Wednesday, March 31, 2004

Copyright or Mousetrap?

Who would have suspected 60 or 70 years ago that Mickey Mouse would be a key figure in legal battles over copyright?

In the 1970s, a group of underground comic artists tried to use Mickey's image to make some points about society. A book about that struggle looks pretty interesting. A review of it is in the Village Voice. See: Mouse Trap by R.C. Baker

17 Million Gallons of Oil under NYC

We're about to see a lawsuit filed sometime within the next month or so to get Exxon to clean up an oil spill that dumped an estimated six million more gallons of oil than the Exxon Valdez.

It's been starting to seep into New York City's habor. The spill probably happened in the late forties. The Village Voice discuss it in The Other Black Sea

Sharing is good

Or at least it isn't the cause of the decline of CD sales according to a recently released study (pdf) from Harvard Business School and UNC Chapel Hill.

What brings you to a Museum?

Given the popularity of shows on television such as the Antique Roadshow, I would imagine that Delaware's Museums would be doing very well indeed. Especially Winterthur, which specializes in American Decorative arts. But, the Wilmington News Journal has an article on our Historical treasures struggling. I'm thinking that they have no idea who they want to attract, and how to get them to visit.

Tuesday, March 30, 2004

critical consumer mass

Living in a small state has its advantages and its disadvantages. One of the shortcomings is that we don't always have the variety of consumer choices that someone living in a large city such as New York or Philadelphia might have.

True, those cities are between an hour to three hours away from most folks who live in Delaware. Baltimore and the District of Columbia aren't too far south either. But, I'm talking about stores in Delaware itself. The local grocery, or even the local package store.

The World Wide Web is enabling us to purchase things that we might otherwise not be able to find. A friend recently suggested a CD by a local band. Local to him, in New Zealand. I couldn't find it at any of the five Delaware music stores I visited, but it took me five minutes to order it online, and two weeks to have it delivered.

One very strong concern in the State is the sale of alcoholic beverages directly to consumers on the web. There's a legitimate fear that minors might purchase those, and circumvent an age verification system such as the showing of a drivers license when buying at a local liquor store. So, do we ban that type of sale competely, or do we find a way to make direct sales to consumers work? The Wilmington News Journal address the issue in an article entitled Delaware decries move to loosen liquor sales.

The article seems to slant towards favoring the "three tier system" that sees alcoholic beverages relying upon the movement of a beverage from manufacturer to wholesaler to retailer, and then to consumer. But, no one seems to be asking how to make direct sales to consumers work. As a consumer living in Delaware, I know how difficult it can be to gain the same freedom of choice in a store as I do on the web. We should be looking for more creative solutions.

One solution that we can't use is credit cards as an age verification system. Teenagers can vote, drive, get drafted, get married, and exercise many other responsibilities under our laws and constitution, but they can't drink until they are twenty-one. One other thing they can do is get a credit card. One of the more frightening quotes in the article didn't have anything to do with underage drinking.
In one test conducted by wholesalers, a 15-year-old with his own credit card reportedly ordered and received tequila, according to the Wine and Spirits Wholesalers of America.
What is a fifteen-year-old doing with a credit card?

This issue is about alcohol, but it's also likely about the regulation of any goods across geographic borders. The web opens many opportunities to us. We have a responsibility to think about them wisely.

Saturday, March 27, 2004

A National Park in Delaware? It could Happen

I've hearnd rumors of this idea, but I actually didn't think too much of it at first. I wasn't sure that it would really make that much difference to have a National Park in Delaware. I understand that Delaware is the only state without one, but does the distinction of being called a "national park" really make much difference? Maybe it does. I say that after reading Will Delaware Get a National Park?

While my first choice would probably be Fort Delaware, an underwater marine park off Cape Henlopen would also be great.

Closing Delaware Bars

An interesting tidbit that seems to have quietly escaped much attention in New Castle county was a report that some serious consideration was being given to having Delaware Bars stay open later to allow them to compete with Ocean City Bars. A later closing time might not be a bad idea.

Tuesday, March 23, 2004

Delaware Gets Top Corporate Rating

I am republishing this article from The Review, because it is a partial answer to a question we receive every day.... Why Delaware? As a Delaware Lawyer I try to answer in a few sentences what has taken generations to develop, a system of efficient and predictable business laws and the Chancery Court to apply them in a uniform and predictable way. While the quotes of me from this reporter aren't perfect, they are close.

As reported in The Review, by Stephen Mangat, on March 19, 2004 at page A2:

For the third year in a row, corporate attorneys rated Delaware as the most fair and reasonable state in which to do business litigation, but the recent wave of corporate scandals are having their impact on the business-friendly court system.

A survey released last week by the U.S. Chamber of Commerce polled more than 1,400 corporate attorneys on issues regarding class actions, punitive damages, timeliness of decisions on judgment and motions to dismiss, competence and impartiality of judges and jury fairness.

Delaware ranked first in all categories other than jury predictability and jury fairness, in which the state ranked third.

Larry Sullivan, a Newark corporate attorney, said there are several factors as to why Delaware has the best business courts.

"Because Delaware is a small state, the courts are not overburdened," he said. "Second, Delaware's Chancery Court is specialized in business and corporate law, and most of the Delaware Supreme Court justices come from the Chancery Court, so the judges know business law very well."

"Finally, Delaware’s law itself is fairly streamlined, which makes the courts more predictable; and predictability is a huge factor in litigation because litigation, by nature, is a big risk."

Sean McBride, vice president of communications for the U.S. Institute for Legal Reform, said Delaware’s high ranking gives the state an advantage over the lower-ranked states in attracting investments.

"Businesses tend to be interested in building and expanding in states whose courts have a fair and just environment," he said. "They then to factor in the ability to expand and grow when they choose where to incorporate."

Sam Glasscock, Master in Chancery for the Delaware Chancery Court, said companies incorporate in Delaware because of the business-friendly atmosphere of the court system.

The judges have unparalleled expertise and a cast amount of legal precedent, he said, which accounts for the predictability.

The state used to take a laissez-faire approach to businesses, placing faith in the hands of directors to act reasonably and in good faith.

However, recent scandals have caused the courts to look more closely at the way business is done.

Sullivan said there is a heightened sense of awareness and sensitivity in the court system.

"For company executives and directors, there is definitely a higher level of scrutiny, not a huge difference, but a measurable one," he said.

The new approach taken by the courts could affect the numbers of companies that base themselves in Delaware, but skeptics believe Delaware’s reliance on taxes and fees generated by companies incorporated in the state will make the change in behavior only temporary.

Sullivan said that although all branches of government operate on a budget, the judicial branch is not affected by the concerns of the legislative and executive branches.

"The judicial branch is fiercely independent. Delaware courts in particular are very independent," he said. "I don’t anticipate any consideration by chancellors and judges for any budgetary concerns."

Thursday, March 18, 2004

Dahlia Lithwick's commentary in the recent Bill introduced to allow Congress to veto Supreme Court decisions is pretty good.

Tuesday, March 16, 2004

Delaware Supreme Court Oral Arguments Online

In a brave new move, the Delaware Supreme Court has posted a website where we can all hear recordings of the oral arguments before the Court. This is an extraordinary opportunity for those who have not witnessed a Supreme Court hearing, and for those of us who have. This will help many to understand what we mean when we say that the Delaware Supreme Court is a "hot" Court. Note how the Justices are already prepared and informed about the cases, and how they will frequently interject with questions to the presenting attorney. They are not asleep at the wheel.

Sunday, March 14, 2004

Reversing the Supreme Court?

An interesting bill was referred to the House Committee on the Judiciary on March 9th. H.R.3920 is the Congressional Accountability for Judicial Activism Act of 2004. It makes it easier to handle those Supreme Court decisions that Congress doesn't like much. I'm not sure that I really like this one:
HR 3920 IH


2d Session

H. R. 3920
To allow Congress to reverse the judgments of the United States Supreme Court.


March 9, 2004
Mr. LEWIS of Kentucky (for himself, Mr. DEMINT, Mr. EVERETT, Mr. POMBO, Mr. COBLE, Mr. COLLINS, Mr. GOODE, Mr. PITTS, Mr. FRANKS of Arizona, Mr. HEFLEY, Mr. DOOLITTLE, and Mr. KINGSTON) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Rules, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

To allow Congress to reverse the judgments of the United States Supreme Court.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


This Act may be cited as the `Congressional Accountability for Judicial Activism Act of 2004'.


The Congress may, if two thirds of each House agree, reverse a judgment of the United States Supreme Court--

(1) if that judgment is handed down after the date of the enactment of this Act; and

(2) to the extent that judgment concerns the constitutionality of an Act of Congress.


The procedure for reversing a judgment under section 2 shall be, as near as may be and consistent with the authority of each House of Congress to adopt its own rules of proceeding, the same as that used for considering whether or not to override a veto of legislation by the President.


This Act is enacted pursuant to the power of Congress under article III, section 2, of the Constitution of the United States.
I can see this Bill passing and the Supreme Court deciding that the law is unconstitutional, and the Congress overturning that decision, and the Supreme Court finding that unconstitutional, and Congress overturning that, and so on. Actually, I can't.

Delaware to get more judges?

Delaware's Chief Justice Norman Veasey gave his last State of the Judiciary address (pdf) to the Delaware Joint Finance Committee during budget hearings for fiscal year 2005, on February 24th. One of the issues that he raised in his speech was that the State could use more judicial officers.

An article in today's Wilmington News Journal shows some strong support for that position: Sussex JP court caseloads a problem. The number of cases filed in the Sussex County Justice of the Peace Courts in the last twenty-five years have tripled without any increase in the number magistrates to hear the cases.

Delaware does well in a couple of National Rankings

Earlier this month, we discovered that the Frasier Institute named Delaware number one in Economic Freedom amongst US States and Canadian Provinces. See: Marginal Revolution: Economic freedom in North America (via Professor Bainbridge)

For the third year in a row. the Harris pollsters and the Institute for Legal Reform have named Delaware's Court system number one in the country. The Institute is part of the United States Chamber of Commerce.

I'm convinced that reasons behind those choices are related.

Friday, March 12, 2004

History of the law

Three were indicted this day, back in 1730, for the murder of John Fox.

The record is part of The Proceedings of the Old Bailey, which includes "accounts of over 100,000 criminal trials held at London's central criminal court." It covers the time between 1674 and 1834. Some fascinating stuff there.

Wednesday, March 10, 2004

Veterans' History Project

I'm looking forward to hearing some of the tales told by WWII veterans as part of the Veteran's History Project.

If you know someone who might consider being interviewed for the project, there are links on that page to people and places that can help you make that happen.

Saturday, March 06, 2004

Wee the People - a little proposal to change jurisdiction of the Courts

How much power does Congress have over the jurisdiction of the federal courts?

Do they have the ability to tell the Courts not to adjudicate legal claims involving state or local laws, policies and regulations involving the "free exercise or establishment of religion" or based upon the "right of privacy", or equal protection issues involving rights to marry regardless of sex or sexual orientation?

Should federal judges be impeached for handling claims of those types?

From the We the People Act, introduced into the House of Representatives on March 4th:
The Supreme Court of the United States and each Federal court--

(1) shall not adjudicate--

(A) any claim involving the laws, regulations, or policies of any State or unit of local government relating to the free exercise or establishment of religion;

(B) any claim based upon the right of privacy, including any such claim related to any issue of sexual practices, orientation, or reproduction; or

(C) any claim based upon equal protection of the laws to the extent such claim is based upon the right to marry without regard to sex or sexual orientation; and

(2) shall not rely on any judicial decision involving any issue referred to in paragraph (1).
Congress does indeed have the power to determine jurisdiction for the courts, though there may be some limitations to that power when it comes to issues under the constitution. The truth is that federal judicial jurisdiction is a complex subject. I'm not sure that you can frame and limit it as simply as the proposed legislation does.

A nice introduction to the powers and jurisdiction of the Federal Courts is a guide from the Administrative Office of the U.S. Courts called Understanding the Federal Courts. It doesn't get into complicated issues invoving congressional oversight of judicial activities.

The American Judicature Society has a brief discussion online about the power of Congress to change the jurisdiction of the Federal Courts. Here's a snippet from that page:
When Congress uses its power to determine jurisdiction it is often attempting to change constitutional law without complying with the procedural rules for amending the constitution. Since constitutional amendments are difficult to get passed, Congress will often attempt to alter court decisions by changing jurisdiction. Congressional attempts to circumvent the established means of registering dissatisfaction with the courts do not effectively remove the offensive ruling
Another interesting article on the subject of the stripping of jusridiction from the Courts looks at how such a limitation of jurisidiction might limit the ability of the Supreme Court to supervise other federal courts. See: Jurisdiction-Stripping and the Supreme Court's Power to Supervise Inferior Tribunals.

How much power does the Congress have over federal jurisdiction of the Courts? How much of the Courts power is granted directly through the constitution, and possibly limited in its ability to be curtailed by Congress? How effective is the type of legislation proposed, and how likely is it that it will move from proposal to law?

A birthday party for Republicans?

I'm a little surprised to discover that I share my birthday with the Republican party. On March 20th, the Ripon Area Chamber of Commerce will gather at a Little White Schoolhouse and celebrate the 150th anniversary of the first meeting of the Republican party. I'd share some cake with all of you Republicans out there, but there are just too many of you.

I wonder if George Bush will accept his invitation to speak at Ripon.

Friday, March 05, 2004

Electronic voting must read

There's been a considerable amount of controversy and dismay over electronic voting machines. So, what happens when a well known critic decides to get a closer look at the whole process?

I like the idea of getting a closer look before I discount something as bad or harmful.

Definitely recommended reading, from computer science professor Avi Rubin: My day as an election judge

Wednesday, March 03, 2004

Drugs, Reporting Requirements, and Internet Pharmacies

The federal government wants to know if you're on drugs.

Well, they want States to monitor people's prescription drug usage, and to maintain databases of information that can be shared with officials from other states, and with the federal government.

That's the first part of a proposed bill (pdf) before the House of Representatives.

It also imposes a number of reporting requirements upon internet pharmacies.

Amongst a number of other provisions involving with interstate pharmacies, it also looks as though the bill would allow the government to demand that someone linking to an "illegal Internet pharmacy" remove the link:
(c) LINKS TO ILLEGAL INTERNET PHARMACY.?Section 302 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 332) is amended by adding at the end the following:

(c) In the case of a violation of section 503B relating to an illegal Internet pharmacy, the district courts of the United States and the United States courts of the Territories shall have jurisdiction to order a provider of an interactive computer service to remove, or disable access to, a site violating such section, or a link to a site violating such section, that resides on a computer server that such
provider controls or operates. Such relief shall

(1) be available only after provision to the provider of notice and an opportunity to appear;

(2) not impose any obligation on the provider to monitor its service or to affirmatively seek facts indicating activity violating section 503B;

(3) specify the provider to which the relief applies; and

(4) specifically identify the location of the site or link to be removed, or to which access is to be disabled.

Home Schooling and Law and Order

The President of the Home School Legal Defense Association (HSLDA) sent a letter yesterday to Dick Wolf, Executive Producer of the three Law and Order series about an episode of one of the shows in which home schools were "shown" to be a "haven for abuse".

The media does often shape our opinions of practices such as home schooling. How do we distinquish between fact and fantasy, especially when advertisements about each of the Law and Order's tell us that their storylines are "ripped from the headlines."

Interesting letter. What would you ask Mr. Wolf if you were the President of that organization?

Monday, March 01, 2004

Martin Luther King, Jr., Coins

Will 2009 bring us Martin Luther King, Jr., dollar coins? It's a possibility. It would be a great way to celebrate the 80th anniversary of his birth.

Spy Block Act Introduced

Last Friday, the US Senate saw the introduction of the Spy Block Act. I'm not sure that I like the name.

SPYBLOCK = Software Principles Yielding Better Levels of Consumer Knowledge Act

The bill intends to prohibit the malware and spyware that has been finding its way on computers over the net.

Can we legislate these problem programs away? I'm not sure.

While I applaud the intention, I was worried about the potential burden upon the manufacturers of legitimate and helpful software offered by many people, often for free, and the extra burden that this might place upon them. I don't think it will affect most freeware programs. Most of the provisions are aimed at parts of programs that collect information, and supply advertisements.

Will the law pass? Who knows?

Here are the notice, consent, and uninstall requirements under the bill:

(a) NOTICE- For purposes of section 2(a)(1), notice to the user of a computer shall--

(1) include a clear notification, displayed on the screen until the user either grants or denies consent to installation, of the name and general nature of the computer software that will be installed if the user grants consent; and

(2) include a separate disclosure, with respect to each information collection, advertising, distributed computing, and settings modification feature contained in the computer software, that--

(A) remains displayed on the screen until the user either grants or denies consent to that feature;

(B) in the case of an information collection feature, provides a clear description of--

(i) the type of personal or network information to be collected and transmitted by the computer software; and

(ii) the purpose for which the personal or network information is to be collected, transmitted, and used;

(C) in the case of an advertising feature, provides--

(i) a representative example of the type of advertisement that may be delivered by the computer software;

(ii) a clear description of--

(I) the estimated frequency with which each type of advertisement may be delivered; or

(II) the factors on which the frequency will depend; and

(iii) a clear description of how the user can distinguish each type of advertisement that the computer software delivers from advertisements generated by other software, Internet website operators, or services;

(D) in the case of a distributed computing feature, provides a clear description of--

(i) the types of information or messages the computer software will cause the computer to transmit;

(ii)(I) the estimated frequency with which the computer software will cause the computer to transmit such messages or information; or

(II) the factors on which the frequency will depend;

(iii) the estimated volume of such information or messages, and the likely impact, if any, on the processing or communications capacity of the user's computer; and

(iv) the nature, volume, and likely impact on the computer's processing capacity of any computational or processing tasks the computer software will cause the computer to perform in order to generate the information or messages the computer software will cause the computer to transmit;

(E) in the case of a settings modification feature, provides a clear description of the nature of the modification, its function, and any collateral effects the modification may produce; and

(F) provides a clear description of procedures the user may follow to turn off such feature or uninstall the computer software.

(b) CONSENT- For purposes of section 2(a)(2), consent requires--

(1) consent by the user of the computer to the installation of the computer software; and

(2) separate affirmative consent by the user of the computer to each information collection feature, advertising feature, distributed computing feature, and settings modification feature contained in the computer software.

(c) UNINSTALL PROCEDURES- For purposes of section 2(a)(3), computer software shall--

(1) appear in the `Add/Remove Programs' menu or any similar feature, if any, provided by each operating system with which the computer software functions;

(2) be capable of being removed completely using the normal procedures provided by each operating system with which the computer software functions for removing computer software; and

(3) in the case of computer software with an advertising feature, include an easily identifiable link clearly associated with each advertisement that the software causes to be displayed, such that selection of the link by the user of the computer generates an on-screen window that informs the user about how to turn off the advertising feature or uninstall the computer software.
Maybe we do need some steps to be taken like this. I've lost a good number of hours over the past year or two helping people infected by this type of software.

Annual IRS Scam Alert

If you've been paying attention, you might have noticed that the IRS issues an annual consumer alert every year warning people to watch out for different scams centering around taxes. Here's this year's Dirty Dozen. Be careful.