is not binding upon private businesses unless a state law says so. Well, maybe the problem is that the U.S. Government doesn't have the constitutional authority to mandate acceptance of the currency by private citizens of the States.

Let's see, Article 1, Section 8, of the United States Constitution sets forth that congress has the authority "...To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures". This doesn't expressly give the authority to enforce acceptance by private citizens, so I guess that authority was retained by the individual states.

It is interesting to note that congress does however have the authority to set the value of the money of other countries. I wonder how the other countries feel about that?

But none of this will help you when you go to the Delaware State Police (a government and thus public entity) to be fingerprinted, as part of a job application, because they don't accept cash. They choose to violate the law, in my opinion. They probably do so for very legitimate business or efficiency reasons. Will they apply that same test to me if they think that I have violated a traffic law?

Tuesday, January 15, 2002

Court Resources Task Force
One of the most important steps that a business can take when faced with harsh economic times is to review its business practices, internally and externally. Delaware Courts are doing just that, and garnishing a varied set of reactions in response.

The State of Delaware has had good economic times in recent years, finding them selves facing surpluses for a long stretch. However, the last couple of years have left the State struggling to find funding for the many services it provides.

It may sound like a generalization, and to some degree it is, but judicial branches have never traditionally experienced a windfall of generosity from legislative branches. The legislature controls the purse strings of the State.

In Delaware, the Chief Justice normally presents his budgetary requests to the General Assembly in an Annual State of the Judiciary Address. Last week, Supreme Court Chief Justice E. Norman Veasey delivered his yearly address and announced a plan that sprung into action with his creation of a task force.

The Court Resources Task Force is not only reviewing business practices, but it is also considering alternative sources of funding beyond the traditional means of securing it through the legislative budgetary process. The Task Force met for the first time this last Monday, and the 16 member panel broke down into a number of groups to start studying different aspects of enhancing the Court’s financial situation.

Local opinion writer Ron Williams take on this subject is that the General Assembly should respond as quickly as possible by coming up with the money necessary for the courts to function (before they embarrass themselves).

Columnist Al Mascitti provides an alternative solution to court funding by suggesting an additional fee; a tax or surcharge on litigants in civil suits of 1% of attorney fees and awards. While that suggestion raises its own ethical questions, Mr. Mascitti shows that he understands the spirit of the task force – which is to examine other possibilities and consider them.

Courts don’t rely solely upon funding from the General Assembly. Often, many programs within the Judicial Branch begin with money received from federal grants. To not explore those opportunities, and others would be a shame.

If the biggest impact this task force makes is that the Court reviews its own business practices and finds cheaper and better ways to perform its functions, then its purpose would have been well served, regardless of what the pundits might say.
- William Slawski

Monday, January 14, 2002

Can Fingerprints Match in Court?
Recently, a federal court Judge ruled that experts cannot tell juries that two fingerprints match. There were a couple of reason for this. One was that in most cases, fingerprints being used as evidence are only partial prints, and "matching" is a difficult thing to do. But, even more importantly, there are a number of different scientific standards being used by forensic fingerprint experts. There is no clear consensus as to which is the correct one.

The Court used the Daubert Test while reviewing the admission of expert testimony on fingerprints, and decided that while the experts couldn't tell the jury that the fingerprints in question were a match, both sides could testify as to how the fingerprints were obtained and the similarities between them. A pretty good summary of the Daubert Test, with examples can be found on a page from Dr. O'Connor's Criminal Justice MegaLinks called Admissibility of Scientific Evidence under Daubert. Note that Delaware does not use the Daubert Test, or the Frye Test that it replaced in many jurisdictions. Instead, Delaware uses its own rule.
- William Slawski

Thursday, January 10, 2002

Around the Law

Human Barcodes?
Radio-frequency identification chips compatible with human tissue may be used for pacemakers, defibrillators and artificial joints. How would this be useful?
"If you're a pacemaker user and you're in an accident and in shock, an ambulance attendant could scan the body and retrieve information about the device," Bolton said. 'The chip could provide information about the [pacemaker's] settings, who its manufacturer is and whether you have any medical allergies.'"

Fake euro note found
It didn't take long for someone to start funny business with funny money.

Economics of Intellectual Property
A thought provoking discussion of the conflict that arises when you consider the ownership of intellectual property, and the benefits that society reaps when information can be shared freely. (from Kuro5hin)

Franchise Regulation: Past, Present and Future
An excellent introduction to franchises, the growth of the franchise business model, problems facing franchises, and their regulation.

IRS' Case of the Missing Laptops
These guys crunch a lot of numbers, and you would expect that they've gotten pretty good at it by now. But when an audit revealed that a large amount of equipment appeared to be missing... This is news much in the same way that a "man bites dog" story might make the front page of the newspaper. You hear of the IRS auditing people, but rarely of the IRS being audited.

The Many Futures of Music, Maybe One of Them Real
(NYTimes - free registration required) There are so many directions that musical artists, the recording industry, and the internet can go in that it's difficult to tell which path will be followed. A nice analysis of the possible futures of recorded music, and of some of the artistic, business and government forces shaping that future.

- William Slawski

Wednesday, January 09, 2002

Delaware and Spam

...from Title 11 of the Delaware Code

§ 931. Definitions.

As used in this subpart:

(1) "Access" means to instruct, communicate with, store data in or retrieve data from a computer, computer system or computer network.

(2) "Computer" means a programmable, electronic device capable of accepting and processing data.

(3) "Computer network" means:
a. A set of related devices connected to a computer by communications facilities;
b. A complex of 2 or more computers, including related devices, connected by communications facilities; or
c. The communications transmission facilities and devices used to interconnect computational equipment, along with control mechanisms associated thereto.

(4) "Computer program" means a set of instructions, statements or related data that, in actual or modified form, is capable of causing a computer or computer system to perform specified functions.

(5) "Computer services" includes, but is not limited to, computer access, data processing and data storage.

(6) "Computer software" means 1 or more computer programs, existing in any form, or any associated operational procedures, manuals or other documentation.

(7) "Computer system" means a computer, its software, related equipment and communications facilities, if any, and includes computer networks.

(8) "Data" means information of any kind in any form, including computer software.

(9) "Person" means a natural person, corporation, trust, partnership, incorporated or unincorporated association and any other legal or governmental entity, including any state or municipal entity or public official.

(10) "Private personal data" means data concerning a natural person which a reasonable person would want to keep private and which is protectable under law.

(11) "Property" means anything of value, including data.

(12) "Electronic mail" or "e-mail" means any message that is automatically passed from an originating address or account to a receiving address or account;

(13) "Originating address" or "originating account" means the string used to specify the source of any electronic mail message (e.g.;

(14) "Receiving address" or "receiving account" means the string used to specify the destination of any electronic mail message (e.g.;

(15) "Electronic mail service provider" means any person who:
a. Is an intermediary in sending and receiving electronic mail; and
b. Provides to end-users of electronic mail services the ability to send or receive electronic mail.

(16) The "Internet" is a hierarchy of computer networks and systems that includes, but is not limited to, commercial (.com or .co), university (.ac or .edu) and other research networks (.org, .net) and military (.mil) networks and spans many different physical networks and systems around the world.

(17) "Commercial electronic mail" or "commercial e-mail" means any electronic mail message that is sent to a receiving address or account for the purposes of advertising, promoting, marketing or otherwise attempting to solicit interest in any good service or enterprise.

(64 Del. Laws, c. 438, § 1; 72 Del. Laws, c. 135, § 3.)

§ 937. Unrequested or unauthorized electronic mail or use of network or software to cause same.

A person is guilty of the computer crime of unrequested or unauthorized electronic mail:

(1) When that person, without authorization, intentionally or recklessly distributes any unsolicited bulk commercial electronic mail (commercial E-mail) to any receiving address or account under the control of any authorized user of a computer system. This section shall not apply to electronic mail that is sent between human beings, or when the individual has requested said information. This section shall not apply to the transmission of electronic mail from an organization to its members or where there is a preexisting business relationship. No Internet/interactive service provider shall be liable for merely transmitting an unsolicited, bulk commercial electronic mail message in its network. No Internet/interactive service provider shall be held liable for any action voluntarily taken in good faith to block the receipt or transmission through its service of any unsolicited, bulk electronic mail which it believes is, or will be, sent in violation to disconnect or terminate the service of any person that is in violation of this article; or

(2) When a person uses a computer or computer network without authority with the intent to: Falsify or forge electronic mail transmission information in any manner in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider or its subscribers; or

(3) When a person sells, gives or otherwise distributes or possesses with the intent to sell, give or distribute software which:
a. Is primarily designed or produced for the purpose of facilitating or enabling the falsification of electronic mail transmission information or other routing information;
b. Has only limited commercially significant purpose or use other than to facilitate or enable the falsification of electronic mail transmission information or other routing information; or
c. Is marketed by that person or another acting in concert with that person's knowledge for use in facilitating or enabling the falsification of electronic mail transmission information or other routing information.

(4) For the purposes of this section, conduct occurring outside of the State shall be sufficient to constitute this offense if such conduct is within the terms of § 204 of this title, or if the receiving address or account was under the control of any authorized user of a computer system who was located in Delaware at the time he or she received the electronic mail or communication and the defendant was aware of circumstances which rendered the presence of such authorized user in Delaware a reasonable possibility.

(72 Del. Laws, c. 135, § 1.)

§ 938. Failure to promptly cease electronic communication upon request.
(a) A person is guilty of the computer crime of failure to promptly cease electronic communication upon request when that person intentionally, recklessly or negligently, fails to stop sending commercial electronic mail to any receiving address or account under the control of any authorized user of a computer system after being requested to do so. All commercial electronic mail sent to any receiving address within the State shall have information to the recipient on how to unsubscribe or stop further receipt of commercial electronic mail from the sender.

(b) For the purposes of this section, conduct occurring outside of the State shall be sufficient to constitute this offense if such conduct is within the terms of § 204 of this title, or if the receiving address or account was under the control of any authorized user of a computer system who was located in Delaware at the time he or she received the electronic mail or communication and the defendant was aware of circumstances which rendered the presence of such authorized user in Delaware a reasonable possibility.

(72 Del. Laws, c. 135, § 1.)

§ 939. Penalties.

(a) A person committing any of the crimes described in §§ 932-938 of this title is guilty in the first degree when the damage to or the value of the property or computer services affected exceeds $10,000.

Computer crime in the first degree is a class D felony.

(b) A person committing any of the crimes described in §§ 932-938 of this title is guilty in the second degree when the damage to or the value of the property or computer services affected exceeds $5,000.

Computer crime in the second degree is a class E felony.

(c) A person committing any of the crimes described in §§ 932-938 of this title is guilty in the third degree when:
(1) The damage to or the value of the property or computer services affected exceeds $1,000; or
(2) That person engages in conduct which creates a risk of serious physical injury to another person.

Computer crime in the third degree is a class F felony.

(d) A person committing any of the crimes described in §§ 932-938 of this title is guilty in the fourth degree when the damage to or the value of the property or computer services affected exceeds $500.

Computer crime in the fourth degree is a class G felony.

(e) A person committing any of the crimes described in §§ 932-938 of this title is guilty in the fifth degree when the damage to or the value of the property or computer services, if any, is $500 or less.

Computer crime in the fifth degree is a class A misdemeanor.

(f) Any person gaining money, property services or other consideration through the commission of any offense under this subpart, upon conviction, in lieu of having a fine imposed, may be sentenced by the court to pay an amount, fixed by the court, not to exceed double the amount of the defendant's gain from the commission of such offense. In such case, the court shall make a finding as to the amount of the defendant's gain from the offense and, if the record does not contain sufficient evidence to support such a finding, the court may conduct a hearing upon the issue. For the purpose of this section, "gain" means the amount of money or the value of property or computer services or other consideration derived.

(g) Amounts included in violations of this subpart committed pursuant to 1 scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the degree of the crime.

(h) For the purposes of this subpart, the value of property or computer services shall be:

(1) The market value of the property or computer services at the time of the violation; or
(2) If the property or computer services are unrecoverable, damaged or destroyed as a result of a violation of this subpart, the cost of reproducing or replacing the property or computer services at the time of the violation.

When the value of the property or computer services or damage thereto cannot be satisfactorily ascertained, the value shall be deemed to be $250.

(i) Notwithstanding this section, the value of private personal data shall be deemed to be $500.

(64 Del. Laws, c. 438, § 1; 67 Del. Laws, c. 130, § 8; 72 Del. Laws, c. 135, §§ 1, 2.)

§ 940. Venue.

(a) In any prosecution for any violation of §§ 932-938 of this title, the offense shall be deemed to have been committed in the place at which the act occurred or in which the computer system or part thereof involved in the violation was located.

(b) In any prosecution for any violation of §§ 932-938 of this title based upon more than 1 act in violation thereof, the offense shall be deemed to have been committed in any of the places at which any of the acts occurred or in which a computer system or part thereof involved in a violation was located.

(c) If any act performed in furtherance of the offenses set out in §§ 932-938 of this title occurs in this State or if any computer system or part thereof accessed in violation of §§ 932-936 of this title is located in this State, the offense shall be deemed to have occurred in this State.

(64 Del. Laws, c. 438, § 1; 72 Del. Laws, c. 135, §§ 1, 2.)

§ 941. Remedies of aggrieved persons.

(a) Any aggrieved person who has reason to believe that any other person has been engaged, is engaged or is about to engage in an alleged violation of any provision of §§ 932-938 of this title may bring an action against such person and may apply to the Court of Chancery for: (i) An order temporarily or permanently restraining and enjoining the commencement or continuance of such act or acts; (ii) an order directing restitution; or (iii)an order directing the appointment of a receiver. Subject to making due provisions for the rights of innocent persons, a receiver shall have the power to sue for, collect, receive and take into possession any property which belongs to the person who is alleged to have violated any provision of this subpart and which may have been derived by, been used in or aided in any manner such alleged violation. Such property shall include goods and chattels, rights and credits, moneys and effects, books, records, documents, papers, choses in action, bills, notes and property of every description including all computer system equipment and data, and including property with which such property has been commingled if it cannot be identified in kind because of such commingling. The receiver shall also have the power to sell, convey and assign all of the foregoing and hold and dispose of the proceeds thereof under the direction of the Court. Any person who has suffered damages as a result of an alleged violation of any provision of §§ 932-938 of this title, and submits proof to the satisfaction of the Court that the person has in fact been damaged, may participate with general creditors in the distribution of the assets to the extent the person has sustained out-of-pocket losses. The Court shall have jurisdiction of all questions arising in such proceedings and may make such orders and judgments therein as may be required.

(b) The Court may award the relief applied for or such other relief as it may deem appropriate in equity.

(c) Independent of or in conjunction with an action under subsection (a) of this section, any person who suffers any injury to person, business or property may bring an action for damages against a person who is alleged to have violated any provision of §§ 932-938 of this title. The aggrieved person shall recover actual damages and damages for unjust enrichment not taken into account in computing damages for actual loss and treble damages where there has been a showing of wilful and malicious conduct.

(d) Proof of pecuniary loss is not required to establish actual damages in connection with an alleged violation of § 935 of this title arising from misuse of private personal data.

(e) In any civil action brought under this section, the Court shall award to any aggrieved person who prevails reasonable costs and reasonable attorney's fees.

(f) The filing of a criminal action against a person is not a prerequisite to the bringing of a civil action under this section against such person.

(g) No civil action under this section may be brought but within 3 years from the date the alleged violation of §§ 932-938 of this title is discovered or should have been discovered by the exercise of reasonable diligence.

(64 Del. Laws, c. 439, § 1; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 135, §§ 1, 2.)

Tuesday, January 08, 2002

How Much Faith Should you Place in that Poll?

It's not uncommon to come across a poll on the internet, or in a newspaper, and read that a certain percentage of the public believes X when you believe Y. You survey friends and acquaintances, and most people you know disagree with the results of the poll. Does that mean the poll is invalid?

You see a poll on the internet, and a lot of people have taken part in the poll. The results are totally ridiculous. How scientific is that poll anyway?

How much information does the person reporting about the poll tell you about it? How much faith should you place in the poll. Aren't there guidelines anywhere that should tell people about how a poll should work?

An excellent resource on polls exists on the pages of the National Council on Public Polls (NCPP), called 20 Questions A Journalist Should Ask About Poll Results. They discuss many of the things that a journalist should look for when reporting upon a poll. Even if you're not a journalist, this is an excellent set of questions and answers to look over, because it can give you a sense of the types of things a reporter should be telling you about a poll as they are reporting on it.

The problem with internet polls? Usually the people taking the polls are the ones electing to take polls. There's no selection process on the part of the pollsters to try to get opinions from a broad range of people with different opinions. If you have a small community, and the poll results show that most people voted (only once), then your poll results are going to be pretty good. But when you poll a thousand people to try to gauge the opinions of a few million, it is important to try to get opinions from a broad spectrum of participants.

The next time you see a poll that is used to back an opinion, such as a presidential approval rate on certain issues, take a look at the poll objectively, and see if it follows the guidelines from the NCPP.
- William Slawski

Sunday, January 06, 2002

Criminal Charges for the Delaware River Bay Authority?

Delaware's involvement with the multistate Delaware River Bay Authority (DRBA) creates many questions. One of the largest is how much supervisory power the State has over the entity. Is the River Bay Authority above the law? If two states work together to create an extra-state organization that oversees the use of a shared resource, can that created organization be said to be a government agency? Is it subject to the laws of both states? Some of the DRBA's actions give the appearance that they believe themselves to be above the law.

A recently discovered abuse by the DRBA is the disclosure that they have contributed money to a golf tournament that benefits the political action committee of the State Chamber of Commerce. A committee which supports state and local candidates. The money contributed is public money.

Not only does Delaware law forbid a governmental agency contributing to political groups, but it can impose a fine up to $2,300.00 and up to a year in prison.

The Delaware River Bay Authority says that the Delaware law does not apply to them. Since New Jersey doesn't have a similar law on their books, the Authority contends that they are not bound by the Delaware law.

Maybe it's time to sit down with New Jersey, and reconsider different aspects of the charter of the Delaware River Bay Authority.
- William Slawski

Lights, Cameras, Action; Take Two

Today's Wilmington News Journal voices their opinion on the subject of cameras in court rooms in Delaware. Their focus is upon recent meetings of the Delaware Bar, Bench Media Conference. The interplay between the Judiciary and the Delaware Bar is one of the strengths of the State. Some of our best laws have been the result of dialogue between the Bench and Bar, the most notable being the Delaware General Corporate Law.

The editorial revisits two of the most highly publicized trials that were televised in the last decade; the 1991 rape trial of William Kennedy Smith, and the 1994 murder trial of O.J. Simpson. The two cases exhibit the extremes that trials can go to, with the Smith case being orderly and the Simpson case turning into a circus. The difference between the two trials wasn't the presence of TV cameras, but rather the control that the Judges maintained in each case.

The New Journal tells us that:
Sometime in the next six months, the Bar, Bench, Media Conference will again petition the Supreme Court to conduct an experiment with cameras and audio equipment in a trial court. Superior Court President Judge Henry du Pont Ridgley, who presided over the Grossberg-Peterson trial, is enthusiastic about such an experiment. Judge Ridgely's willingness is welcome. His forward-looking attitude is exactly what's needed.

This is an experiment that seems to be well worth pursuing. Educating the public by giving them a chance to see the judicial branch in action is an idea that makes sense. If the Bench and Bar can work together to bring us success, without impacting negatively upon the rights of litigants in cases, we all benefit.
- William Slawski

Saturday, January 05, 2002

Lights, Cameras, Action

I've heard it a lot of times. People confessing that their knowledge of the law comes from television drama and comedy series; "Everything I know about the law, I've learned from Night Court and Law and Order." Many of our courtroom proceedings are public, and people can sit in the courtrooms, and watch almost from beginning to end. Still, most of us learn about the law from TV.

Lately, words about using cameras, and allowing media coverage of court cases have been making a buzz in judicial chambers, and in meetings between the bench and bar in Delaware. A weighing and balancing of the good and the bad aspects of live courtroom coverage, playing in front of the public, is healthy for our small State. It shows that decision-makers are considering the way government functions, and the way that the public views the justice system and the judicial branch of government.

But the thought of putting cameras in the courtroom, and making a case available to a wide audience makes many nervous. There are a good number of arguments for and against the use of cameras in the courthouse. There’s also a lengthy history of media coverage, and of potential abuse.

The first really big case in the United States involving the distraction that the media can cause was the 1935 trial of Bruno Hauptmann. The trial, involving the kidnapping and murder of the son of Charles Lindbergh, was one of the highest profile criminal cases ever reflected in a news photographer’s camera lens. The American Bar Association recommended the banning of cameras from courtrooms in the wake of that case, which had hundreds of reporters and photographers competing with each other to cover it.

Cameras did make a comeback, and the Supreme Court addressed their use in a case called Estes v. Texas, which saw a conviction overturned because the courtroom became the site of an uncontrolled media field day. The court did mention that their holding was limited to the case at hand, and not an outright ban of cameras in courtrooms.

Since then, a number of states have allowed the use of cameras for judicial proceedings. The Florida Bar Online has a very nice summary of the use of cameras in Florida, called, “Cameras in the Courtroom.” The article includes a history of the use of electronic media in State and Federal Courts, and the steps that Florida has taken to lessen the potential impact that recording might have on a proceeding.

The debate of the use of cameras in courtrooms isn’t limited to Delaware. Federal Courts are facing pressure to allow cases involving the terrorist attack of September 11th to be televised. On January 10, 2002, Representatives from Court TV will be in court to make an argument to allow them to televise the trial of Zacarias Moussaoui, who is the first person indicted in the attacks. The Senate has already acted to allow for extensive closed-circuit coverage of the case in cities across the United States, and in forums like Madison Square Garden. Such coverage is similar to the type of coverage used in the Oklahoma City Bombing trials of Timothy McVeigh and Terry Nichols. The prosecutors’ recommendations in that case give some insight into the government's views concerning the rights of the victims in being able to watch the proceedings.

Can cameras distract the participants in a case? Will they behave in manners which negatively impact the rights of the people being represented? Does the public have a right to know what goes on in a courtroom? Can televised court proceedings lose their impact if they take on the appearance of entertainment? Should our citizens’ knowledge of the justice system come from reruns of Night Court?
- William Slawski