Saturday, August 31, 2002

Jean Luc Picard look-a-like cleared by judge for study

The legal battle pitted scientists against the US Government over an application of the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA). At the heart of the litigation is a skeleton discovered on the banks of a Washington River in 1996, which is estimated to be 9,300 years old. The government was going to return the body to Native Americans so that it could be buried.

Yesterday, a Federal Magistrate acted to allow scientists to study the remains of the Kinnewick Man. The discovery had excited many people, especially after a facial reconstruction was performed which resulted in an image that many claim resembles Patrick Stewart. The Tri-City Herald has been keeping a watchful eye upon the events surrounding Kinnewick Man, and has released the Judicial Opinion (pdf) which rejects the applicability of NAGPRA and allows the scientist to perform tests upon the remains.
"business to force breakup of a couple"

A new line of detective work for investigative agencies in Japan blurs the line between intimacy and business. Want a divorce, or to break up with your significant other, but you can't bring yourself to make that move? How about hiring someone to seduce your partner, so that they ask for a split?
A husband who wants to dump his wife will hire a couple-busters firm to engineer an "accidental" meeting between his wife and a good-looking, attentive man who is secretly an agent. Soon, the wife is in an affair with him, and willingly grants her husband a divorce. The agent then fades away, his cell phone turned off, the address he gave her vacant, his workplace number a fake.
Ok, you might be asking, "How different is this from prostitution, since sex is taking place in exchange for money?" Well, maybe you're not asking that. I, for one, am wondering when this practice makes its way to the States as a reality based TV show.

Friday, August 30, 2002

florida's adoption law

You've probably read about the furor over Florida's new adoption laws. The law balances mothers' privacy rights against fathers' parental rights. But, it does so when the father is unknown, or can't be located, and places all of the burden upon the mother. If the identity or location, or both, of the father of a child is unknown, and a child is being put up for adoption by the mother, the mother is required to place a newspaper ad to find the father:
In the ad, the mother must disclose her name, age, height, hair and eye color, race and weight; her child's name, date and place of birth; and -- if it is the address that is unknown -- the father's name. Moreover, she must also publish her sexual history -- a description of every potential father and the dates of their sexual encounters. The ad must run once a week for four weeks in a newspaper in each city or county in which conception might have taken place in the year before the child's birth.
Florida is reconsidering this law. And, it's possible that a Florida appeals court will strike it down as unconstitutional as a challenge to the law reaches the court:
Therefore, although the judge denied the women's motion to declare the entire notification provision unconstitutional, he left an opening for their lawyer as she takes her case to the Florida appeals court. The women's attorney needs to present a convincing case to the Florida appeals court of the many less intrusive alternatives that do exist.
The findlaw article does a very good job of describing how "compelling state interests" are viewed in the context of "least intrusive methods" when a right such as privacy is at issue.
labor day

For many of us, this weekend has an extra day as we celebrate Labor Day on Monday. The Department of Labor has a section on the History of Labor Day about its beginnings and meaning. And, in New York City, instead of a parade, Battery Park is the location of this year's holiday activities. May you all have a safe and peaceful Labor Day.
arctic shortcut to be completed in 10 years

The famed Northwest passage, the sea route connecting the Atlantic to the Pacific by going around Canada and Alaska, is tentatively scheduled to open in 10 years. Whether global warming is a natural phenomena or manmade, it is melting the ice packs and preparing a nice summer route for shipping. Imagine a short cut that saves you 4000 miles!
burning the midnight oil

Sometimes these all night jobs, really take all night.

Thursday, August 29, 2002

animal rights law

The pages of the Animal Rights Law Center at Rutgers Law School are a pretty good introduction to a number of legal issues involving how we interact with animals. The latest copyright date I see on their pages is 2001, so I don't know if the site has ceased being updated, or if they will resume with the coming semester. I suspect the later -- this particular study of law has been part of the curriculum at Rutgers since 1990. The Centers includes topics such as how companion animals should be treated in rental housing, students rights and conscientious objection when it comes to harming animals, and many others.
end abuse

End abuse, or rather endabuse.org. That's the web address for the Family Violence Prevention Fund. It's a site filled with information and resources on efforts to prevent domestic violence. I like the approach that they take in their efforts. The organization looks at Domestic Violence Courts, educating judges, health care, and many other issues involving violence between family members. I also liked their section with suggestions on how to contact Congress and the section on current legislation.
changes over time

A good friend and colleague observed today, that we, that merry band of brothers who had weathered college (plus 20) together had changed from angry young men into grumpy old farts. That's all I have time for today. Grumph! I am behind on all my deadlines. Grumph!
fda takes on the red cross

I wasn't aware of the ongoing litigation between the Food and Drug Administration and the Red Cross. A ten-year-old Federal District Court suit in Washington State sees its next action on September 24th, when a motion filed by the FDA will be argued. The government agency is asking that the Red Cross be held in civil contempt for failing to honor a consent decree from 1993. They are also asking for authority to levy fines in the future for violations that may arise. A brief filed last week indicated numerous violations in the nearby Chesapeake region, which includes Pennsylvania, Maryland, Virginia, and the District of Columbia. The list of charges against the organization that collects half the nation's blood supply states that the Red Cross:
-- "Continues to accept donors who have not completed the health history questionnaire, including those who leave unanswered the question designed to detect those at high risk for HIV/AIDS."

-- Accepts blood from donors with very low blood pressure and those who have given within the past eight weeks, putting them at risk of adverse reactions including anemia.

-- Has "lax inventory control," including "losing blood products" and "distributing unsuitable blood products."
I'm wondering that, if not for the press reporting about the lawsuit, would we have heard anything about these ongoing troubles between the FDA and the Red Cross.
kafka meets ashcroft

Enemy combatants designated as such secretly, courts that release their decisions as classified opinions, a bureaucracy that would humble the one faced by Josef K. in Franz Kafka's writings; these are the things that an editorial that the New York Times titled Washington Bends the Rules (reg. req'd) point to in a call for action to Congress.
alexander the really great

A Foundation based in America is clashing with a cultural minister in Greece over a proposed image of Alexander the Great to be carved in the side of a mountain near the birthplace of Alexander in November. The image would be 240 feet high, which is roughly four times the height of the presidents at Mount Rushmore.
James Rigas, president of the United Hellenic American Congress, which supports the project, said that the planners were not seeking to cause political mischief.

"This project is all about Greece expanding its vistas," he said, "being more flexible in its outlook as a modernizing Western state and boosting tourism, its primary source of income.
I have to agree with the author of the article -- I'm not sure that even Alexander would approve.

Wednesday, August 28, 2002

the ftc presents dewey

Smokey Bear and Woodsy Owl are going to be joined by Dewey Turtle. The "official" unveiling of the mascot for child safety on the web will be in September.
leaving j. edgar hoover to history

While J. Edgar Hoover was recognized for his leadership of the FBI by having the agency's headquarters named after him, he has also been the target of much stern criticism. Attorney General John Ashcroft has been asked to put his support behind legislation to change the name of the building. The request comes from Martin Luther King, III, who is the head of the Southern Christian Leadership Conference (SCLC). I hope that the Attorney General gives some serious thought to the SCLC President's appeal. If the SCLC could convince the State of Georgia to change their flag, I'm guessing that they will have some success with an FBI Headquarters redesignation. The suggestion may come at a time when it is appropriate to make a fresh start for the agency. I don't know that the building really needs to be named after anyone.
Rosh Hashana primaries

Delaware's primaries are held on Saturdays. This year, they are also held on Rosh Hashana. I'm wondering if it might be less expensive for the State to move the date, then it would be to process 13,000 absentee ballots. Regardless of the cost, moving the date is the right thing to do. Maybe those ballots would be best used on candidates expressing an interest in holding primaries on some day other than a Saturday. I'm not Jewish, but I am disgusted.

[Later -- A few more details from Saturday's Wilmington News Journal. ]

Tuesday, August 27, 2002

"jump out" squads and photographing loiterers

I'm not certain that Wilmington's Mayor Baker is having a good day today. I read the following quote from him this weekend in the local newspaper, and circled it in anticipation of writing about it this evening:
Mayor James M. Baker said criticism of the photographing is "asinine and intellectually bankrupt," and he will not stop the practice.

I don't care what anyone but a court of law thinks. Until a court says otherwise, if I say it's constitutional, it's constitutional.
It appears that a number of other people have spread the word far quicker than I could. The practice being complained about involves taking pictures of people on high drug traffic street corners when a "jump out" squad arrives in response to a stakeout of the corner. Photographing people whom you are subjecting to a Terry Stop might not be illegal, but it's gotten quite a few people concerned.

The most extensive coverage seems to come from the UK Guardian, who tell us that Wilmington is a "US city where you can be guilty until proven innocent." The author of the report, Oliver Burkeman, observes from New York City that:
In a sinister, authoritarian American city of the future, cutting-edge surveillance technology and over-zealous policing combine to create the ultimate weapon in the war on crime: the ability to track down individuals who will go on to become criminals - before they have even done anything wrong.

This may be the premise of Minority Report, the sci-fi thriller starring Tom Cruise, set in Washington DC in 2054 - but it also appears to be par for the course today, barely 100 miles away in Wilmington, the largest city in the otherwise unremarkable US state of Delaware.
I've used the phrase "jump out" squad without really explaining it. The Wilmington News Journal ran a similar story to this one about three weeks ago, but without a controversial quote from the Mayor of Wilmington. Its focus was less upon photographs, and more upon the use of "jump out" squads:
Two new Wilmington police squads have been conducting raids in the city's most notorious outdoor drug areas this summer with a tactical approach that uses as many as 20 officers at a time.

The large squads of police officers have been surprising dealers by speeding up to a corner in an unmarked van, with several more officers in marked and unmarked cars close behind. In seconds, the officers jump from the vehicles and begin questioning and searching people on the corner.
A surveillance car is being used to verify that some type of drug activity is going on at a street corner before a "jump out" squad is called. This is the time when Terry Stops are being made, and some photographs are being taken. The locations are a limited few. And, not all of the people who live in those locations are upset about an increased police presence:
Robert Cooper, of 29th and Tatnall streets, said the squads have descended on corners in his neighborhood several times since June. He said the raids are the reason he can do yard work in the afternoon without having to face groups of hostile young men from other parts of the city standing on his corner.

"I saw a father teaching his son how to ride a bike around our block one evening last weekend," said Cooper, who has been a critic of other recent police deployments. "They couldn't have done that last year. We were all inside because that's the only place it was safe to be at night."
I'm not going to go as far as a News Journal editorialist and praise Mayor Baker (Baker is right to ridicule photo critics). The use of one of the pictures in a police lineup would be inspiration for a motion to supress, as noted by one of the attorneys interviewed by the News Journal. But, I do want to make certain that people are aware that the citizens of Delaware aren't being lined up, and photographed for inclusion in a pre-crime database as might exist in the movie Minority Report, or as portrayed in this Associated Press release from the Houston Chronicle.

[later- August 28, 2002 - Norman Lockman's editorial A lot of bad actors wound up in pictures is worth reading on this topic.]

Monday, August 26, 2002

supreme court historical society

In a couple of weeks, this blog will be one year old. While writing here, I've discovered in interest in history that I wasn't aware of before. In many ways, the law does teach someone to be concerned about history. How has a court ruled previously on a specific issue? Were the facts and circumstances similar? Have other courts addressed the holding in a specific case? Is there a legislative history? There's a drama to a case that isn't always evident upon reading a judicial opinion. And, there's a history behind certain institutions that you can pay attention to, or ignore at your own peril.

I came across the web site of the Supreme Court Historical Society tonight. The Society was started in 1974 by late Chief Justice Warren E. Burger. There's some fascinating views into the United State's Highest Court on those pages. While I found the History of the Court and the Homes of the Court worth spending some time visiting, the pages I most enjoyed were in the publications section of the site. The title of one caught my eye, and I had the chance to read it, but I'll be back to spend time with the others.

An intriguing look at the process and politics of the selection of a Supreme Court Justice is in their article entitled The First Woman Candidate for the Supreme Court -- Florence E. Allen. The year was 1934 when her campaign first began. Florence E. Allen was as qualified as anyone else who could be chosen. During her professional career as a federal circuit court judge, she was "'available' for twelve vacancies." After reading about her campaign to be appointed, I can't help but wonder what type of legacy she would have left behind. If you have any interest in the judcial selection process, this essay is worth a look.
blogging jurist

The perspicacious Alice of A Mad Tea-Party noted yesterday that the legal portal Jurist had added a blog to their front page, and included links to a number of other blogs on their pages (including the Delaware Law Office). Welcome to the dance!
insurance fraud

The most glaring instance of insurance fraud, that is thrown in my face daily, is the fraud by health insurance companies upon us. When I used to get my regular prescriptions at my local pharmacy, I would frequently hear the sheepish pharmacist report to me..."your insurance company says you can't get your prescription today...you need to come back tomorrow...you are one day early". I can feel the blood rushing to my head still, as I sit here typing. It is hard enough for me to break away from my job long enough to go to the pharmacy, now they want me to come back tomorrow. Why? Are they concerned that I might take an extra dose of my blood pressure medicine?

What business is it of the insurance company to so tightly regulate what day I am "allowed" to pick up my prescription? Isn't that supposed to be something between my doctor and I?

It turns out that they have no such right. The insurance company can refuse to pay for it though. And this really brings into focus the actual motivations of the insurance company (as if there was a doubt) and how they wield raw and unwarranted power over us and the local pharmacists.

Now, I have my prescriptions mailed to me by the same insurance company, in 3 month containers. And I reorder by telephone. And I never get that "you are too early" excuse. This new change in their position is clearly because they save money with the mail order prescriptions over the pharmacy prepared prescriptions.

I look forward to hearing about a "restraint of trade" class action against the insurance companies brought by pharmacies. On that day I will feel quite giddy, but not because of medication.

Sunday, August 25, 2002

can corporations engage in speech that isn't commercial speech?

A Washington Post editorial entitled Free Speech for Nike is about the distinction between advertising of services and products, and a statement by a corporation regarding its business practices. Is it possible for a corporation to engage in free speech, and have those rights protected under the constitution? The article is also about a lawsuit in which the California Supreme Court
held that statements by Nike in response to criticism of its overseas business practices were commercial speech that, if false, could subject the company to liability under state law.
Is all speech from a corporation "commercial" speech? Can it ever be political speech, protected under the constitution? The editorial goes on to say that:
Under the California court's standard, many of the letters this page receives every day would be grist for lawsuits -- not against The Post, but against the companies whose representatives sent the letters.
I think that it is sometimes possible to distinquish between commercial and political speech made by a corporation based upon the forum and content. But, sometimes the differences between the two can be blurry at best, and that may argue against free speech rights for corporations. Here are some opinions and documents involving the Kasky v. Nike case:

Kasky v. Nike, Superior Court Opinion, via Corpwatch (April 20, 1998)
Kasky v. Nike opinion, Court of Appeal of the State of California, First Appellate District, Division One; via the California First Amendment Coalition (March 20, 2000)
ACLU Amicus Curiae brief (pdf), ACLU (December 20, 2000)
Greenwashing on Trial, Mother Jones (February 23, 2001)
Kasky v. Nike opinion (pdf), California Supreme Court (May 2, 2002)
PR Campaigns Lose Speech Protection, law.com (May 3, 2002)
Let Nike Stay in the Game New York Times (reg req'd) (May 6, 2002)
Court Rules that Nike Can’t "Just Do It", Center for Individual Freedom (May 10, 2002)
Modification of Supreme Court Opinion (pdf), California Supreme Court (May 22, 2002)
The ACLU's Position in Kasky v. Nike, ACLU of Northern California (May 31, 2002)
Nike, Inc. to Ask U.S. Supreme Court to Reaffirm First Amendment Right Of Businesses to Discuss Public Issues, News.com (August 1, 2002)
criminal checks on wall street

Brokers and floor traders on Wall Street had been required to be finger printed before the National Association of Securities Dealers (NASD) certifies them. By virtue of a new anti-terrorism based law in New York State, technical and support workers at securities associations registered with the SEC will be required to be finger printed and subjected to FBI criminal background checks.
supreme court terms

A Findlaw.com Writ entitled Should U.S. Supreme Court Justices Be Term-Limited?: A Dialogue is worth considering. The authors suggest an 18 year term limit. I don't know that I'm fully convinced, but they have me thinking about it seriously.
weblog vs. email candidate for congress

Delaware congressional candidate Steve Biener captured some media attention with a little practiced method of campaigning. It consisted of sending out emails to as many people as he could, in an effort to get them to vote for him. In July, his method of acquiring a constituency was reported upon in gigalaw.com in an article entitled Political Spam: A Worthy Campaign Tactic? Larry Kesterbaum, of Polygon the Dancing Bear had some interesting comments on the subject, including this one:
Sending mass unsolicited email messages is spam and is always a bad idea for a political campaign. Absent a massive cultural and technological shift, it will always be a bad idea for a responsible mainstream candidate.

As Isenberg points out, the First Amendment surely immunizes political messages from any existing or future anti-spam laws in the U.S. But that doesn't mean it's a good tactic for someone who is trying to win an election.
I'm not certain that the email campaign is working too well for Mr. Biener. If the very slim turnout in front of the Daniel Herrmann Courthouse a few weeks back for his campaign speech was an indication of the efficacy of his methods, he might consider incorporating a more mainstream approach.

Another candidate of Congress is also using the internet as a base of operations for her campaign. A North Carolina candidate, Tara Grub started a weblog to present her views and experiences while campaigning to the public. The press that she has received has been much more positive than that for Steve Biener. I do agree with some of the comments on this Metafilter thread that it would be helpful to have a more complete web site that explains her views on other issues, in addition to the web log. Dave Winer, at Scripting News may be helping her do just that.

I also find myself inclined to be much more positive about Tara Grubb's campaign than Steve Beiner's. And that's without really knowing their perspectives on different issues.
Tricks of the Trade
By Private Investigator Michael T. O'Rourke

Question: I am a Paralegal with an attorney specializing in plaintiff personal Injury cases. Our potential client alleges a local nursing home abused and neglected her mother. Her mother was rushed to the emergency room where she subsequently died. We would like to look into the matter more closely before accepting the case. Do you have any suggestions?

Answer: All investigations begin with a witness to an event. Interview the client to ascertain names of staff, administrators, complaint history, specific allegations, etc…In an effort to locate witnesses to abuse, you should first send a letter requesting to the State of Delaware, Division of Public Health, 1901 N. duPont Parkway, New Castle DE 19720. This agency regulates the nursing home industry in Delaware. Recite the Freedom of Information Records Act in your request and ask for the following records:

A list of employees who worked at the nursing home just prior to, during and shortly after the patient was at the facility. Specifically request the social security numbers of the employees, their last known address and their date of birth. If you specify that you would like a copy of their licensing application, the information should be included on these.

Ask for all records pertaining to any disciplinary action taken against the nursing home or any of the staff members during the time frame in question.

Request a copy of the State's inspection records for the facility during the specified time frame.

Ask for a copy of the facility's licensing records including the application, ownership and corporate records.

The State may try to avoid providing this information to you and may even ask for the State's Attorney General to rule on whether or not they have to release the information. In general, they will eventually have to release at least part of this information. The remainder can be gained by subpoena after suit has been filed if you choose to accept the case. Information the State does not include can be surely gained from the nursing facility at a later date.

The records should be closely scrutinized for information that may suggest certain employees who have had conflicts with the facility and who may therefore be adverse towards the nursing home. These are the employees that you should seek out first. Current employees should be deposed, and former employees should be interviewed. Make sure your investigator complies with Monsanto v. Aetna Cas. & Sur. Co. , Del.Super., CA.No. 88C-JA-118, and Del. Law Title 24, Chapter 13.

Obtain copies of the patient's medical files and charts. Ask the potential client to request, from the nursing facility, the patient's daily charts in which reflect their eating habits, medicines, etc. After doing so, you should then ask for a list of employees and their schedules that worked during the time frame in question. Your client might even know some of the names if she was a frequent visitor to her mother over a duration of time.

Once you have these, you can begin to cross-check the records with the charts to see if the person was actually working on the day in which they insert their initials.

The "drug charts" should be checked to see if the medications were being given to the patient on a regular basis. The patient's doctor should be contacted and a copy of their records obtained as well. These records should be matched against the orders in the nursing home records to insure that they reflect that the nursing staff properly received, executed and documented the orders by the doctor. The medicine should be checked to make sure that the doctor actually prescribed those that the facilities were giving to the patient. A check of the charts should be conducted to make sure that the person giving the medicine was licensed to do so. In addition, the records need to confirm that the person signing the drug chart was actually on duty on that particular date. The daily charts of the patient should also be examined to see if there is an unusual change in the weight and eating habits of the patient.

In the course of the investigation, police department records should be reviewed as well. Each jurisdiction has different restrictions on their records and their accessibility as well as the ways in which they can access the records. Where possible, ask them to check the home by address for a period of at least one-year prior to the time the subject was in the facility through at least six months afterwards. Request that they search the records by pulling every police call made regarding the facility's physical address. Check the list for those calls regarding abuse, disturbances, thefts and similar circumstances. These may further document that the home has a problem with abuse as well as identify potential witnesses.

Conduct a previous litigation history inquiry at the Prothonotary’s office, and USDC Clerk’s office, utilizing the JIC System, or other computer based database. This will reveal any lawsuits filed against the nursing home facility or the owners of the home. If any are found, the actual file should be reviewed to better determine the facts and parties involved. The records may also list employee's names and other witnesses who may be helpful to your case. Be certain to check both criminal and civil records. Be sure to conduct a criminal history inquiry on employees having contact with the patient.

A check of the State of Delaware Secretary of State's records should also be researched. The Secretary of State will have records reflecting the corporation that owns the nursing home, the officers, addresses, date it was filed, charter number and whether or not they are currently in good standing with the State. The registered agent for service of process will also be gained.

The hospital records (CCHS or St. Francis) should be obtained and reviewed to determine the course and reasons for treatment. These should be checked and corresponded with the facility and doctor's records. If the person died in the hospital, it should reflect the actual cause. The records should be reviewed for any information concerning abuse such as broken bones, bruises, lacerations and similar identifiers.

The medical examiner's office records should be obtained and reviewed as well if an autopsy was conducted. The reports need to be cross-checked to determine the medications found in the person's body (or lack of medicine), the bruises, broken bones or similar signs of abuse. The ultimate reason for death will also be noted and should be double-checked against the facility's and your client's reasons.

Additional sources of information include families of former patients, families of current patients, equipment repair personnel, outside maintenance personnel, visitor logs, surveillance videos from CCTV security, EMT and ambulance crews, insurance companies, and even local clergy.

There is a fine line between abuse and neglect. Sometimes neglect can become excessive and reach the point of abuse. When we think of abuse, we think of someone hitting or physically abusing a person. Abuse is commonly an intentional act that causes harm and empowers another. Neglect may be an intentional, or an unintentional act, and may be based on several factors, such as the number of employees on duty, the facilities physical capability to take care of the number of patients that they are handling, or failure of equipment used to monitor a patient. The basic premise to neglect is that a person in the care of the nursing home fails to receive the necessary treatment or care that they deserve.

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 in DE and PA. Michael specializes in Insurance Defense and Criminal 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 DEIrish5@aol.com

Friday, August 23, 2002

little known court

The Foreign Intelligence Surveillance Court. I have never heard of it before today. I suppose there isn't much worth hearing about a court that only decides cases in the same way...always...no matter what. Well that changed. They have finally rejected an application by the jack-booted thugs, and they publicized it. Thank you.
new courthouse

Wednesday I took the self-guided tour through the new courthouse, to familiarize myself with the general lay-out of the building. Thursday I had my first hearing in the building. And so, I knew where to go. All is well.

Thursday while I was standing in the lobby waiting for my client, I noticed 5 firemen hanging out as well. I wasn't quite sure what they were doing and I figured that it wasn't my business anyway. But I did hear them explain their hanging out status to another fellow sporting a badge. They jokingly indicated that they were having their morning briefing.

It all became clear to me this morning when I read that since the sound of the fire alarms is so muffled by the sound reducing insulation in some of the administrative offices, they have hired 7 firemen to walk the halls until the modifications to the alarm system can be made.

What a cushy assignment.

Several of the rumors that I had heard about the new courthouse are wrong. I heard that there was no lobby seating area for the Family Court Courtrooms. I found the seating areas. They appeared to be adequate.

Overall, I like the new building. I look forward to the time when it is completed and all of the courts have settled in.
copyright bibliographical blog

There's a new blog in town on the subject of copyright called Current copyright readings. Its author, Claire Stewart, is keeping track of online articles dealing with copyright. Rather than much commentary on the content of the articles, she includes bibliographic details such as the author's name and place of publication. It's an interesting approach to a blog and she links to a number of articles I hadn't seen in my travails online, like a link to yesterday's Washington Post article, The Flute Case That Fell Apart: Ruling on Sampling Has Composers Rattled This could be a really terrific resource on issues like the Digital Millenium Copyright Act. (link via Tuffy Stone)

Thursday, August 22, 2002

trillion dollar lawsuits

I'm not certain I can even imagine that much money. The Christian Science Monitor says that the "amount of damages sought by victims of 9/11 attacks is unprecedented." The amount, which by clerical error was originally reported as 100 trillion dollars, is an effort by family members of victims to strike back economically at those they perceive as the sources of terrorism:
US law allows victims of terror attacks to recover from assets held in the US by foreign sponsors of terrorism identified by the State Department. Mr. Gerson says the trillion-dollar figure comes from multiplying the 3,000 victims in the Sept. 11 attacks by the average of $30 million recovered in such suits and then multiplying it by three as allowed under US law that provides for triple damages for terror victims.
That amount didn't remain unprecedented for long. On its heels comes another suit requesting almost twice as much, from a very different source. This action was filed by a California business man, and may achieve class action status:
In suits filed today in state and federal courts, software company owner Steve Kirsch and another plaintiff seek the damages provided by law, $500 for each unsolicited commercial fax over the last four years. If a judge certifies either suit as a nationwide class action on behalf of all recipients, the figure can be multiplied by 3 million, the number of faxes that the company boasts it sends each day, Kirsch said.

That comes to $2.2 trillion, even without invoking another section of the law that allows judges to triple damages for willful violations, Kirsch said.
When the damages are presented that way, it almost sounds reasonable. Counting the number of zeros in the equation's total brings it an almost surreal quality.
haymarket affair

Anarchy at an End. Lives, Trial and Conviction of the Eight Chicago Anarchists. How They Killed and What They Killed With. A History of the Most Deliberate Planned and Murderous Bomb Throwing of Ancient and Modern Times. The Eloquent and Stirring Speeches of the Attorneys for the Defense and Prosecution—with the Able Charge of Judge Gary to the Jury. Seven Dangling Nooses for the Dynamite FiendsSometime after the great fire, the population of Chicago increased at a tremendous rate in a very short period of time. The center of a surging industrial movement, many of the the City's new residents were immigrants, moving to blue collar jobs. A troubled economy in the early 1880s lead to widespread unemployment. In 1886, a nationwide railroad strike triggered a reaction in Chicago. One of the most infamous legal proceedings in America's history happened in Chicago in response. Labor protestors and police clashed in a violent confrontation after a home made grenade exploded, killing a number of police officers:
The unknown bomber's act resounded nationwide. Public opinion was instantly galvanized against the radical left, resulting in the first "Red Scare" in America. In a climate of political paranoia fueled by the popular press, the police arrested eight prominent Chicago anarchists and charged them with conspiracy to murder. The eight were tried before Judge Joseph E. Gary in the Circuit Court of Cook County. Although no evidence emerged to tie any of the men to the bombing, the jury returned a verdict of guilty after deliberating for less than three hours. The court sentenced Oscar Neebe to fifteen years in the penitentiary and the others to death by hanging.
The Library of Congress, the Chicago History Society, and Northwestern University have all played a part in putting online a great amount of information about the events leading to the case, the proceedings themselves, and their aftermath. Chicago Anarchists on Trial: Evidence from the Haymarket Affair displays a very large volume of photographs and documents, including many pages from the legal proceedings resulting from the death of the police officers from the grenade. The identity of the person who threw the grenade was never uncovered.

A fantastic presentation by the Chicago History Society and Northwestern University called The Dramas of Haymarket, provides an intriguing history of the events. Memories of Haymarket exist within Chicago, and labor protestors to this day. (image from the Dramas of Haymarket, Act Three -- Toils of the Law, The Court of Public Opinion)

Wednesday, August 21, 2002

state court records

How much information should be available to the public on civil and criminal cases in state courts? How much information can be accessed online, or in person at a state courthouse? Should there be different standards for civil and criminal cases? How much information about the individuals involved should be disclosed? This Nando Times article discusses a report issued by the Center for Democracy and Technology (CDT) earlier today. The Nando Times article remarks about some of the differences between particular states, and some of the unintended disclosures of information that can be discovered by the mere presences of cases --
All of these court records can have unintended consequences. Some courts delete obviously sensitive data like social security numbers, but one could also find bank account numbers as well as a person's name and address, information that could help an identity thief.

There's also information that is almost never sealed by definition, but could still be sensitive or embarrassing, like accusations of battling spouses in a divorce case or the names of biological parents in an adoption.

Victim's rights advocates have called for taking spousal abuse and family law cases off-line to respect the privacy of a battered wife or abused child. The wife's address, frequently found within court documents, could help a stalker.
The CDT's nationwide survey shows a very wide range of standards and views as to the types of information that is accessible to the public online or off:
CDT recently conducted a nationwide survey of the practices of state and local courts in making information public via the Internet. We found a wide variety of practices and policies. This is attributable partly to our federal system, under which state and local governments are the laboratories of democracy. But even taking federalism into account, the process of putting court records online has proceeded in remarkably disparate ways. Courts have made records available in many forms ranging from statewide services to many instances of single jurisdictions providing access to their records. Some states provide access to both criminal and civil records while others restrict users' access to records that may contain sensitive personal information. And while some states offer free comprehensive access to their court records, many others charge users a range of fees for online access.
The CDT also writes about an effort to try to develop some standards that all states could adopt, under a project funded by the State Justice Institute. While it looks as though a fair bit of effort has gone into this Model Policy on Public Access project, a quick look through it raised a few red flags in my mind. When I have a chance to read it more in depth, I'll try to address some of those issues. The latest newsletter (pdf) of the agency funding this project also caused me a bit of concern regarding its future. An opening headline reading "SJI Struggles to Survive" will do that.

Where does Delaware stand when it comes to sharing court records with the public, and how reliable does the CDT survey appear? The CDT's description of public availability to Delaware's court records looks pretty accurate. Note that there's not a mention of Family Court records -- disclosure of that court's information is very limited. I'd add that access to criminal and civil dockets for Superior Court and the Court of Common Pleas cases is available at the New Castle, Kent, and Sussex County Court Houses free of charge. As for the reliability of the information provided in the CDT survey, I recognized the email address provided with their information as that of the Chief Technology Director of Superior Court of the State of Delaware. I would call that a pretty good source.
just how much domestic spying is going on?

An expedited Freedom of Information Act request (pdf) was filed by the American Civil Liberties Union (ACLU) today, asking the Department of Justice a number of questions about the "pervasiveness of domestic spying." They were joined in making the request by the Electronic Privacy Information Center (EPIC) and the American Booksellers Foundation for Free Expression(ABFFE).

I think that this is an important request. It's information that we should know. As the ABFFE states in their June 21st update on their web site:
The Sensenbrenner/Conyers letter, asks Ashcroft questions about how the Justice Department is implementing 50 provisions of the PATRIOT Act, www.house.gov/judiciary/ashcroft061302.htm. With respect to the business records section of the act, it asks how many court orders have been issued to bookstores, libraries and newspapers. (Reporters' notes can also be subpoenaed under the PATRIOT Act even if they are protected by state "shield laws" designed to protect their confidentiality.) The letter also asks whether the Justice Department has put in place any safeguards like requiring supervisory approval before the records are sought or "requiring a determination that the information is essential to an investigation and could not be obtain through any other means."
There was a limited response from the DOJ to Congress from those 50 questions. It's possible that Congress will subpoena Attorney General Ashcroft if more answers aren't forthcoming by Labor Day weekend.

The types of information that the FOIA request is asking about includes how many times the government has:
Conducted "sneak and peek" searches, which allow law enforcement to enter people's homes and search their belongings without informing them until long after;

Directed a library, bookstore or newspaper to produce "tangible things," e.g, the titles of books an individual has purchased or borrowed or the identity of individuals who have purchased or borrowed certain books;

Authorized the use of devices to trace the telephone calls or e-mails of people who are not suspected of any crime;

Investigated American citizens and permanent legal residents and sought information on the basis of activities protected by the First Amendment (e.g., writing a letter to the editor or attending a rally).
I understand that it has to be difficult to conduct a domestic war on terrorism under a microscope. But I'm worried about living under a government that would refuse to answer those types of questions.

Tuesday, August 20, 2002

search engines respond to ftc

We've written a couple of previous entries about search engines. One, in January, on the "politics" of search engines included a quote which mentioned the benefits of a disclosure from search engines "of the underlying rules (or algorithms) governing indexing, searching, and prioritizing, stated in a way that is meaningful to the majority of Web users." Another, in June, focused upon a complaint filed by a consumer advocacy group with the FTC, asking for better disclosure from search engines.

On a number of the engines, it isn't always easy to tell which results were based upon relevance to a search performed, and which results were returned because the site's owners paid to have the results shown. The Federal Trade Commission responded to the complaint by sending a letter to a number of search engines asking them to make that distinction easier for their visitors to see and understand.

News.com has a followup, which looks at how the engines have responded. They also raise some other issues.
carding friends and customers

In the course of my work-day, I notarize many signatures. We among the Delaware Bar have been well warned by the Delaware Supreme Court that no short cuts are permitted in this notary process. You can't mail me something with your signature on it for me to notarize. Nor can I notarize a document that you just signed in the other room, even though you walk it in to me. The notary process requires that I actually see you put the ink on the page. That much is quite clear.

But who are you? How and when do I ask for identification, where do I store the copies of your driver's license? What type of identification is sufficient? Does it really matter if an identification card has expired? How long must I know a person before I can say that I really know who they are? I have friends that I have known all the way from kindergarten through law school, but I have never actually inspected their identification. Is it enough that I have gone through 20 years of school with them? I have been to their homes and had meals with their alleged families (after all, I haven't examined the birth certificates and identification of the parents). If that many years is enough, what about someone I have known for 10 years? Or 5? Or 2? Or 3 weeks? Or 3 Days? Where is the cutoff? At what point do I have to ask for identification? If I know someone for 15 years, but I only see them about once a year, is that better or different from someone I have seen every day for 2 weeks?

I am serious.

Monday, August 19, 2002

shareholder activism on the web

Web sites attacking corporate practices have been around almost as long as the web. This news article takes a short detour from its main story, and points to some sites where minority shareholders can use the web to try to gain more power over the direction of a corporation:
Nell Minow, co-founder of The Corporate Library, which focuses on the relationship between shareholders and corporate boards and management, sees the Internet as a way small shareholders can unify.

"There's lots of different kinds of activism other than the traditional filing of shareholder proposals," Minow said. But in the past, she said, "one obstacle to corporate oversight has been shareholders finding and communicating with each other. People certainly are using the Web in very innovative ways (to do that now). And I think you're going to be seeing a lot more of that."
Corporations are fictional legal entities, given certain rights by law. But, behind the fiction, behind the corporations are people, and there isn't always agreement amongst those people on the direction that a corporation follows.

The most publicized bit of recent corporate activism involved the HP and Compaq merger. As Walter Hewlett said:
At the very least, boards must be pried loose from the grip of management and their hired hands. Despite more than 200 years of political practice in the United States, democracy remains an ideology strangely alien to many corporate boardrooms. And too many corporate executives still fail to distinguish dissent from disloyalty...Above all, too many corporate managers too readily forget who owns the company--the shareholders.
Such action isn't always initiated by the heirs of founders of corporations. Environmental group Friends of the Earth have a page on some of the forms that socially oriented shareholder activism can take. Other groups have posted information on the web to help people use their positions as shareholders to effect change in a corporation, including the As You Sow Foundation, the Shareholder Action Network, and The Corporate Library.

The last group has a list of Shareholder Action Campaigns that can give you a good idea of the different types of complaints shareholders have, and the ways in which they are trying to make change happen. And, don't miss eRaider.com, where "If they won't take care of business, we will."
federal judges decry low wages

If I follow the logic of the argument, which I think I do, Federal District Judges' pay, adjusted for inflation has decreased since 1969. It started out as $40,000 , and is now $150,000 per year. When we compare this to the wage for a Harvard Law professor moving from $28,000 to $250,000 in that same time period we can see how poverty has struck the federal bench. When I look at the Census Bureau statistics, I can see what they mean [sic]. The average 1969 wage earner made $29,166 per year (in 2000 dollars) compared to the $40,290 that the average person earned in 2000. The article really brings it into focus by pointing out:
Now, $150,000 sounds like a lot of money to most Americans, and it is. But the real crunch comes for many judges when they have to send a couple of kids to college. Tuition is rising much faster than inflation, and $30,000 a year for each child comes right off the top of a paycheck. And, notes Breyer, “there are no scholarships for people who earn $150,000 a year.”
I can understand the statistics, and how we can twist them. I have kids and bills too. But no matter how many times I read the article, all I hear is let them eat cake.
foreign language ballots

Maybe it's time to stop calling them "foreign" language ballots, as the Seattle Post-Intelligencer does. That newspaper reports that four counties in Washington State have been ordered to provide voting materials and ballots in languages other than English. In Yakima, Franklin and Adams counties, Spanish materials are required, and in King County, Chinese.

The federal Voting Rights Act provides the impetus behind these additions, which aren't just limited to Washington.
Under the federal Voting Rights Act, foreign language ballots must be provided if the Census shows more than 10,000 people or more than 5 percent of the voting age population in a single language group don't speak English well.
A full list of the jurisdictions where non-English voting materials or oral language procedures are required is here from the Bureau of the Census. The Bureau also has a more detailed description of the requirements under Section 203 of the Voting Act.

As the Seattle paper notes, it's important that care and attention to detail goes into the translations:
In March, a sample primary ballot in Orange County, Calif., translated into Vietnamese, described the sheriff as a "low-level officer who examines dead bodies." A district attorney was described as a hamlet prosecutor while the county clerk-recorder was called an office secretary.
With the growth of the hispanic population in Delaware, especially Sussex County, perhaps Delaware should start considering the possibility of being required to have Spanish voting materials ready before they are required by the next census.
shopping in cuba

The first American brand food to be sold directly from the US to Cuba since 1961 arrived at Havana on Sunday:
The U.S. House of Representatives recently voted to lift restrictions on Americans traveling to Cuba and to allow U.S. financing of food sales to Havana, among other embargo weakening measures, with the Senate expected to adopt similar legislation later this year.
Forty-one years is a long time. I know that while there is a growing group of people willing to end the embargo, there are still those who want to see it continue. But, I can't see change happening, and improved relationships between the US and Cuba without an end to the trade barrier that's been in place for so long.

Sunday, August 18, 2002

asleep in the law library

I was setting out to blog in response to one of my several favorite blogs, Held In Contempt, more particularly her article about the liability of a lessor for the negligent accident of the lessee, when I got sidetracked. I was backtracing her links and trying to figure out why she didn't link directly to the case opinion, thinking all the while about describing a parallel argument successfully made in Delaware with respect to sovereign immunity not being waived by the state unless it goes out and buys insurance, when I finally tracked down the Opinion. Apparently the opinion was either scanned in backwards, or the pages were numbered backwards. Trying to figure it out bored me to distraction. It really drove home the essence of the article I stumbled upon in my search...about sleeping jurors and judges...and what you can or cannot do about it. I vote that it is the lawyers' job to keep the jurors awake, and the judge just has to look out after herself. Now if I can just find that darned voting box...

Saturday, August 17, 2002

jury duty

It's normally a good idea to treat courts with a modicum of respect when you receive a summons for jury duty. (via Camworld)
fetch fido

Is someone's dog reviewing applications for patents? I ask with sarcasm only because of this patent award for an "animal toy" that looks remarkably like a stick. (via a whole lotta nothing)
locks of love

Locks of Love is a non profit organization that was being discussed in the office on Friday, and deserves recognition and support. They help supply custom hairpieces to those under 18 who are financially disadvantaged, and suffering from long term medical hair loss. If you might be interested in donating hair, their question and answers section gives more details.

Friday, August 16, 2002

us agricultural department database

If you're interested in seeing exactly what that is on the end of your fork, and how nutritional it might be, The United States Department of Agriculture (USDA) can help. They have set up a database which allows you to check on the nutritional properties of 6220 foods, while online. I'll be checking this out come meal times. What other types of information should federal agencies be sharing with us over the web?
a quarter protest

The US Mint's 50 state quarter's program is a great idea. It's a chance to celebrate the history of our nation and to honor people and events on a state and national level. The Missouri coin won't be released for almost a year. However, a protest taking place in Missouri over design selection involves a unique form of spreading the word, and an early, but temporary, redesign of quarters already in circulation.
law school advice

I thought that Dahlia Lithwick's article, called Letter to a Young Law Student: Don't go to law school: But if you must, take my advice, was pretty good.

And don't miss the excellent a mad tea-party from Who Stole the Tarts, the site of a second year law student from Boston. In addition to being very well written advice to someone entering law school (I wish I had read it before my first year), the author also brings back many memories.

We've included some other law student sites in our weblog listing, and they will probably be joined by more in the near future.

Another erudite legal scholar and student is jca from Sua Sponte who organized the BlawgRing we recently added to our page, and who made a confession around a week ago to being originally from central New Jersey (like I am).

Our most recent student addition is Tuffy Stone who, upon ocassion, has contributed some great posts about intellectual property law at metafilter under a different name.

Not satisfied with just the law, the stantonblog adds economics and technology into the mix of subjects Larry Stanton, Jr., writes about on his site, and I enjoy his succinct and insightful views.

I'm looking forward to reading their blogs through their new school year, and I wish them all good luck in their classes.

Thursday, August 15, 2002

900 number crimes in Delaware

Despite the fact that the police and prosecutors have never heard of it, it is a crime in Delaware to tell someone that they have won a contest or such, and to collect their prize they must call a 900 number. The law is as follows:

11 Del. C. § 906. Deceptive business practices; class A misdemeanor.
A person is guilty of deceptive business practices when in the course of business the person knowingly or recklessly:
...
(7) Notifies any other person that the other person has won a prize, received an award or has been selected or is eligible to receive anything of value if the other person is required to respond through the use of a 900 service telephone number or similar service number.
...


I receive solicitations which are in violation of this law all the time. I have reported them to the police on dozens of occasions. The conversation with the 911 operator (they force you to use the 911 operator even if you don't believe it is an emergency) usually goes something like this:

Me: I am calling to report a crime of deceptive business practices.
Operator: What?
Me: I received a notice in the mail that says I won a contest and that I must call a 900 number to collect it. That is a crime.
Operator: What crime?
Me: It is a deceptive business practice under 11 Del. C. 906 (7)
Operator: I have never heard of that.
Me: would you like me to fax you a copy of the law?
Operator: No
Me: Well, I would like to make a criminal complaint.
Operator: I will have an officer contact you [muffled guffaw]

Once in a while an officer does call me, just because he is curious I suppose. I fax them the law and the offending literature and I never hear from them again. When I retire I may just make a career out of prosecuting these scoundrels....not.
how to stop sales calls ?

I have been scheming as to how I can avoid receiving the many unsolicited sales calls at my residence. This is my current plan. I will set up a 900 number at my home. All future requests for my telephone number will be given this new 900 number. I will undoubtedly have to close down my current number and get a new unlisted one for my family to use. This way, if a sales person really wants to call me in the middle of dinner it will be on his dime. I will be happy to say to them..."tell me all about your product, and I mean ALL about it".
al mascitti defends delaware

Another articulate (besides Bill Slawski) writer, Al Mascitti, read Jonathan Chait's road rage piece about Delaware's tolls, taxes, and temperment. Similarly, Fritz Schranck has a clarifying perspective. We all choose our own way to cheer on and support Delaware, or not. I am appreciative of Al, Bill and Fritz for doing so in their way. I can't think of anything so pleasant to say to Mr. Chait so I will keep silent, or not.
interview with riaa president

Recent addition to the web, Blogcritics, has the tagline A sinister cabal of the web's best writers on music, books and popular culture miscellanea - updated continuously. It appears that they are starting out pretty strong, with entries like Producers and Engineers Marching Together and an Interview With Cary Sherman, President of the RIAA. Agree or disagree with Cary Sherman, it's good to see him answering questions, and the interview gives us some insight into the record industry's views on recent legislation, fair use, space shifting, and archival copying. Nice job, Blogcritics.

Wednesday, August 14, 2002

race to the bottom

Late last night (or early this morning, depending upon your perspective) I wrote about a New Republic article written by Jonathan Chait for the cover story of August 19th's New Republic (link below). The article appeared to be a plea for President Bush to add Delaware to the "axis of evil."

I had considered working my way through Chait's article, pointing out places where his work might have been helped by a fact checker, however, Delaware's blogging deputy attorney general, and representative of the Delaware Department of Transportation, Fritz Schrank, had enough of the facts at his fingertips to do that eloquently and efficiently. But our Sneaking Suspicions author really only addressed the issues Jonathan Chait raised regarding Delaware's revenues from tolls.

Rather than attack Mr. Chait, I'd rather point to a couple of positive writings about Delaware by other authors. The first, by the Honorable William T. Quillen and Michael Hanrahan is A Short History of the Delaware Court of Chancery--1792-1992.

I suspect that if Mr. Chait had the pleasure of meeting William T. Quillen, and spending some time with him, he might come away with a completely different impression of Delaware. A former Secretary of State, Superior Court Judge (twice), Chancellor of Chancery Court, and Delaware Supreme Court Justice; he is one of Delaware's most liked and respected citizens. When you read that the selection of judicial officers for Chancery Court is based upon merit, it's one thing. When you meet a former Chancellor like William Quillen, you understand what the word "merit" actually means. And, his History of the Delaware Court of Chancery reflects an understanding that there are people who might misunderstand Delaware's role as an often favored place for people to create corporations:
After years of effort, a new Constitution was promulgated by a Constitutional Convention in 1897. The Constitution of 1897 eliminated the time honored and highly political process of creating corporations by special legislative act and provided for incorporation only under general law.(48) Pursuant to this constitutional provision, a new general corporation law was enacted in 1899.(49) The new law took full advantage of liberal enabling breadth offered by the Constitution: perpetual corporate existence and broadly stated general powers became the corporate norms. In essence, Delaware law recognized that the American corporation had been largely transformed to a decidedly free wheeling, private enterprise mode; it had lost its original prime character as a state instrument for public improvement. Indeed, the passage of the law itself was generally attributed to the prospect of a new private enterprise, the corporation service company.(50) The business and legal change was not lost upon commentators and, in an inkling of things to come, Delaware was promptly criticized as a "little community of truck-farmers and clam-diggers ... determined to get her little, tiny, sweet, round, baby hand into the grab-bag of sweet things before it is too late."(51) Thus, even as the starter's gun went off, Delaware was already being accused of participating in a "race to the bottom."
A number of commentators have accused Delaware of such a race to the bottom. In that, Jonathan Chait was echoing the words of others.

But, is there a race to the bottom? Is that too simplistic an approach to take? Here's another view:
Although some EC company lawyers have supported harmonisation precisely in order to avoid a Delaware style "race to the bottom", the idea that Delaware law represents a lowest common denominator has been challenged by accounts which argue that any attempt by managers to downgrade shareholder interests would, over time, lead to a hostile response by the capital markets. Managers therefore have an incentive to incorporate under the law of a state which favour shareholder interests since "[s]tates that enact laws that are harmful to investors will cause entrepreneurs to incorporate elsewhere". If this is the case, "Delaware attracts incorporations not because its laws are lax, but because they are efficient". Thus, some commentators argue that Delaware has so perfected the art of matching its laws to the demands of the users of those laws that it has won the race to the top. In general, while the claim that Delaware company law is efficient remains much disputed, it is generally agreed that regulatory competition need not, necessarily, imply a degradation of standards.
As for Mr. Chait's statements that Enron, and other corporations may have chosen Delaware as a place to create companies for seemingly fraudulent purposes, I'm compelled to point out that Delaware requires, at the very least, a statement in a corporation's certificate of formation that it is being created for "any lawful act or activity under which corporations may be organized under the General Corporation Law of Delaware." (Title 8, section 102) As we know from 1913 case law in Delaware (Martin v. D.B. Martin Co., 10 Del.Ch. 211, 88 A. 612):
The fiction of a legal corporate entity should be ignored when it has been used as a shield for fradulent or other illegal acts.
Regardless, I believe that if Mr. Chait had the chance to visit more than just Delaware's interstate, he might come away with a different feeling about Delaware.

Though, I'm beginning to wonder if Mr. Chait even travelled down Delaware's interstate to begin with. He stated that he had to pay a toll upon entering Delaware. He then complains about having to pay a three dollar toll to cross over the Delaware Memorial Bridge into New Jersey.
And even after you've crawled through their turnpike and handed them your toll, the citizens of Delaware still haven't finished with you. There's still a $3 fare for the Delaware Memorial Bridge, which is run jointly by Delaware and New Jersey and whose proceeds--which far outstrip the bridge's maintenance costs--benefit both states about equally.
The fare is three dollars. That's true. But, it's not imposed when travelling from Delaware to New Jersey. The toll only applies on the trip from New Jersey to Delaware. (And, yes, there are problems with the federally authorized agency that administrates the tolls across the river. Prosecutors and other investigators are looking at those carefully)

The more I think about the article written by Jonathan Chait the more I realize that perhaps I should stop here, ending this particular race to the bottom.
fear of fear itself

A frighteningly true glimpse into the mental state of attorneys, what we are stressed about (everything), and why. Wouldn't it be nice to be a drone?
sex.com

The owner of the web site sex.com lost the site when fraudulent tactics were used to transfer the site's name. A lawsuit awarded $65 million to the original owner. The appeal in the sex.com case is looking at the role that Verisign might have had when the domain's name was illegally taken. The case had included an action against Verisign, which was dismissed, with the judge "saying the company had no legal responsibility to screen all the transactions for fraud."
new republic kicks delaware hard

New Republic author Jonathan Chait doesn't seem to like Delaware much. Calling it the "enemy within," he fills the August 19th cover story of the New Republic with vitriolic musings over the history and practices of the First State. From the "contents" page of the New Republic's site:
Rogue State by Jonathan Chait
From its rapacious toll-collecting to its bottom-feeding corporate laws to its disreputable past, Delaware consistently undermines the national interest for its own selfish ends. A guide to America's enemy within.
I guess you're on to us Jonathan. And we had such hopes of taking over the rest of the nation.

Tuesday, August 13, 2002

aba's new president elect

Congratulations Dennis Archer.
Dennis Archer, a past Michigan Supreme Court justice and two-term mayor of Detroit, was elevated to president-elect of the 408,000-member association. He pledged to emphasize diversity in the group, which is still mainly white 60 years after a ban on black members was lifted.
Mr. Archer will take over as President of the organization in 2003.
domain names

According to this article, domain names have become a buyers market. That's good to hear. A friend and I have been brainstorming for a name for a business that he wants to start, for the last month or so. He's come up with a number of names, and given up on many of those. Finding a name for a company is not an easy thing to do. I've convinced him that a business name should avoid being too generic and should be easy for people to remember. If the name isn't hard to spell, that's a plus also. A name can give someone a sense of the type of services that the company performs, or give them a certain impression about the business.

We've been checking with the Delaware Division of Corporations, and looking at the US Patent and Trademark Office, to try to avoid using some other company's name. We've also been looking at the availability of a domain name. I offered one suggestion, and checked to see if the domain name was available. It was taken, but on the site's front page was an offer to sell the name for $25,000.00!

So, it's good to hear that domain name speculators are finding other targets, and the possibility of having to pay a sum like that for a small business may be getting less and less everyday. The Anticybersquatting Consumer Protection Act has helped to reduce the demand for domain names, and people are letting names lapse without renewal. My friend is hoping to spend around $15.00 to $30.00 for his domain name. We're both hoping that Brad Templeton was indeed joking when he came up with the name for www.all-the-other-names-were-taken.com.

Monday, August 12, 2002

becoming a dinosaur hunter

Walking-talking billboards. That's what Acclaim Entertainment envisions in their latest marketing scheme. Five people willing to legally change every form of identity they possess for one year in exchange for a game console, a large supply of video games, and 785 dollars. And, of course, the notoriety of being "Turock, the Dinosaur Hunter."

The "tagline" of the official My Name is Turok web site is "Your identity is your most valuable asset -- spend it wisely." More on identity marketing from Acclaim Entertainment. I hope that this type of marketing doesn't become a common practice.
eldercare awareness conference

I've been watching the local newspaper, the Wilmington News Journal become slowly used to the fact that they have a web site. Yesterday's hard copy sports section mentioned that the Phillies game ended too late for the paper to carry the final Phillies' score, and that people should visit the paper's website for "complete" coverage. I hadn't seen them do that before.

They have also been starting to include links to other sites in sidebars on the web site. I've noticed links to pages within their own site, but it seemed to me that they were hesitant about including links that would take people off their pages. It seems like the idea has begun to sink in that people will return if they offer good quality information and updated material.

A feature in today's News Journal is about when parents move in with their grown children. The focus of the article is to let us know that an eldercare awareness conference for caregivers, and their employers will be held at on November 6th, at the Hotel Dupont, 11th and Market Streets. The list of speakers and topics looks interesting. The conference is not just for caregivers. It's also aimed at human resource personnel and business policy makers.

Like I said, this is one of the first articles where I noticed the paper actively pointing towards a web site outside of their own pages. They also provide a number of links to other "resources for caregivers" outside of the delawareonline.com domain.

Saturday, August 10, 2002

inventor's blog

Freedom to Tinker (via bOing bOing) is a blog by a Princeton Professor who writes about technology, and the "freedom to understand, discuss, repair, and modify the technological devices you own." Seeing legal issues involving technology from a "tinkerer's" perspective is an excellent opportunity to understand the impact that much recent legislation may have. I'll be back visiting this site when some new legislation relating to technology rears its head.

broken hearts and crushes

Ever receive an email telling you that someone has a crush on you? Was the message from a web site that allows people to share that type of information, and acts as an intermediary like you might remember from your days in middle school? Did the note remind you of spam? The Alternet article The Bot Who Loved Me looks into a couple of services that provide that type of notice, a potential lawsuit against such services, and the identity of people behind a couple of "crush" sharing sites. Spam-generators or matchmakers -- the jury is out. I usually trash these when I see them in my inbox. I guess I've seen too much spam to believe that these messages are anything else.

death penalty in delaware

A few weeks ago, a capital case in Delaware was put on hold while the impact of the Arizona v. Ring case could be gauged by the Delaware Supreme Court. Going through the local paper the other morning, the news was that another case had been halted while the Court considers the US Supreme Court ruling.

The State Supreme Court is reviewing Delaware's new death penalty statute, and the constitutionality of a number of death penalty cases on appeal. There are presently 20 capital murder cases in Delaware that are pending trial. The decision of the State's highest Court will influence the procedures to be followed in those cases. I expect that over the next few weeks, we'll see more of those capital cases reported as being put on hold while the Court considers how they should go forth.

closing of a courthouse

A ceremony on the steps of the Daniel Herrmann Courthouse yesterday afternoon was well attended by members of the bench and bar, active and retired; by Delaware's Governor and the Mayor of Wilmington; and by court house staff.

On a hot afternoon, promises to keep speeches short were broken as fond memories and stories of professional lives realized within the court house were shared in front of the columns of the Public Building. The place has meant a great amount to the people of Delaware, and to the legal community. It will be missed.

constitutional uses and abuses

The July edition of Common-Place.org is a special issue on the constitution which includes a section on Uses and Abuses of the Constitution:
This roundtable discussion is intended to help us all reckon with our rhetoric and remedy our indifference. In eight paired essays, historians, political scientists, journalists, and lawyers examine the uses and abuses of the Constitution in contemporary American political affairs, from Bush v. Gore to the The Clinton Impeachment.
The remainder of the articles in the July edition are also worth a good gander, such as the one entitled The Common School about high schoolers debating the meaning of the constitution, and the We The People competition.

employee abuse prevention act of 2002

Does the location of a corporation's filing of bankruptcy impact upon the representation of employees and retirees?
A provision of the Employee Abuse Prevention Act of 2002, introduced last week by Sen. Dick Durbin, D-Ill., and Rep. William Delahunt, D-Mass., would prevent companies incorporated in Delaware from filing for bankruptcy in the state if they don't have their headquarters or principle assets here. The aim is to make bankruptcy proceedings accessible to more workers and retirees.
Now, there are a large number of businesses incorporated in Delaware that have their headquarters or principal place of business located elsewhere. Delaware is a popular choice as a place for many companies to go through bankruptcy proceedings. Is an argument that it was chosen as a location because it would be more difficult for employees and retirees to have representation in such a proceeding a valid one?

The reason for the legislative package itself is something that may find little argument amongst legislators:
"The backdrop here is that we have had a number of high-profile cases where officers have looted the company and employees have little power in bankruptcy right now to try and recoup losses when officers have pillaged their savings and retirement earnings," said Travis Plunkett of Consumer Federation of America. "It is important for employees to have the option to participate in a bankruptcy proceeding."
But, is the venue of such a proceeding important? Is it possible that the venue provision can be severed from the remainder of the bill, and the Act can still protect those people being harmed?

Here is the House version of the bill (H.R. 5221) and the Senate version (S. 2798). Both have been referred to the committes on the judciary for each.

For those in Delaware concerned about whether or not the venue of a bankruptcy filing will be limited to the principal place of business, and no longer permitted to be filed in the state of incorporation, these committees will probably give that issue a considerable amount of scrutiny.

non profits and the internet

First Monday has an essay called The Potential of the Internet for Non Profit Organizations that is worth reading if you are involved in such a group, or if you have web skills that might help a non profit organization, and you are interested in volunteering the use of some of those skills.
Non-profits can draw on the experiences of other organizations and consider online volunteer management, discussion forums, information-rich Web sites, innovative fund-raising, online advocacy and tailored information distribution, to develop an Internet strategy that reflects their needs and resources.

The process requires an understanding of the organization's overall aims and objectives, the target audiences and the needs and focus of the interest or 'stakeholders' in the organization. The Internet offers new and powerful ways to communicate with this supporter community, other organizations and the public at large. However, it is important that the strategy not only focuses on the goals of the organization but also on its biggest asset - their community of members, volunteers and donors.
So, for instance, if one of my favorite local non profit organizations wanted to take better advantage of the internet, they should look such things as a message forum for volunteers, web cams for some of their flight cages, a blog that lists daily going ons at their facility, and a way to communicate some of their findings with others who research wildlife.

Friday, August 09, 2002

attorney at law

Why do we say it that way? Are we just trying to distinguish members of the bar from those persons who have been appointed by a power of attorney?

The language of a power of attorney often confuses my clients, by the way. They read it and say to me: "why am I giving you this power, Larry, this is all wrong. It says my "attorney" has the power to do [this and that] ...". I explain to them that in a Power of Attorney document, the "attorney" that it refers to is the person that the client appoints to handle their affairs, not to me.

Why don't we just call ourselves lawyers to avoid the whole confusion? Or, if we have to make a phrase out of it, let's make a phrase that has a more intelligible meaning in modern times such as: Attorney for Law; Attorney by Law; Attorney through Law; or Attorney Despite the Law. Attorney at Law sounds like we are just hanging out at the law. It doesn't give me the impression that there is any action going on. I haven't been to work one day in my career when there wasn't a lot of action going on, even if I had to make some up.

Now, the phrase "members of the bar" that I see in my first sentence, there is a phrase with some meaning and action.

Bill (correctly) encourages me to insert links to references on the net to support my blog entries. Well I began my search this morning with a search on Google. The immediate response was: "Results 1 - 10 of about 303,000. Search took 0.40 seconds". Well there is just not enough coffee in this member of the bar to overcome last nights actions and enable me to go through these "about 303,000" entries to supplement my Friday morning incoherent ramblings. Those of you looking for more scholarly research this morning will just have to move on.

future law on tv

A legal drama set 50 years in the future is in the process of being developed. It sounds like there is some serious interest amongst the major TV networks for the show. After seeing Minority Report earlier this year, I can envision what might come of this. It does have an intriguing sound about it.

Thursday, August 08, 2002

microsoft settles with the ftc

A settlement was reached today between Microsoft and the FTC involving statements made by the company about security and their Passport Single Sign-In, Passport "Wallet", and Kids Passport programs. The complaint does a good job of enumerating the problems with representations made describing those systems.

The consumers' groups that were instrumental in bringing this action forward include:

Center for Digital Democracy,
Center for Media Education,
Computer Professionals for Social Responsibility,
Consumer Action,
Consumer Federation of America,
Consumer Task Force for Automotive Issues,
Electronic Frontier Foundation,
Junkbusters Corporation,
Media Access Project,
NetAction,
Privacy Rights Clearinghouse, and
U.S. PIRG.

Most of these groups are fighting many other battles. It's worth a visit to their sites to see where and how else they are involved.

new guinness records book category?

A fine under the Telephone Consumer Protection Act in the amount of 5.4 million dollars is the largest ever. It's also the first against a company referred to as a "fax broadcaster," and involves 489 violations of the Act. The Electronic Privacy Information Center (EPIC) has a page entitled Telemarketing and the Telephone Consumer Protection Act (TCPA), which has more on the Act:
The TCPA of 1991 specifically prohibited the sending of unsolicited chimerical fax messages ("junk faxes") to someone without first obtaining their consent. Additionally, all commercial fax messages sent must include accurate information on the time and date they were sent, and the phone number of the sending fax machine.
They also include links to a number of sites dedicated to informing the public about junkfaxes.

george bush's energy policy act, and the agencies that won't follow it

This caught my attention:
Almost every cabinet level agency in the federal government has violated the Energy Policy Act of 1992 by failing to buy or lease the legally required percentages of alternative fuel vehicles for their federal fleets, a judge ruled Wednesday. The ruling could force 15 federal agencies to step up purchases of vehicles powered by fuel cells, natural gas, biodiesel, and other alternative fuels.
OK, if you noted the date of the act, you realized that the law was from George the elder. This alternate vehicle law makes sense, and is one of the smartest things that George the younger could do right now. These agencies shouldn't pursue compliance with this law grudgingly. They should do it with gusto.