Tuesday, April 30, 2002

kennedys show class
Boston Latin Academy was visited by a US Supreme Court Justice and a US Senator yesterday. Justice Anthony Kennedy and Senator Edward M. Kennedy spent an hour with a class of 23 students, asking and answering questions. The idea behind the visit was conceived of by Justice Kennedy as a response to the events of September 11th.
The Miller family wants nothing to do with Miller Beer. They just want to post pictures of their family on the web, and keep in contact with each other. Their web site, www.millertime.com politely informs you at the bottom of the page that if you were looking for the home page of Miller Beer, that you should follow their link to www.millerlite.com.
Repeated efforts by the Milwaukee brewer to force the family to give up millertime.com prompted Mark Miller and his family to file a complaint against Miller Brewing in U.S. district court.

The Millers want the court to block the National Arbitration Forum from forcing them to give up the domain name, which they've owned since 1995, according to register.com.
How would you rule under the Anti-cybersquatting Consumer Protection Act? What argument would you make for either side? [Update - reading the arbitrator's opinion, I was surprised to learn that the domain name had previously been placed for sale through a domain name auction house. Which may make a difference and explain the arbitrator's decision. (5/4/2002)]
warbirds, whales, and military pollution
Should the environmental laws apply to the military? Is the endangered species act making it difficult to defend our country? Should pollution be ignored when it comes from military training?

Bombing exercises were recently called to a halt by a federal court on a US territory in the South Pacific when it was discovered that migratory birds were being killed. The military is concerned that the ruling may impact other military actions, and the Pentagon is asking for exemptions. They've received some responses from this request:
The administration's call for broad environmental exemptions for the Pentagon has been strongly opposed by environmental groups, governors and state attorneys general, and public interest groups. The military is among the nation's largest polluters, and it manages 25 million acres of land that provide habitat for 300 species listed as threatened or endangered.
A sonar system to detect new "quiet" submarines is also coming under attack by environmentalists. The sonar can confuse, and kill whales and other "noise sensitive marine mammals."

I understand the need for military preparedness, and laws applied without the exercise of reason and common sense are dangerous in themselves. But when you continue to carve out exceptions to laws and rights regarding free speech, privacy, the environment, and so on, something can be lost forever.

Monday, April 29, 2002

action figures and dolls
A thread in metafilter today on the death of the creator of Barbie brought to mind a conversation with a group of friends this weekend over Korean barbeque. The topic had turned to advertising on television.

In one commercial that came up, a GI Joe action figure pulls up in a Red Nissan sportscar to pick up Barbie, leaving behind a dejected Ken doll. I remember seeing the commercial, but never heard that legal action had come out of it. The GI Joe manufacture sued Nissan Motor Company over it.

It's not the only litigation that has happened when it comes to dolls and action figures. There is a difference between the two. I know there is. But the courts don't necessarily see it that way. The people at the Villanova Sports & Entertainment Law Journal have said so. The Legal Battles of G.I. Joe: The Jurisprudence of Distinctive Fingernails, Action Figures, Ninjas, and Distinquished Marines is a nice survey of GI Joe in court. The law regarding intellectual property just wouldn't be the same without the involvement of this action figure.
clean air
I have just returned from a wedding in western North Carolina. The wedding was wonderful and the chance to visit relatives was priceless.

Also priceless was the clean healthy smell of the air; the sounds of the birds chirping; and the lush color of green. The contrast from my experiences in Delaware was staggering.

Sunday, April 28, 2002

10 environmental problems in Delaware
An excellent article in May's Delaware Today magazine called Dirty Little Secrets enumerates environmental concerns that should be drawing the attention of people in Delaware. They came up with this list after speaking with many top state officials and experts, from sources such as the US Environmental Protection Agency, the Division of Natural Resources and Environmental Control (DNREC), the Delaware Sierra Club, the Delaware Nature Society, Green Delaware, the US Army Corps of Engineers, and many others.

Here is their list, which they indicate is not necessarily in order of importance. The article is not online, but it is worth reading because it not only spells out the issues in detail, but also gives an idea of what is being done (or isn't being done) to resolve these problems.
  1. Most of New Castle County's 500,000 residents live and work within the 50 mile nuclear fallout ingestion zone of seven nuclear reactors, several of which are nearly 30 years old.

  2. Twenty of the county's most hazardous waste sites are in Delaware

  3. Delaware's inland bays are choking on excess nutrients from septic tanks, waste-water treatment plants and chicken runoff

  4. The Indian River Power Plant has operated with an expired permit to expel wastewater for the past ten years

  5. In spite of $4.5 million in fines and actions taken by OSHA, EPA, and Gov. Minner, Motiva continues to rack up violations for extreme polllution

  6. Forty percent of the 1,563 native plants in Delaware are threatened or endangered

  7. It would cost $400 million to eliminate the 38 sewage overflow pipes that habitually dump dangerous wastes during wet weather into local waterways where people swim and fish

  8. Recycling is not a priority because it is widely perceived as unprofitable

  9. Elevated lead levels have shown up in the soil after paint chips from the St. Georges Bridge flaked onto nearby homes

  10. DNREC suspects arsenic and heavy metals may have contaminated the soil in more that 50 former tannery sites in Wilmington, including several playgrounds.

From our log files, I know that the Delaware Law Office receives visitors from the Delaware State government. If any would like to comment on one or more of these subjects, and let us know what is going on to address them, please feel free to do so. We will probably cover most of these issues in more detail on these pages in the future, and any conversation that can be generated will probably be helpful. Delaware Today should be lauded for bringing this topic out to the public in their latest issue.
post immigration and naturalization service
What shape will the agency once known as the INS take? It appears that it might become two agencies, from the description on Delaware Congressman Mike Castle's website. Castle was one of the co-sponsors of the bill that calls for restructuring of the Immigration and Naturalization Service. The bill passed in the House, and is now being reviewed in the Senate.

One agency would be responsible for patrolling borders. Another would be responsible for handling immigration services. I guess the hope is that by narrowing the mandate of each agency, they would be more effective at meeting the standards imposed upon them. These statistics aren't encouraging:
The INS has long backlogs of visa and other petitions -- 4.9 million petitions were pending before the INS at the end of September 2001 –– a seven-fold increase since 1993. 250,000 illegal aliens have been ordered deported yet are now missing and cannot be found by the INS.
The reorganization of the agencies better get finished soon. It appears that there's a lot of work that needs to be done.
preserving diversity
Once upon a time, American farmers had a choice of over seven-thousand different varieties of apples to grow. They can now pick from only about a thousand. In Fruits We'll Never Taste, Professor Beth Ann Fennelly writes that: "...over 90 percent of the crops that were grown in 1900 are gone." What harm might a narrow gene pool cause?

Fennelly is a teacher of English, so her chosen topic may seem to go a little astray of her education. But that's only until you realize that she isn't just writing about fruits and vegetables. She also talks about languages that are being lost. There are concepts in other languages that really don't have a one-word-to-one-word translation in English.
In my girlhood I thought that each word in English had its exact equivalent in every other language, and language study was the memorization of these codes. I later learned that each language is a unique repository of the accumulated thoughts and experiences of a community. What do we learn about a culture by examining its language? The Zuni speak reverently of pena tashana, a "long talk prayer" so potent it can only be recited once every four years. The Delaware Indians have a term of affection, wulamalessohalian, or "thou who makest me happy." The Papago of the Sonoran Desert say Sbanow as the superlative of "one whose breath stinks like a coyote."

During this century, 87 languages spoken in the Amazon basin of South America have become extinct because their native speakers were dispersed from their lands or killed. When these languages died, they took with them not only the specialized knowledge that the tribes had gained from thousands of years of natural healing and conservation, but also ways of living from which we might have learned something. In the absence of these examples, as John Adams wrote, "we are left to grope in the dark and puzzle ourselves to explain a thousand things which would have appeared very simple if we had . . . the pure light of antiquity."
And it's not just the loss of languages that bother her. It's the loss of the richness of complexity in the world. Different ways of thinking, of seeing, of caring, and of living. She doesn't offer any suggestions on how these things might be protected. But, raising an awareness of our loss is a start.
better mental health coverage?
A 941 page long manual may be the key to better mental health coverage when it comes to large employers and health benefits. The American Psychiatric Association's Diagnostic and Statistical Manual (DSM) is at the heart of a debate that might see mental illnesses being covered by health plans on an equal level of parity with physical ailments. It appears that President Bush is backing parity, and will make an announcement to that effect on Monday. But, a question remains - should equal health benefits apply to all of the "diseases, disorders and distresses" within the book, or only the most serious of them?
It's 90 years this month that the Titanic sank. It took almost seven decades to locate the ship, and little in the way of salvage has been conducted. That will possibly change, and maybe soon. The founder of the ship would like to keep it where it is. The ship is in international waters, and a law making its way to treaty status in the UN doesn't allow something to be salvaged that's more than 100 years old. Chances are good that the treaty will go into effect this year. That may speed up the salvage process for the ship, regardless of the fact that the discoverer of the site would like to see it untouched.

Saturday, April 27, 2002

in loco parentis
New York Times Magazine reports on a wrongful death lawsuit (regist. req'd) brought by the parents of Elizabeth Shin against MIT.
Two years after Elizabeth's death on April 14, 2000, the Shins have filed a $27 million wrongful death suit against M.I.T. in a Massachusetts superior court. The Shins claim that M.I.T., overly concerned with protecting Elizabeth's confidentiality, failed to inform them of their daughter's precipitous deterioration in the month before her death. This, they say, robbed them of a chance to oversee her care or perhaps even to save her life. M.I.T., the Shins claim, made matters worse by failing to act in their place, ''in loco parentis to the deceased.'' The school did not provide adequate, coordinated mental health care for their daughter, they claim, nor a proper emergency response to the fire.
A bright and gifted student, Elizabeth Shin's tale is one that has schools and parents across the country wondering about the role that a school may need to take.

Friday, April 26, 2002

The ultimate yardstick of how the Hewlett v. Hewlett Packard case will be decided won't come down to some arcane interpretation of a law. That's not how a court of equity works. And Delaware's Chancery Court is a court of equity. The measurements made by Chancellor Chandler are ones marked by fairness. What are the facts of the case? What potential harm exists to all of the people involved in making a decision one way or another? Were the shareholders mislead? Was the investment bank coerced into voting a particular way? Were economic forecasts misleading? Were they so misleading, intentionally or unintentionally, that a vote was made without a reasonable understanding of the possible risks involved in a merger? Did the people making those forecasts act in good faith? Can a remedy be drafted that will overcome potential problems with the vote, such as another vote? Would another vote likely produce the same results? Would the cost in time and money to hold another vote be damaging to parties involved, including all of the shareholders?

You can pull out legal doctrines and precedents from previous Delaware and Chancery Court cases all you want, and polish them up nice and shiny and point to them and make whatever prognostications that you may. But when it comes down to the top judge in the Chancery Court making a decision in this case, what matters is fairness. The legal doctrines and the precedents are ways of getting there, but the result is something that will be based upon simpler rules of equity. These words from former Chancellor William T. Quillen apply here:
Unlike its extinct English ancestor, the High Court of Chancery of Great Britain, Delaware's Court of Chancery has never become so bound by procedural technicalities and restrictive legal doctrines that it has failed the fundamental purpose of an equity court--to provide relief suited to the circumstances when no adequate remedy is available at law.

Thursday, April 25, 2002

I've been fascinated by juries ever since seeing the movie 12 Angry Men when I was young. The film is about a murder, and a murder trial, but it doesn't show you those things. It waits until after the closing statements, and a decision has to be made regarding the defendant's innocence or guilt. It asks "what goes on" behind the closed doors during a jury's deliberations?

The movie has made me think a lot about the role of jurors in our justice system, and what it means to our government. The conclusion that I've come to is that being a juror is the closest a person can get to exercising their rights to live in a democracy.

How did I arrive at that position? We often view government as something that provides services to us, its citizens. We may be missing something when we think that way. We are not the government's customers; we are the government. We are the government when we vote, when we obey the laws, when we pay our taxes, when we allow others to represent us, when we exercise our freedom of speech, and when we run for office. By acknowledging government's existence, and allowing it to continue, we are the government. Another way of saying that is that government "governs at the consent of the people."

Our country is a democratic republic. There is room for contradiction by joining those two words together. A pure democracy calls for social justice and equality. A republic requires that laws are passed to keep the country together, and civic duty and sovereignty are called for. Sometimes the two concepts clash.

When you are a juror, you examine specific laws being applied to a particular person, or a business. You look at the facts of that case, and make a decision that can affect the life, liberty, or property of one or more people. By exercising your right to be a juror, you allow someone else the right to be judged by other people, not by some nameless, faceless government. By being a juror, you join in with others and decide whether a law is good or bad and whether that law is being applied correctly. Sometimes, you are even deciding whether the prosecutor is acting on behalf of the state, or on behalf of someone's personal agenda.

Sadly, the author of the movie 12 Angry Men died last Friday. I'm not bothered to say that a movie had a profound impact on the way that I think about government, and I'd like to thank Reginald Rose for the insight that he provided in this film.

An article by Delaware Attorney Kester Crosse in today's Wilmington News Journal is on the topic of juries in civil cases. A law is being considered by the State Legislature that would allow a decision by a super majority of jurors to stand as valid by the jury rather than an unanimous decision, as is required now. Mr. Crosse presents a well reasoned argument in favor of the legislation. Do I agree with him? I'm not certain. While the movie 12 Angry Men involved a criminal case rather than a civil one, I still can't help but think that if not for one juror playing devil's advocate, an innocent man would have been found guilty of a crime that he didn't commit.
court ordered movie viewing
It seems that court ordered movie viewing is not as novel as it would seem. Nor is the western style of justice limited to places left of the Mississippi. A recently retired Delaware judge once sentenced a prisoner to watch "The Life and Times of Judge Roy Bean", as he told the prisoner "I am the law west of the Christina" [or is it Christiana?].

Wednesday, April 24, 2002

cool hand luke
A couple of inmates in New Mexico tried to walk away from the road crew that they were working on. One of them had one day left on his sentence, and the other had about 71 days. They walked out into the desert, and found themselves in the midst of a swat team exercise. Now the judge has ordered them to watch the movie Cool Hand Luke. They face possible five year sentences for felony escape.
more cassidy on delaware
It might seem like I was criticizing Mike Cassidy of the Mercury News from San Jose, yesterday. I have to confess that I found his article to be one of the more readable ones in yesterday's long list of Hewlett v Hewlett Packard stories churned out by the media. Today's column, Riveting Drama had its share of tension, was even better.
delaware.law pseudo-domain
Now many web users can also access this legal info site at www.delaware.law.

Tuesday, April 23, 2002

picking on delaware
One of the stories this morning about the Hewlett v Hewlett Packard case in Chancery Court was from Mercury News reporter Mike Cassidy. Mike's mission, it seems, was to educate the Bay area readers about Delaware. I've been to the Bay area, and it's a lovely place, and I guess I can understand a little why Mike would want to poke fun at the First State. His article was funny, but a little misleading. I'd like to clear up some of the points he makes:

Mike: First, Delaware is actually a state. You probably thought it was a suburb of Philadelphia, which isn't entirely incorrect.

Me: Delaware was actually part of the territory governed by William Penn, way back when. But, the legislature kept on passing laws that didn't include the "lower three counties," as we were referred to in those days. Delawareans asked for independence, and we got it too. But, we missed out on one of the most important things Philadelphia did for our nation. It's all in the cheese steaks. A Philadelphia cheese steak isn't authentic unless it is made with cheese whiz. I don't think that you can buy a cheese steak in Delaware with cheese whiz on it.

Mike: Second, forget what you learned in school about Rhode Island. No way that Delaware's larger. Take out a map and look. If you can even find Delaware. (It's over there, near Washington, D.C.) No way there's a smaller slice of America. I could walk across this state in the time it takes you to drive to work.

Me: You're sounding a little bit like a bully, Mike. The "my state is bigger than yours" line really isn't called for here. Besides, it's a lovely walk.

Mike: Fact: They call it Chancery Court because it sounds really cool.

Me: They call it Chancery Court because that's its name, and has been for a couple of hundred years. That the Court is really cool is just Delaware's good fortune.

Mike: Fact: More chickens than people live in Delaware. This I know because every article about Delaware says so.

Me: Rita Farrell, of the San Francisco Chronicle, managed to write an article this morning that didn't mention the chickens. But, then again, she's been writing about Delaware for a few years, and maybe she got tired of including them after a while. I saw her earlier today and didn't get a chance to ask. If I run into her tomorrow, I'll check and find out.

Mike: Fact: Nobody actually lives in Delaware. People just come here to sue each other.

Me: That's just blatantly untrue. There are plenty of us who live here in Delaware. Not only that, but we all know each other. A couple of times a year, we have a block party, and everyone is invited.

Mike: Fact: Delaware's state bird is the blue hen chicken, which is not the same as saying the few who live here are lacking in courage.

Me: Promise that you won't tell PETA, Mike, but the Blue Hen Chicken was a fighting game cock. It was also the nickname of a company from Delaware that fought in the revolutionary war and were renown for their courage (and their gambling). And, you might not want to repeat that implication about lacking courage on the streets of Wilmington, just in case Michael Spinks or Dave Tiberi overhears you. Most of us would understand that you just don't know what you're talking about. Those guys might take exception to your trolling.

Mike: Fact: George Washington did indeed cross the Delaware River, but he crossed from Pennsylvania to New Jersey, thereby avoiding Delaware altogether. Of course, we can't all be so lucky.

Me: I guess as Delawareans, we're a little more familiar with the adventures of George Washington than you might be. The Battle of the Brandywine did take place a long time ago, so you may not be aware of the hospitality that George Washington received on his visit to Wilmington, Delaware. He also had some of those Blue Hen Chickens fighting along side him.

Mike, if you've come here from the Bay area, I hope that you are enjoying your visit. If you want, please let me know and I'll give you the nickle tour of Delaware. Probably only take a couple of hours.
camping out in delaware

camped out in front of the Daniel Herrmann Courthouse in Wilmington, De.

Some were tired, some were happy, some were drinking as much coffee as possible to keep awake. I arrived this morning at the Daniel Herrmann Courthouse in Wilmington Delaware to find a very long line of people. Many of them were being paid to hold places in line for attorneys, investors, reporters, and other interested parties. Rumor has it that the line started forming around 3:00am. Another rumor is that a few people who just happened to be on the streets during the early hours of the morning were offered $65 an hour to hold a place in line for some attendees.

The case is Hewlett vs Hewlett Packard, and the proceeding is being heard by Delaware's Chancery Court. It is receiving a great deal of press coverage:

Irritated Fiorina testifies in trial (cnet news.com)
Company memos called deceptive (CBS MarketWatch)
Hewlett Attorneys claim Deal Deception (Wilmington News Journal)
Another Round in Carly vs. Walter (Smart Money)

There will likely be more. I haven't seen so many people running out of a courthouse to get onto a cellular phone in a long time. The trial is scheduled to last three days, so I expect that will be a common sight over the next couple of days. I also expect that there will be a somewhat larger collection of casual observers standing around the courthouse early in the morning tomorrow hoping that someone offers them money to hold a place in line. Hmmm, maybe if I go to sleep now...
returns day, taken under advisement
Another Delaware legal tradition, in the Courts, is the process by which a judge does not announce the Court's decision on a case from the bench. It is called, "taking the case under advisement".

In a fair percentage of cases, Delaware Judges will thank the litigants for their presentation and adjourn to chambers (duck out the back door). The decision is later mailed to the parties and their attorneys. This process serves two very good purposes.

First, it reduces fist fights in the Courthouse. The litigants leave the building not yet knowing who has won and who has lost. That sense of bewilderment and confusion distracts them long enough from their bloodlust for the opponent, that they can actually get home before they start to stew again.

Secondly, it gives the judge an opportunity to sit back and contemplate the evidence that was presented at trial, and to research points of law that may have arisen. As we learn from our personal lives, many times things seem much more clear once we have had a chance to sleep on it.

Return Day is an excellent tradition. As was described below, it allows society to heal and re-group. I think that it is such an excellent tradition that we should use it in all three of Delaware's counties. I think this would help to heal the resentment that many in Kent County and New Castle County feel towards Sussex County because of the fact that Sussex currently has one more holiday than the rest of the State.

You be the judge on this one. Take this under advisement...sleep on it.

Monday, April 22, 2002

delaware reacts to HP case
The Mercury News has an article on the Hewlett vs. Hewlett-Packard trial to be held in Delaware's Chancery Court on Tuesday called HP case ready for justice, Delaware-style. It does a nice job of summing up Delawareans reactions to the dispute. The article also mentions the Sussex County tradition of Return Day, but doesn't go into much detail. It's a tradition that began in 1792, and involved the winners and losers of Delaware elections gathering together two days after an election to find out the results, and to bury the hatchet, and begin the healing process:
In modern times, when election results are often known before the polls close, Return Day serves as a reminder to all Sussex Countians of their past. An ox roast with free sandwiches to the public has replaced the possum and rabbit but craftsmen and vendors still hawk their wares. A large parade still highlights the celebration, but now the victorious candidates and their former opponents ride together in open horse drawn carriages and convertibles in the spirit of cooperation for the good of the citizens.
It's a tradition that litigants in corporate disputes could learn from.
776 death penalty cases
The Supreme Court will begin hearing a case this morning on the sentencing aspect of a death penalty case which may have an impact on 776 death penalty cases in nine states. In those states, the jury hears the case, and the judge makes the final sentencing decision, which may be based upon information that didn't come out in the trial. The case before the Court is from Arizona, but if the Court decides to overturn the sentence in that case, it may have an impact on other states that also allow judges to hear additional evidence at the time of sentencing.
Does the sentencing hearing amount to a second trial conducted in violation of the defendant's Sixth Amendment right to be tried by a jury of his peers? That is the question the US Supreme Court takes up this morning in a potential landmark case that could dramatically shift the way criminal sentences are meted out in courts nationwide.
If the Court overturns the Arizona sentence, it could have a much greater impact than just upon death sentence cases. Other cases at risk are ones where a judge sentenced someone using facts which were not presented to the jury, and those facts caused the sentence to be enhanced in severity beyond what was called for by statute. Delaware sentences could be affected by the decision in this case.

Sunday, April 21, 2002

dogs and postmen
A link on metafilter to a page called When dogs attack brought me to a couple of other pages that looked worth a visit. One of them was Dog Bite Law, which bills itself as:
The most extensive research site for dog bite victims, dog owners, parents, journalists and others needing to learn about the legal rights of victims, how to protect children, and other aspects of the dog bite epidemic.
The other page is specifically for mail carriers. It's PostalWorkersOnline.com.

Saturday, April 20, 2002

google, altavista, remove railway saboteur links
In response to an email from Deutsche Bahn AG (the German National Railway), Google and Altavista have removed links to the web site of a group that published documents on how to sabotage the railway system in Germany. The search engines agreed to remove the links because the web site the documents were being hosted upon is no longer accessible.
public access to court records
Should court records be something that everyone can access online? If you've been involved in criminal cases, or civil cases, how would you feel if your neighbors could access that information with just a few clicks of a mouse? What about potential employers viewing that information? Or possible landlords? Or stalkers? Or people interested in stealing your identity? Keep in mind that this is information that is often already accessible to people with a visit to a local courthouse.

If you were a potential employer, or landlord, or creditor, it might be helpful if this type of information was readily at your fingertips. It's public information, and it should be something that you can find out, without having to deal with too much red tape and a trip to a courthouse during an inconvenient time. The Oklahoma State Courts Network (OSCN) already has a database of information online that many other states are thinking about imitating and implementing, to one degree or another.

On Friday, a Computers Freedom and Privacy Conference focused on a debate over how much public information should be available to the public online, and how it should be presented. Privacy advocates took on free speech advocates:
Privacy experts said they fear the exposure will lead to increased identity theft, stalking or worse. Free-speech advocates, on the other hand, maintain that open records are an integral part of maintaining a free society.
Both sides raise very good points.

One aspect of this debate, which makes it very timely, is that the National Center for State Courts (NCSC) has been accepting comments on how much access to information should be provided to people. While the NCSC doesn't directly set policy for courts, they are respected nationwide by court policy makers, and administrators. Their pages on Public Access to Court Records contains more information on this subject. They have a draft Model Policy on Public Access to Court Records (pdf) online which will probably be rewritten after comments are reviewed, and a public hearing is held.

It's uncertain whether the NCSC is accepting more comments at this time. The cnet article linked above states that they will accept comments for another two weeks. The NCSC page indicates that the subject will be open for comments until April 15th, which has already passed. If you feel that your views should be included, it wouldn't hurt to send an email asking about the time for comments. The final model policy will likely be read by many people in positions to make decisions about the information available to the public online.
free, unencrypted ebooks increase sales?
Eric Flint has been making a point of releasing editions of his books in ebook format for free at the same time that the paperback edition has been released. He has received hundreds of responses from people telling him that they purchased his books as a result of the chance he gave them to read unencrypted copies of the books online through the Baen Free Library. If you like science fiction, give them a visit. There are twenty authors involved in the library at this time, including Larry Niven, Jerry Pournelle, Mercedes Lackey, David Drake, and Rick Cook. If you read something there, and go out and purchase one of the authors' books, send Eric Flint an email, and let him know.

Friday, April 19, 2002

that pesky first amendment
Deutsche Bahn announced earlier this week that they would be filing a lawsuit against Google on Wednesday because the search engine provides: "links to a Web site that offers instructions on how to sabotage railway systems." Similar suits might also be filed against Yahoo, and Altavista.
Deutsche Bahn recently sent letters to all three U.S. search engine operators asking them to remove the hyperlinks to the online copies of two articles from the German-language, left-wing extremist publication Radikal, which has been outlawed in Germany. The articles detail how to cut power on parts of the railway system.
The suits would proceed against the companies' German based subsidiaries rather than in the US, because of that gosh-darned first amendment:
Deutsche Bahn will file suit in Germany, where all three search engine companies have subsidiaries, because it feels it wouldn't stand a chance in a U.S. court because of the freedom of speech allowed by the First Amendment of the U.S. Constitution.

"There is no chance to sue them in the U.S. You are really allowed to put anything on the Internet there," Schreyer said.
Deutsche Bahn successfully sued Radikal's ISP in Amsterdam District Court to block access to those documents on a server there. The links on the search engines still exist, however, and that is why they announced suits against Google, Yahoo, and Altavista.

Are the search engines pointing to someone yelling "fire" in a crowded theatre? Maybe Deusche Bahn should be spending their money fixing the weaknesses in their rail system rather than pursuing these lawsuits. Regardless of whether they cover the problem up, it will still exist.
chocolate and slavery
After reading about how chocolate is harvested in the Ivory Coast of Africa, I'm not so certain that I'll be snacking on candy bars for a while. But it looks like the chocolate industry in the U.S. is trying to take some steps to make changes. They can't happen fast enough.
is it a duck?
A California jury awarded a police officer $549,762 in a racial discrimination suit. They found that he had been passed over for a promotion because of his race, and that a lesser qualified person of the "right race" was given the job instead. Discrimination...pure and simple. Racial bias. Why do some people insist on calling it "reverse discrimination". There is nothing reverse about it. It is discrimination.
music copyright infringement
The Columbia University Law Library has put together an outstanding web site on music copyright infringement decisions in US courts. They tell us that most of these types of cases settle out of court, and that there are fewer than 100 published judicial opinions on the subject since the mid 1900s. The section on individual cases includes some audio clips of songs in dispute, allowing you to make a decision based upon your own listening. The discussion section is tailored to give law students and lawyers a good understanding of some of the many issues involved in this type of problem, but anyone interested in writing music may also find this site worth a visit. (via metafilter)
whitehouse e-identification initiative
There's some speculation that the federal government might turn to Microsoft, and their passport software to provide authentification of a user's identity when people visit a federal government website to perform such tasks as paying taxes.
A story in the Christian Science Monitor on recycling in Rhode Island might hold some ideas, and some warnings for Delaware. One town charges $1.20 for every bag of garbage, but doesn't charge for recycled materials. They've also simplified the recycling bins so that there are two different types instead of dozens. Recycling rates in that town typically reach over 40%.
city sewers
We've written here about Wilmington's sewer system, and how when it rains more than one-tenth of an inch, raw sewage mixes with rainwater, and flows into the Christina, making the City's Riverfront a less than attractive place. So, how are other cities doing, as they struggle with outdated sewers?

Wilmington will spend almost $120 million over the next twenty years. There are at least 772 cities and towns that need to address similar problems, and the pricetag for all of them combined might reach $45 billion. Indianapolis will spend over $1 billion during that same time period. Pittsburgh has a 12 year, $3 billion cleanup plan. Atlanta faces $2 billion worth of drilling, and installing new sewers:
During the next 10 years, the average wastewater bill for Atlanta residents is expected to rise from the current $31 to about $65 a month. In return, taxpayers will get something that may have no price, said David Peters, Atlanta's environmental director.

"There are a lot of spring-fed natural creeks that flow through Atlanta and once this work progresses people are going to see these streams turn crystal clear," Peters said. "People want their streams back and they're going to get them."
The EPA lists 900 cities in their pages on Combined Sewer Overflows, including a city-by-city list in pdf format. The Delaware town of Seaford also faces a similar problem.

Thursday, April 18, 2002

official state marine animal
Reading the title of a bill that came out of committee from the Delaware House yesterday, I had to ask myself if this was something that our representatives should be spending their time doing. Designating an official state marine animal is all very nice and good, but it doesn't do anything to address some of the budget problems that the state faces. It doesn't seem to address any social concerns, or conflict amongst citizens of the state. What does it do?

For one thing, it really doesn't add much of an expense to the state budget to make this designation. And, upon actually reading the bill itself, I realize that it can help to raise awareness of the importance of the horseshoe crab to Delawareans, and to our ecosystem, and the dangers that they face:


WHEREAS, horseshoe crabs are 500 million year old creatures; and
WHEREAS, horseshoe crabs contain a compound, limulus amebocyte lysate (LAL) that is used to detect bacterial poisons in certain medications, vaccines and medical devices; and
WHEREAS, chitin from the shell of the horseshoe crab is used to make bandages; and
WHEREAS, the horseshoe crab is used in vision studies because their complex eye structure is similar to the human eye; and
WHEREAS, the horseshoe crab is the principal food source for over a million shore birds; and
WHEREAS, these wonderful marine animals are becoming extremely scarce in Delaware, experiencing a drop in population from 1,200,000 in 1990 to 200,000 in 1995; and
WHEREAS, the Delaware Bay remains the home to more horseshoe crabs than any other place in the world; and
WHEREAS, Delaware is proud to be the home of such important marine animals.

Section 1. Amend Chapter 3, Title 29 of the Delaware Code by adding a new §318 thereto to read as follows:

"§318. State marine animal.

The official State marine animal is the horseshoe crab."

Section 2. This Act shall take effect immediately upon enactment into law.


Recognizing the great importance and value of the horseshoe crab, this Act designates the horseshoe crab as Delaware's official marine animal.
Well, horseshoe crabs. You're being officially recognized. I'm not certain that you all care very much. But, maybe the sea grant annex of the University of Delaware in Lewes will get looking into why the population of horseshoe crabs is dwindling as much as it is. I suspect that agricultural runoff, and ocean dumping plays a role. Will our legislators followup with bills that aid and protect our official state marine animal?

Wednesday, April 17, 2002

twist tie security fence
We are proud of Delaware's new multi-million dollar facility for the criminally insane, the Jane E. Mitchell Building, built in 1999. It is much more clean, pleasant, and secure than its predecessor the Comegys Building, which is now a gravel parking lot. I visit the Mitchell Building about twice a month in my duties as a legal representative of some of the patients at the Delaware Psychiatric Center.

Not long after construction was completed, and on one of my regular visits, I noticed the method of construction of the large green security fence that encloses three sides of the building. Having paid for a 6' high chain link fence for my back yard, I had a vague appreciation for what it takes to put up a 12' security fence (especially the cost). What I noticed, to my disbelief, was that the fence is anchored to the poles with twist ties. The ties are relatively light weight wires, about the same size as a strand of household electrical wire.

And these twist ties are in places (like the juncture of the fence post and the building) where a person could easily reach around the pole and undo the twist tie, and walk away. I wouldn't want this laxity of security at an elementary school, much less at our most secure facility for the criminally insane.

I wrote to the hospital administration, way back then, but I have had no response. Wouldn't $50 worth of hardware and a day's work for a maintenance man at least secure the fence enough to require a tool of some sort? Doesn't the hospital owe that to our community?
justice by proxy?
A jury member unsatisfied with the outcome of a lawsuit has set up his web page to help collect funds for the unsuccessful plaintiff in the case. Will "do you have a blog" become a question commonly heard during jury selection?

Monday, April 15, 2002

bezos gets it
It's good to see someone take a stand like the founder and CEO of Amazon.com has, when it comes to distributors and creators claiming that they are being harmed.

Amazon.com has come under fire from the Executive Director of the Authors Guild, who makes the claim that Amazon's sale of used books on their website is hindering the sale of new books, and causing damages to authors:
As you may have read in the newspapers over the past few days, we've been criticized by the leadership of a small, but vocal organization because we sell used books on our website. This group (which, by the way, is the same organization that from time to time has advocated charging public libraries royalties on books they loan out) claims that we're damaging the book industry and authors by offering used books to our customers. They would have us stop offering used books, or at least put them in a separate section of our store instead of on our high traffic detail pages.

First, their assertion that used books hurt the book industry and authors is not correct. We've found that our used books business does not take business away from the sale of new books. In fact, the opposite has happened. Offering customers a lower-priced option causes them to visit our site more frequently, which in turn leads to higher sales of new books while encouraging customers to try authors and genres they may not have otherwise tried. In addition, when a customer sells used books, it gives them a budget to buy more new books.
Bezos goes on to make some other very good points about the sale of used books, and ends by asking Amazon customers to help out by sending an email to the leadership of the author's guild.

Used books have never had the distribution chain available to them that Amazon provides. I understand that a number of used books have been placed for sale through Amazon only days after a book has made its appearance on the site as a new offering. The fear that the Author's Guild is experiencing is understandable. But, I think that Jeff Bezos makes some great points. One of the things that the Author's Guild has to keep in mind is that Amazon is making more money from the sale of new books than from used books. They are the Authors Guild's partner in selling to the public.

I also like the Amazon founder's tone in this message. He asks:
Please write an email to the Executive Director of the Authors Guild (the leadership of which orchestrated this campaign) explaining how the sale of used books actually helps the entire book industry. Of course, a polite and civil tone is appropriate-- these are good people who haven't had input on all sides of this issue. You may agree with the points above, or you may have your own reasons, but please share them with the Authors Guild. If you make a living from selling used books, please mention that too.
If more companies behaved this way, there might be a lot less lawsuits.
justice byron r. white
There may be a number of people who only knew him as a star of college and professional football. I was never aware of the athletic accomplishments of the former Supreme Court Justice Byron Raymond White. My only brush with Justice White was the clear and extremely well reasoned judicial opinions he penned in his 31 years on the bench. Byron White died on Monday morning, of complications from pneumonia.

Saturday, April 13, 2002

enjoy digital music legally
Dave Thomas, Tom Carvel, Lee Iacocca; these are CEOs who made commercials for the companies they headed. Add Ted Waitt of Gateway to that list. The pony-tailed CEO of Gateway, with a sidekick cow, has been rapping his way into the homes of millions of Americans with a couple of ads that ask Americans to protect their rights when it comes to digital music.

The Recording Industry Association of America (RIAA) has taken notice of the commercials, and has called them, and the gateway web site, a "gateway of misinformation" intended to entice viewers to buy Gateway computers with cd burners on them. Gateway has a number of songs on their site that you can download, as well as information about digital rights, and the dangers that proposed legislation brings to those rights.

The official response from RIAA President and CEO Hilary Rosen:
"The Gateway commercial is fun, but their website is nothing but a gateway to misinformation. No one has proposed anything that would 'prevent all digital copying.' If Gateway truly believed that illegal copying hurts all artists and labels who make the music we enjoy, they wouldn't be relying on these misleading scare tactics -- they'd be working with us to find a solution to the piracy problem. If only they would devote a little bit of the millions of dollars they're spending on this ad campaign to help stop illegal downloading...but that wouldn't help them sell more CD burners, would it?"
A strong statement. It ignores a couple of facts.

One is that advertisers try to sell their products. Gateway isn't hiding the fact that they are advertising their computers. The second is that they are pushing for legal downloading and recording of music. If they are engaged in a bit of citizen advocacy against a harsh bill being proposed that will make even legal copying of music illegal, that is within their rights. I didn't see "misinformation" on the Gateway pages. "Enjoy digital music legally," are the words that come at the ends of the Gateway ads.

And RIAA, it's not just the CEO of Gateway criticising this bill. It's your customers, also. If you don't stop treating all of them like thieves in the night, you're going to lose them.
philadelphia gets tough on drivers
Just how many cars are being driven in Philadelphia illegally? Six years ago, the estimate was at about 500,000. The city decided to take some action back then, and passed a law allowing police officers to seize any car driven by someone without a driver's license, insurance or registration.

The vehicle seizure law is known as "live stop," and it hasn't started yet, except for a few pilot projects. While it's been on the books, it's barely been enforced. Plans are in the works to change that. As of July 1st, the city will begin enforcing the law citywide.
"We estimate that at the beginning, we are going to take 1,000 cars a day," said Traffic Court Administrative Judge Fortunato N. Perri Sr. "I can't tell you how much I'm looking forward to this ... It kills me that we had this law on the books for six years and that we didn't enforce it."
The additional work and resources that implementing this law will take is mind boggling. Longer police stops for lack of identification or registration or insurance. A lot of towing. Lots needed to store the vehicles. Appeals of seizures, and due process hearings. Sales of unclaimed vehicles.

The results of the pilot programs look promising, and the city has spent money on new tow trucks, and lots for cars. If it makes driving in Philadelphia safer, I'm all for it. I might drive into the city more often. But I'll definitely remember to bring my license, insurance and registration with me when I do.
taxing the irs
In the news today comes the story that the IRS had paid up to $30 million last year to people claiming a non existent credit for slavery repararations.
Although it has caught most of those claims for tax credit, IRS officials have paid out millions of dollars, Rossotti said. A published report put the figure at $30 million. One IRS employee is under investigation for allegedly helping process returns that claimed the credit, government sources confirmed Friday night. Four current and eight former IRS employees also have applied for the credit, government sources acknowledged.

It was unclear Friday whether those IRS employees--largely low-level workers--were aware that their claims were fraudulent, or whether they also were taken in by a burgeoning cadre of promoters who have recently stepped up efforts to market the idea that African Americans can take tax credits for the value of "40 acres and a mule," a Civil War-era reparation proposal that was vetoed by President Andrew Johnson.
This is a mess, and a shame. There are probably a good number of people who were somehow scammed into filing for the fictitious credit. Chances are a number of them have already spent the money from last year's refunds. Now, they are going to be asked to pay it back to the government.
courthouses as icons
A new book from a lawyer in California is about courthouses in California's 58 counties. It looks like an interesting volume. As our new courthouse in New Castle County is having its finishing touches put upon it, I can't help but wonder what it would have looked like if the people planning the building had read this book first. These lines from the article particularly strike me:
American county courthouses are a kind of icon right out of a Norman Rockwell painting: the shade trees around the courthouse square, a handsome domed building with a statue of justice and the grandest ingredient of all:

"Pride," McDevitt said, "civic pride."

The county courthouse, he thinks, is the heart of the diverse regions that make up a state -- "the center for local democracy and the law," McDevitt calls it.
That's not the feeling I get when I look at the new Delaware Justice Center.
The City of Wilmington can't be lambasted for trying novel approaches to making it a better place to live and visit.

For instance, the Wilmington Renaissance Corporation is working to:

  • bring a trolley car to Wilmington,

  • redevelop a six block area between the Christiana Riverfront and downtown, known as the Ships Tavern District,

  • bring schools and education opportunites to the city,

  • make more people interested in living in downtown Wilmington.

Wilmington has always had a good relationship with the business community. For years, the DuPont Corporation has given back to the community. MBNA is a relative newcomer in comparison, but that hasn't lessened the impact that their arrival in the city has had. They have been very involved the community, purchasing land and donating it to expand the Grand Opera House, taking part in educational programs and grants, and being involved with groups like Meals on Wheels, the Delaware Food Bank, Habitat for Humanity, and the Boys and Girls Clubs.

While many companies in the chemical and banking fields have made Delaware their home, there's a push to get some other types of industries active in the State. One newcomer is Advance Magazine Publishers, Inc. which recently announced plans for moving a number of jobs to the city. While writers and editors would not be moved, their shared services center, with accounting, information services and technology positions, would find a location within the Hercules Building in downtown Wilmington. The State and the City provided a number of incentives to attract the company. There's a lot of excitement in their arrival, and many hope that they will recognize the involvement that companies like MBNA and DuPont have had with the city and state.

Their divisions include: Condé Nast Publications, Fairchild Publications, The Golf Digest Companies, The Condé Nast Bridal Division, Ideas Publishing Group, Parade Publications, and CondéNet.

Some of their magazines are: Allure, Architectural Digest, Bon Appétit, Bride's, Condé Nast Traveler, Glamour, Gourmet, GQ, House & Garden, Lucky, Self, The New Yorker, Vanity Fair, Vogue, and Wired

Sports are also acting to change Wilmington's landscape. One of the stars in the efforts to renovate Wilmington has been the minor league Wilmington Blue Rocks, playing at the Judy Johnson Field at Frawley Stadium. They returned to the area in 1993, and were just viewed by their three millionth fan on Sunday.

The stadium is built on land that was once a brownfield near the Christina River. It's now the home to mascot Mr. Celery. For a picture of Mr. Celery, visit the celerysquad web site, and make certain that you heed their advice:
***If you too would like to be part of the Celery Squad, make sure to bring stalks of celery to every home game, but remember: no throwing the celery!! Treat Mr. Celery's family with respect***

The stadium was partially the inspiration behind a plan to bring outlet shopping, hotels, restaurants, and an art exhibition hall to Wilmington, as well as a nature area. Known as the Riverfront Project, this stretch of land was once an almost completely abandoned industrial area. The transformation from a brownfield is a great idea.

As wonderful a notion as this is, the project has seen some troubles, and a recent study was critical of the Riverfront Development Corp. The State has had a heavy investment in the development of the area.
State taxpayers have invested more than $95 million to help develop the Wilmington riverfront since 1992. The Riverfront Development Corp.'s 16-member board of directors includes elected officials, community leaders and business people who are appointed by the governor and state law. It has overseen waterfront development by bringing shops, offices and restaurants to the Wilmington waterfront.
Hopefully, the development will go on. We need successes like the Delaware College of Art and Design, which is bringing something unique to Wilmington.

The latest Wilmington news is that musician and violin-maker David Bromberg is moving in across the street from the Delaware College of Art and Design. Bromberg and his wife, artist Nancy Josephson, were given a building in the city which they will pay to renovate.
As part of the agreement, Bromberg will perform or be the master of ceremonies at up to five city-sponsored concerts a year for five years, according to city records. He also will act as a consultant to the city on musical and nightlife issues and serve as a mentor to children.

Josephson will assist in community art projects for five years. "We like the city because the government and private businesses 'get it' when it comes to having what it takes to creating a cultural scene," Josephson said.
They also mentioned the possibility of putting on some live performances of music on Market Street Mall. The mall hasn't seen much live music since the late '70s and early '80s, when performances were put on regularly. The last mall performance I saw was a lunchtime show a couple of years ago by Mary Arden Collins, who recently relocated to California. Hopefully the Bromberg family's input will help attract new artists, and keep talented artists like Collins in the area.

Thursday, April 11, 2002

old new castle workshops announced
One of the treasures of Delaware is the town of New Castle. With its roots stretching back to 1651, the municipality is unique in a number of ways. At one point in time, the city rivaled Philadelphia as a center of commerce. It was the colonial capital of the State of Delaware.

While it holds a more modest posture these days, it is still an extraordinary place. Especially when it comes to the Trustees of New Castle:
The Trustees of New Castle Common are a most unusual organization. They are unique within the State of Delaware, and perhaps among these United States. The Trustees have a history as old as New Castle because the common land has existed as such since the days of early Dutch colonization when New Castle was Fort Casimir in 1651.

Now more than 200 years later, this body of 13 Trustees oversee a nonprofit charitable organization founded by William Penn, which was incorporated in 1764 and reincorporated by assembly in 1792. The Trustees purpose is to benefit the citizens, to preserve the historical City of New Castle and the remaining lands and open space now held in trust. Its income is derived primarily from property rentals and investments.
The City's code needs updating, and a series of workshops are being planned to get public involvement in the process.
The city of New Castle will hold four workshops beginning today to invite public input for its update of the city's comprehensive plan and zoning codes. Each workshop will focus on a specific issue: Today, land use and redevelopment; April 23, annexation and city edge; May 7, economic development and tourism; and May 21, parking and transportation. All workshops will be at 7 p.m. at New Castle Middle School, 903 Delaware St.
It's one of my favorite places to visit for a few hours when I get a chance.
sign up for environmental alerts
Governor Ruth Ann Minner made a promise in her campaign for governor. The vow was that she would have an environmental release notification system set up so that concerned citizens could be warned of environmental problems such as oil spills or accidental discharges of chemicals from factories. The notices would be sent out within a short time after the events happened.

The notification system was unveiled on Monday. If you would like to receive a message by phone, fax, or email when there are "releases or discharges of contaminants or pollutants," you can visit the Department of Natural Resources and Environmental Control's (DNREC) pages. There, you can sign up for the zip codes for which you are interested.

I think this is a great idea. Citizens often feel like they are out of the loop when it comes to being informed of problems like these.

Wednesday, April 10, 2002

telemarketer pays
Ever come home and listen to the answering machine and find it filled with pre-recorded messages, attempting to sell you something? My machine has been host to some of those messages recently. It's a tactic that ought to be reconsidered. It's legislated against in Washington:
Ben Schroeter, a Magnolia paralegal and live music Webmaster who hates telemarketing calls, knows that holding companies accountable can be a long, weary struggle.

So he was stunned when his e-mail complaining about an automated message left on his answering machine yielded a $500 check and an apology two weeks later.
Good law in action. It may be worth forwarding this article to a state senator.
Chancellor Chandler
A nice article from the San Francisco Chronicle focuses on Delaware's Chancellor, who is reviewing the attempted merger between Hewlett- Packard and Compaq Computer. The author calls the Chancellor smart, fair, hard working, sophisticated, practical, very balanced, and extremely well liked. He also cited Chancellor Chandler's sense of humor.

As an example of that sense of humor, he points to the Chancellor's statements at Sunday's morning hearing on HP's motion to dismiss Walter Hewlett's lawsuit:
"Welcome to the morning service," he quipped at the start of the session, adding that he would have to explain to his mother why he was not in church that morning.
On Monday, a 28 page long opinion on the hearing was sent to the parties deciding that the issues involved in the case should be more fully explored in a trial, scheduled for April 23th.

While there are a number of predictions being made regarding possible outcomes of the case, the only one I'm willing to make is that the opinion deciding the case will be intelligent, sophisticated, and practical, just like its author, Chancellor William Chandler, III.
marriage made in heaven
On their way to get married, a young couple are involved in a fatal car accident. The couple find themselves sitting outside the Pearly Gates waiting for St. Peter to process them into Heaven. While waiting, they begin to wonder: Could they possibly get married in Heaven? When St. Peter shows up, they asked him. St. Peter says, "I don't know. This is the first time anyone has asked. Let me go find out," and he leaves. The couple sat and waited for an answer . . . for a couple of months.

While they waited, they discussed that IF they were allowed to get married in Heaven, SHOULD they get married, what with the eternal aspect of it all. "What if it doesn't work?" they wondered, "Are we stuck together FOREVER?" After yet another month, St. Peter finally returns, looking somewhat bedraggled. "Yes," he informs the couple, "you CAN get married in Heaven."

"Great!" said the couple, "But we were just wondering, what if things don't work out? Could we also get a divorce in Heaven?" St. Peter, red-faced with anger, slams his clipboard onto the ground. "What's wrong?" asked the frightened couple. "OH, COME ON!" St. Peter shouts, "It took me three months to find a priest up here! Do you have ANY idea how long it'll take me to find a lawyer?"

Tuesday, April 09, 2002

aggressive drivers beware
State Police Superintendent Chaffinch is going to get you off of our roads!

Last night as I was driving home on I-95, I read the large lighted sign over the highway, "State Police Enforcement Ahead". I thought..."what the heck!?", and like most of the other drivers, I slowed down.

It seems that the sign did what it was intended to do. It slowed down traffic. And, the newly formed State Police Unit that is now exclusively assigned to patrolling the highways will add substance to the words.
Loreto P. Rufo, gracefully steps from the bench.
After 10 years on the bench, Larry Rufo has left the part-time Newark Alderman position. Last night a surprise farewell party was held for former Alderman, "Larry" Rufo. The recently renovated second floor of the Deer Park hosted the upbeat and congratulatory affair. There were resounding thanks from the City of Newark for a job well done, in reducing the backlog of cases and in collecting delinquent fines. And many amusing reminiscences were shared reflecting Rufo's distinctive judicial style.

When asked what he would do with himself, Rufo said 'It's the first time in a long time that I have only one job. I am going to spend more time with my family.' Deputy Alderman, Robert F. Welshmer, will be struggling to cover all court sessions until the position can be filled.

Deer Park Tavern cir. 1900

Monday, April 08, 2002

law in popular culture
I was reading through some law review articles online at the Tarlton Law Library of the University of Texas School of Law. There's a great collection there, in their Law in Popular Culture Collection.

One that made me think back to law school was Res Ipsa and Fox Hunting, by Lowell B. Komie. A graduate from Northwestern University School of Law in 1954, Mr. Komie writes about a visit to Law School in 1996, and how the institution is different. He doesn't seem to be happy about some of the changes.

While I'll probably read over a number of other articles in the collection, these titles attracted me: Images of Lawyers and the Three Stooges, and Be Led Not into Temptation: Ethics Lessons from The Rainmaker. If you're not a fan of the stooges, you might be better off skipping over the first. The second makes some insightful points.

The last article that I skimmed through quickly, and will read in more detail asks, and answers the question, "Why should lawyers study popular culture?"

When we started this blog, one of the main reasons was to keep track of the latest legal news, and to think about it enough to write about it. Since we are in Delaware, we also wanted to write about how some legal issues might affect people in Delaware. An article like the last one I pointed to tells us that we can't just focus completely upon the law. The world isn't segregated neatly into little categories.

Saturday, April 06, 2002

the story behind the National Cancer Institute's usability web site
A few short months ago, I remember being pointed in the direction of usability.gov. If you design web sites, and haven't seen this site from the National Cancer Institute, you owe yourself a visit to their pages. It's an excellent resource on making web sites more usable for their visitors.

How does such a web site fall into the mandate of an organization that is geared towards fighting cancer?

Some of the explanation for that question lies in looking more fully at their mandate, and origin. Part of their mission is making certain that communication between government and private medical facilities happens.
Given these questions, we began testing the site, an experience that furthered the need to develop a formal way to collect and share our knowledge for future reference. We conducted user tests with doctors, medical librarians, cancer patients, researchers, and others who we expected would be regular visitors. What we learned from testing was as surprising as what we learned from our questionnaire and interviews: some icons were not clearly clickable, many links were confusing, our terminology did not match our users’, and core information appeared to be buried or lost within the site. These were not mere glitches, but conceptual and foundational challenges that needed to be addressed.
Sharing the information that they learned by testing and research helped other web sites which focus on fighting cancer.

Their site received such positive responses that it was made accessible to the public.
the jukebox cabal
1962 was a very different time. People didn't have the concerns we do today about copyright, and licensing, and technology. Or did they? The Atlantic Monthy is running some blast-from-the-past stories on their pages, including one about jukeboxes, and copyright:
This year, those who are supporting the change in the law have reason to be optimistic. Representative Emanuel Celler of New York has introduced a bill "to stop the legalized piracy of copyrighted music by the jukebox syndicate," and a vote will be taken at the current session of Congress. As for the Senate, its Judiciary Committee has already recommended a similar bill in a previous session. Supported both by the Sandburg group and by the public's growing awareness of underworld domination of the jukebox business, the current bill has an excellent chance of passing. If it does, the usually unsung songwriter will finally be able to give less thought to the nation's laws and more to its musical needs. Who knows? With added financial security, he may even write better songs.
The evil of the jukebox sounds suspiciously like the evils of streaming radio and peer-to-peer filing sharing.

I'm firmly convinced that the music industry is missing out on a tremendous opportunity. Sales of cds can be triggered by wide spread distribution of songs over internet radio and file sharing. Just as a jukebox gave people a chance to hear new music, and the inspiration to buy a copy for their own personal enjoyment.
the power of the cell phone
Global positioning chips in each cell phone? Data harvesting regarding personal usage? Displays acting as mini-billboards? I've been holding off on getting a cell phone, but I know a lot of people who use them as if they were an extension of their bodies. An Alternet article asks, "Is your cell phone watching you?" Here's one quote from the article that had me thinking a little:
Pango sets up zones called "hot spots" within businesses or shopping malls. Hidden sensors can detect your phone or Palm Pilot, upon which the system hums into life, sending ads for merchandise you might be standing near and compiling data about your shopping habits: What stores have you visited? Did you linger near the wrinkle-free khakis or by the animatronic Hello Kitty display? Boxers or briefs?
I think I'll hold off longer on getting a cell phone.
HP - Compaq joinder challenged
Walter Hewlett has squared off in Delaware Chancery Court to stop the proposed meger/acquisition. Delaware is frequently the arena for disputes involving major corporations.

Delaware's Chancery Court has developed a particular expertise in handling such matters in a predictable and efficient manner. Efficiency and predictability being key factors sought by business decision makers.

Friday, April 05, 2002

hotel for sale
radisson hotel sits empty

It overlooks a junkyard, and swamp land, and has 40,000 square feet that possibly can't be used. It was ready to open in August of 2000, but wasn't allowed to be occupied because it was built with an extra floor, which wasn't included in the building permit application.

Questions surround how the hotel could have been built with the wrong blueprints. The developers claim that the county's refusal to allow it to open, or to allow them to somehow ameliorate the problem has caused the loss of millions of dollars. They've filed a lawsuit to attempt to regain some of their losses.

On Tuesday, the hotel had new owners. The developers tried a last attempt sale, which failed, and defaulted on a bankruptcy agreement. A Florida bank took over ownership as a result of the default.

For now, the hotel sits empty. With a new owner, the county might allow it to open.

Thursday, April 04, 2002

art and bravery
I was visiting Denise Howell's Blawg Bag and Baggage and a picture of a tiger captured my attention. Moving my cursor over it, I realized it was a link, which I followed.

It brought me to the web site of the artist, Thomas Pacheco. Thomas is seven, an artist, and has been diagnosed with a rare form of cancer.

The web site's aim is to sell some of Thomas' art so that they can raise money for medical and related costs (most of which aren't covered by insurance), and to allow his family to spend some time with him as he fights this disease.

Thomas is a brave young man. Please, visit his site, and tell some friends about it.

Wednesday, April 03, 2002

driving safety
A series of articles from Matt Labash of the Daily Standard looks at red light cameras, longer yellow lights, and speed limits, with some startling conclusions. If he is right, it's possible that everything we think we know about roadway safety is wrong. (via instapundit)
constitutional arguments
One of the classic pieces of scholarship on the second amendment is The Embarrassing Second Amendment, by Sanford Levinson, originally published in the Yale Law Review. It does a great job of weighing carefully whether the amendment allows either an individual's rights to gun ownership or a state's right to have a militia.

But, what really stands about the article is the methodology that Sanford Levinson uses to explore possible arguments under a constitutional provision:
My colleague Philip Bobbitt has, in his book Constitutional Fate, [30] spelled out six approaches -- or "modalities," as he terms them -- of constitutional argument. These approaches, he argues, comprise what might be termed our legal grammar. They are the rhetorical structures within which "law-talk" as a recognizable form of conversation is carried on. The six are as follows:

1) textual argument -- appeals to the unadorned language of the text;

2) historical argument -- appeals to the historical background of the vision being considered, whether the history considered be general, such as background but clearly crucial events (such as the American Revolution). or specific appeals to the so-called intentions of framers;

3) structural argument -- analyses inferred from the particular structures established by the Constitution, including the tripartite division of the national government; the separate existence of both state and nation as political entities; and the structured role of citizens within the political order;

4) doctrinal argument -- emphasis on the implications of prior cases decided by the Supreme Court;

5) prudential argument -- emphasis on the consequences of adopting a proferred decision in any given case;

6) ethical argument -- reliance on the overall "ethos" of limited government as centrally constituting American political culture.

I want to frame my consideration of the Second Amendment within the first five of Bobbitt's categories; they are all richly present in consideration of the Amendment might mean. The sixth, which emphasizes the ethos of limited government, does not play a significant role in the debate of the Second Amendment.
The presentation that Sanford makes while showing how these arguments can be used provides a very helpful example for anyone wishing to debate an issue on constitutional grounds.
proportionality vs. voter rights---running debate
[The subject of the debate: two cases, dealing with the three strikes laws in California. The Supreme Court has decided to rule upon them. How will they rule? Why? How should they rule?]

The first thing the U.S. Supreme Court will have to tackle, when deciding the California cases (Lockyer v. Andrade, 01-1127, and Ewing v. California, 01-6978) is whether they will continue to follow Solem v. Helm (463 U.S. 277).

Under Solem, the Court stated that although the state legislatures [and presumably state voters] are afforded substantial deference, there is no state mandated sentence that is per se, constitutional. The Solem court ruled that the sentence for the triggering crime must be proportionate to that crime.

I anticipate that the first part of Bill's argument, and probably the meat of it, is that the Court should now follow Solem, and find that the California sentences are disproportionate and thus unconstitutional. I will go out on a limb and predict that this Court will decline to follow (overturn) Solem.

I think instead that the Court will uphold the California sentences and reiterate the language of Harmelin v. Michigan..." We conclude from this examination that Solem was simply wrong; the Eighth Amendment contains no pro-portionality guarantee."

If I am wrong, I doubt very seriously that the Court will declare California's statute unconstitutional, they would more likely just reverse those particular sentences.

If I am doubly wrong I will be picking crow feathers from my mustache for quite a while.

Tuesday, April 02, 2002

weight loss tax deductible?
The Internal Revenue Service will now allow participation in medically approved weight loss programs to qualify as medical expenses, eligible for tax deductions.

The deduction is retroactive to 1998, and amended tax returns from previous years can be filed to take advantage of this decision. There are limitations to what can be deducted. Medical expenses seem to be what the IRS is including as the costs covered under this interpretation of obesity as a disease.
Taxpayers have been able to deduct the costs of weight loss programs as a medical expense since 2000 only if they were recommended by a doctor to treat a specific disease. Obesity itself was not recognized by the IRS as an ailment that qualified for the weight loss expense deduction.
Note that special dietary foods aren't deductible.

And if you haven't filed your taxes yet this year, you might want to take a peek at the IRS document on tax scams that they call: The ‘Dirty Dozen', (pdf) which includes some good advice on how not to get taken.

The days to file are getting shorter. I have some forms to download....
international spam fighters
On the heels of an article in yesterday's LA Times entitled State Spam Laws Rarely Enforced comes news of a new initiative from the FTC, and a multistate task force.

The Times article pointed at Delaware's spam law as one of the toughest in the states, and noted that it had never been used in a criminal prosecution.

The federal government seems to be looking to address the difficulties that the states have been having locating spammers. Working with a number of states, and four Canadian agencies, this international netforce has started a serious effort to stem the rising tide of unsolicited commercial emails.
Partners in the International Netforce include the Alaska Attorney General, the Alaska State Troopers, the Alberta Government Services, the British Columbia Securities Commission, the British Columbia Solicitor General, Canada's Competition Bureau, the Federal Trade Commission, the Idaho Attorney General, the Montana Department of Administration, the Oregon Department of Justice, the Washington Attorney General, the Washington State Department of Financial Institutions, and the Wyoming Attorney General.
It's good to see an international group working together on a problem that will probably only grow in magnitude.

Wired gives a good explaination of why the group has choosen now to take action:
Since the beginning of 1998, the FTC said people have forwarded 10 million spam messages to uce@ftc.gov, the address for the agency's junk e-mail database.

But the all-time biggest month, Harwood said, was March. Following a publicity campaign to draw attention to the junk e-mail problem, the agency received 1 million forwarded spams in that month alone.
While the ultimate solution to spam may require legislation, or some way of changing the way that the internet actually works, without an enforcement effort of some type, any legislation is doomed to fail.
If you've one of the regular readers of this blog, you may have noticed that there is more than one person contributing entries. I made an entry last night about a news article appearing in the LA Times which discussed habitual offender statutes (three strikes laws).

I didn't realize until this morning that Larry had made a response to my post, and had sent me an email with the subject line "Your Turn." I guess he took offense to my remark about opening season, and baseball. I didn't expand upon the baseball metaphor I pointed out. If I had, I would have said that criminal law is not a game, and using a baseball metaphor to sell a three strikes law to the public is a sham.

I sent an email to Larry telling him that his post was too long. Nobody wanted to read all of those statutes. If you haven't read the meat of his initial argument, skip past the statutes. It's there, or at least the beginning of an argument is there.

But, what I want to know is how is Delaware's law different from the California law, which seems to result in some pretty stiff sentences for some fairly harmless crimes? Shouldn't there be some level of proportionality between an offense and a sentence? Isn't there a means of receiving a similar result from a less expensive means of supervision? Wouldn't a lengthy term of probation for the third offense achieve the same result at a fraction of the cost? Can't the failure to rehabilitate be partially blamed upon the state?

So Larry, rather than present my arguments, how about if you anticipate them? Tell me what I might argue, and why it might be wrong. That's the gauntlet I'm laying down.

Monday, April 01, 2002

cumulative bonus territory
The "three strikes" statutes are commonly referred to by that phrase because of the frequency of the use of three offenses, but they also occur at various times as "two, three, four, or even ten strikes" in Delaware statutes. The enhanced penalties are not properly to be construed as the penalty for the second, third, fourth or tenth offense, but rather as a bonus sentence for the cumulative criminal efforts of the defendants. Or are they?

We see the two strike rule when juveniles commit their second felony level delinquent act within a year of their last one. This carries a minimum mandatory 6 month period of incarceration.
10 Del. C. § 1009. Adjudication; disposition
(1) Any child who has been adjudicated delinquent by this Court of 1 or more offenses which would constitute a felony were the child charged as an adult under the laws of this State, and who shall thereafter within 12 months commit 1 or more offenses occurring subsequent to the said adjudication which offense or offenses would constitute a felony were the child charged as an adult under the laws of this State, and thereafter be adjudged delinquent of said offense or offenses, is declared a child in need of mandated institutional treatment, and this Court shall commit the child so designated to the Department of Services for Children, Youth and Their Families for at least a 6-month period of institutional confinement;...
The three and four strike rules can be seen in the adult criminal arena, and can result in life sentences or at least the maximum sentence available for the most recent crime.
11 Del. C. § 4214. Habitual criminal; life sentence.
(a) Any person who has been 3 times convicted of a felony, other than those which are specifically mentioned in subsection (b) of this section, under the laws of this State, and/or any other state, United States or any territory of the United States, and who shall thereafter be convicted of a subsequent felony of this State is declared to be an habitual criminal, and the court in which such 4th. or subsequent conviction is had, in imposing sentence, may in its discretion, impose a sentence of up to life imprisonment upon the person so convicted. Notwithstanding any provision of this title to the contrary, any person sentenced pursuant to this subsection shall receive a minimum sentence which shall not be less than the statutory maximum penalty provided elsewhere in this title for the 4th or subsequent felony which forms the basis of the State's petition to have the person declared to be an habitual criminal except that this minimum provision shall apply only when the 4th or subsequent felony is a Title 11 violent felony, as defined in 11 Del. C. § 4201 (c) of this title. Notwithstanding any provision of this title to the contrary, any sentence so imposed pursuant to this subsection shall not be subject to suspension by the court, and shall be served in its entirety at a full custodial Level V institutional setting without benefit of probation or parole, except that any such sentence shall be subject to the provisions of 11 Del. C. § 4205 (h), 4217, 4381 and 4382 of this title.

(b) Any person who has been 2 times convicted of a felony or an attempt to commit a felony hereinafter specifically named, under the laws of this State, and/or any other state, United States or any territory of the United States, and who shall thereafter be convicted of a subsequent felony hereinafter specifically named, or an attempt to commit such specific felony, is declared to be an habitual criminal, and the court in which such third or subsequent conviction is had, in imposing sentence, shall impose a life sentence upon the person so convicted unless the subsequent felony conviction requires or allows and results in the imposition of capital punishment. Such sentence shall not be subject to the probation or parole provisions of Chapter 43 of this title.

Such felonies shall be:

... [long list of serious felonies ommitted]

Notwithstanding any provision of this title to the contrary, any sentence imposed pursuant to this subsection shall not be subject to suspension by the court, and shall be served in its entirety at a full custodial Level V institutional setting without benefit of probation, parole, earned good time or any other reduction. ....
Take note that the drafters of the adult criminal laws took great care to make sure that the habitual offender statute would not interfere with one's opportunity to be executed for a crime, if appropriate. It is also interesting that all of these crimes need not have been committed within the State of Delaware. The defendant could have committed crimes number one and two in Nevada, for example, and then the triggering final crime in Delaware.

And driving related offenses can be seen to trigger their own civil, not criminal, three and ten strike events. Although most of the habitual bad driver statutes result in a lengthy revocation of a driver's license, and not life imprisonment.

On one hand, it can be seen that the bonus punishment under these statutes are relating back to the cumulative pattern of behavior.

But the dilemma becomes apparent in the logic when (or if) one considers that after a defendant has completed her sentence for crime number one, she has fully discharged her debt to society for that crime. When she completely serves out her time out for number two, she similarly has fully paid her dues.

But when she commits her third offense, even if minor in comparison, can the government retroactively go back and say that we are now adding a penalty for crimes number one and two? If not, then isn't a life sentence for stealing a postage stamp so outrageously disproportionate as to be unconstitutional? Does the fact that the defendant has had notice of the existence of these "three strike" rules all through her criminal career ease our concerns in that regard sufficiently?

For me it does. But that does not mean that I still don't have difficulty in the legal analysis of the problem. It just means that I don't feel sorry for career criminals. I live here too.