Sneaking Suspicions
Archives-- February 9-15, 2003

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This page includes posts from February 9-15, 2003 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

February 15, 2003

Some folks are just spoilsports.

I refuse to join in their cold-hearted nay-saying.

Just in time for Valentine’s Day, the Associated Press reported on yet another study purporting to prove that no foods are more aphrodisiacal than any others:

[E]xperts say dark chocolate, chili peppers and raw oysters have no more power to arouse than a heap of cooked broccoli.

"There's no proof to it," said Cynthia Finley, a registered dietitian at the Johns Hopkins Weight Management Center. "There hasn't been any conclusive evidence that any of these foods work as aphrodisiacs."

Still, lovers around the world continue to believe that some foods boost the libido, showing that when it comes to love, myth is mightier than science.

As for that last point, I think Joseph Campbell could explain a few things about the power of myth, to counter those who seem to delight in throwing a bucket of cold water on the hopes and dreams of most of us.

For example, my wife and I had a delightful dinner last night, which included oysters, dark chocolate, red wine, rack of lamb, strawberries with cream, and other treats. We didn’t see this story before our time together, and it wouldn’t have altered our menu choices one bit.

The point of the food/love myth, of course, is not that it’s actually true.

It’s that it helps people focus on anticipation for what may follow the dessert course.

At least, that’s what I choose to believe.

February 14, 2003
Le E'tat Fromage

A buddy of mine sent me this. I'll be happy to credit the author, if anyone knows who wrote this bit of fun [someone does--see below]:


Gallic Wars - Lost. In a war whose ending foreshadows the next 2000 years of French history, France is conquered by of all things, an Italian.

Hundred Years War - Mostly lost, saved at last by female schizophrenic who inadvertently creates The First Rule of French Warfare; "France's armies are victorious only when not led by a Frenchman."

Italian Wars - Lost. France becomes the first and only country to ever lose two wars when fighting Italians.

Wars of Religion - France goes 0-5-4 against the Huguenots.

Thirty Years War - France is technically not a participant, but manages to get invaded anyway. Claims a tie on the basis that eventually the other participants started ignoring her.

War of Devolution - Tied. Frenchmen take to wearing red flowerpots as chapeaux.

The Dutch War - Tied.

War of the Augsburg League/King William's War/French and Indian War - Lost, but claimed as a tie. Three ties in a row induces deluded Frogophiles the world over to label the period as the height of French military power.

War of the Spanish Succession - Lost. The War also gave the French their first taste of a Marlborough, which they have loved ever since.

American Revolution - In a move that will become quite familiar to future Americans, France claims a win even though the English colonists saw far more action. This is later known as "de Gaulle Syndrome", and leads to the  Second Rule of French Warfare; "France only wins when America does most of the fighting."

French Revolution - Won, primarily due the fact that the opponent was also French.

The Napoleonic Wars - Lost. Temporary victories (remember the First Rule!) due to leadership of a Corsican, who ended up being no match for a British footwear designer.

The Franco-Prussian War - Lost. Germany first plays the role of drunk Frat boy to France's ugly girl home alone on a Saturday  night.

World War I - Tied and on the way to losing, France is saved by the United States. Thousands of French women find out what it's like to not only sleep with a winner, but one who doesn't call her "Fraulein." Sadly, widespread use of condoms by American forces forestalls any improvement in the French bloodline.

World War II - Lost. Conquered French liberated by the United States and Britain just as they finish learning the Horst Wessel Song.

War in Indochina - Lost. French forces plead sickness, take to bed with the Dien Bien Flu.

Algerian Rebellion - Lost. Loss marks the first defeat of a western army by a Non-Turkic Muslim force since the Crusades, and produces the First Rule of Muslim Warfare; "We can always beat the French." This rule is identical to the First Rules of the Italians, Russians, Germans, English, Dutch, Spanish, Vietnamese and Esquimaux.

War on Terrorism - France, keeping in mind its recent history, surrenders to Germans and Muslims just to be safe. Attempts to surrender to Vietnamese ambassador fail after he takes refuge in a  McDonald's.

UPDATE: According to Charles Hill, one of the stuff-eating rabbits at silflayhraka wrote this piece. The original version is complete with links to the history that backs up each summary, too.

Thanks, Charles! And thanks, Rabbits! Mercy buttercups!

February 14, 2003
That’s some Rule, that Rule 68*

Most lawsuits should settle before actually going to trial. 

That’s not only a matter of fact, as any experienced trial attorney will tell you. It’s also a matter of judicial policy.

In the Federal courts and most state systems, judges try to influence the parties to resolve their differences and close out their cases without all the expense and effort of a full-blown trial. Frankly, the American justice system couldn’t take it if all the lawsuits filed actually went to trial.

This push to settle cases happens every day in criminal matters, which is what plea-bargaining does fairly efficiently. It also happens every day on the civil side.

In addition to their powers of persuasion, the judges take advantage of some procedural methods to improve the chances that both sides will see the benefits of compromise. Rule 68 of the Rules of Civil Procedure is one of the best policies enshrined in the Federal courts and most state systems for this purpose.

Here’s how it usually works: 

  • Before the deadline expires, the defense makes an offer of judgment to the plaintiff, detailing what it’s willing to pay to settle the case.

  • The plaintiffs can accept or reject the offer, but rejection has its risks.

  • If the eventual amount awarded is less than the offer, then the plaintiff doesn’t recover any court costs incurred after the date of the offer.

  • Instead, the plaintiff is responsible for the defense’s trial costs as well as the plaintiff’s.

  • If the plaintiff would be entitled to attorney’s fees in the lawsuit, the offer includes that amount as well.

  • If the plaintiff rejects the offer, therefore, all of the attorney’s fees incurred after that date will also be lost if the eventual award is less than the offer.

As one might imagine, this Rule produces some interesting effects on both parties. The defense has to calculate the possible damage award, the potential attorney’s fees, the risk of losing, and the amount that should earn the plaintiff’s acceptance. The plaintiff has to do the same risk assessment, which may help restore a sense of reality to the prospect of a big judgment.

A Sixth Circuit decision issued this week involving Glenn Reynolds’ hometown shows how this Rule works in action, with fair but brutal efficiency.

Five Knoxville, Tennessee firefighters found themselves on the losing side of a competitive race for mayor. The new mayor, Victor Ashe, had an idea or two about rewarding friends and punishing enemies.

The firefighters soon found themselves assigned to new tasks in unfamiliar parts of Knoxville, transferred to new shifts, and on the receiving end of other personnel decisions that made their Fire Department tenure far less pleasurable than it was before the election. This led to grievances and eventually a civil rights lawsuit in Federal Court under 42 U.S.C. Section 1983.

Now, it just so happens that a prevailing plaintiff is entitled to attorney’s fees in a Section 1983 action. In many of these cases, the lawyers' fees become far larger than the amount of damages sought or obtained by the plaintiff. That fact sometimes influences public agency defendants to try to settle the case before the fees become a potential political liability (as in, “You mean you went to trial over $5,000, lost, and now we have to pay $250,000 in fees? How could you do something that stupid!?!”).

That’s what happened here, though perhaps without the political calculation. The city defendants made a Rule 68 offer of judgment to each plaintiff. In response, their attorney wrote back attempting to alter some of the language relating to what the appellate court eventually described as an “unambiguous offer to not discriminate in the future.” 

No agreement was reached, so the case proceeded to trial. The jury awarded modest verdicts to each of the plaintiffs, none of which exceeded $7,645. 

In post-trial motions, the District Court reduced some of these verdicts, with the firefighter who originally won the $7,645 verdict seeing his judgment reduced to $1 in nominal damages. 

As for the Rule 68 issue, however, the trial court held that the defense’s offer was too vague to meet the terms of the rule. It also awarded attorney’s fees to the plaintiffs for the entire litigation, including the trial, though reducing it from the original amount sought (over $365,000) down to only $241,287. 

Neither side was all that happy with the eventual results, and both appealed to the Circuit Court. The Knoxville defendants fared much better than the plaintiffs at this next level, however. 

After an extensive review of the facts and the law on several issues, the Court reversed the decision on the Rule 68 determination. The panel pointed out that the parties were using terms of art with which they were all familiar. Once that fact was kept in mind, the city’s offer was sufficiently detailed for each firefighter to figure out what was truly in the offer and what was not. For example, the offer included a percentage pay increase, but didn’t detail the exact dollar effect. This wasn’t a real problem, however: 

The veteran firefighters, having the benefit of years of experience with the Knoxville merit pay system and having received previous step increases throughout their careers, were fully familiar with the pay step system, as reflected in their trial testimony.

As for the plaintiffs’ attorney’s response letter, that didn’t affect how the terms of the offer were actually understood by the parties:

Dickering or subjective dissatisfaction with the terms of an offer does not render the offer ambiguous, and cannot alleviate the mandatory operation of Rule 68.

The Court therefore held that the Rule 68 offer was valid, and remanded the case back to the District Court to figure out how much of the $241,287 remained to be paid from the work performed before the date of the offer. 

Because the offer pre-dated the jury trial, it’s a fair assumption that the trial cost portion of the attorney’s fees made up a lot of that $241,000, which is not going to be paid by the defense.


Although painful to these plaintiffs, this result shows why Rule 68 is in place. The decision might help others understand the risks of turning down a good offer to settle, and next time take the hint.

*The title to this post is an homage to Catch-22 by Joseph Heller, one of the finest American novels inspired by World War II. The big difference between Catch-22 and Rule 68, of course, is that the Rule makes sense.

February 13, 2003
Would you like fries with that tourist?

I read another classic story via Drudge Report today, adding to the general sense of alarm reported by the news media on other pressing issues.

This time, it’s about an apparent uptick in the number of man-eating lion incidents in Africa:

Ecotourists are helping nature in an unexpected way - by becoming "fast food of the bush" for man-eating lions, it was claimed today.

Reports of lions eating humans are increasing in Africa, and one reason may be more tourists camping on the big cats' doorstep....

Zoologist Bruce Patterson examined the bones of 23 maneaters in Kenya. Most were healthy young male lions. He believes males expelled from prides meet more humans on their travels. "It may all be too much for a lion to resist," he said.

Well, that certainly makes sense.  In addition, the zoologist's analysis keeps the focus where it belongs, on the real victims in this story—the lions.

After all, how appetizing could one of these slow-moving ecotourists be, really? Shouldn’t we export Purina Lion Chow® to the affected savannahs and wildlife parks instead? Surely a steady diet of fresh human flesh can’t be good for the kitties.

The Population Institute suggests at their website that when camping, humans with the proper ecological sensitivity should

“Take only pictures, leave only footprints”....

In Africa, however, some folks are leaving not only their footprints, but are also leaving their feet, legs, arms and other parts behind. This certainly violates the spirit if not the literal terms of the Institute's planet-friendly suggestions. On the other hand, the campers who join the lions for dinner are obviously doing their part to reduce excess human population, and may be helping along the evolutionary process at the same time.

I checked the Internet, and saw no official comment from PETA as of yet. Perhaps in their next press release, they will also suggest new regulations on proper attire while participating in a photo-safari.

Wouldn’t want the lions to choke on a necklace, now would we?

February 13, 2003
Flushed with pride

The Associated Press reported today on a new effort by the Los Angeles Unified School District to do something about its schools' wretched bathrooms.

Unfortunately, the District didn't exactly come up with this idea on its own:

Stung by a TV report showing school restrooms that were dirty, broken down or even locked, the nation's second largest school district plans to hire 125 janitors and spend $10 million on repairs.

The money is to be spent on about 3,000 girls and boys restrooms, in the middle and high schools.

In the meantime, the District is taking steps to halt further damage until the repairs can be made:

Superintendent Roy Romer also asked students to help keep restrooms from being "trashed and vandalized" and called on school employees to monitor conditions closely.

Reading this piece took me back to those halcyon days at my old high school. As a skinny, geeky 10th grader in the three-grade building, I quickly developed a perfectly natural and total fear of ever using the regular bathrooms, at least during normal school hours. I would usually wait until gym class, and used the facilities in the locker room.

It wasn't because the regular bathrooms were trashed.

It was because of who was in them.

Tales spread of fellow sophomores who made the near-fatal mistake of not shouting "'S'all right" as they opened the boys room doors.

Failure to do so meant that the tough guys hanging out in the bathrooms would throw their burning cigarettes in the urinals and the stalls, to avoid being caught by the vice-principal. Once they discovered that they'd wasted their cigs, these were not happy campers.

Things changed for me when several of these same tough guys were recruited for roles as gang members in the Sharks and the Jets for the school's winter/spring production of West Side Story.

These parts were not really a stretch for them. They particularly enjoyed the fight scenes, especially the rehearsals.

I was picked to play the role of Glad Hand, the social director at the dance where Tony and Maria meet. (It's the part played by John Astin in the movie version.)

Dozens of other kids from all of the grades and all of the various cliques also participated in the band or the play, eventually coming together to put on what turned out to be several great performances.

As sometimes happens, the mutual experience led to mutual respect. From that time on, I never had any problems with any of the other guys at the school.

Including the bathrooms.

February 12, 2003
Our southern exposure is now a bit more southern

A long time ago I read someone describe Delaware as “A northern state with a southern exposure.”

That has a lot to do with the fact that the upstate part of Delaware is mostly urbanized, while the southern portion is predominantly rural. It goes much farther than that, however. There are differences in accent, vehicle choice, and even social relations that are readily detectable to close observers.

This morning I made a Continuing Legal Education presentation to the Sussex County Bar Association. The bar group works in conjunction with Delaware Technical & Community College in Georgetown, to help give Sussex County attorneys a chance to earn their required CLE credits without traveling upstate all the time. 

One of the nice things about handling this seminar was that I had a much shorter commute. Even nicer was the fact that it gave me a chance to have a midweek lunch with my wife, whose ESL classes at DelTech finished shortly after the seminar ended. 

We drove to the center of town to one of her favorite places, Smiths Family Restaurant. 

This is a classic, Southern-style restaurant. Lunch platters tend to be priced at about $3.95 or so, and the atmosphere is both bustling and relaxed at the same time. 

Our smiling waitress took our drink orders while we looked at the menu, and we heard a clear signal of the area’s southern orientation: 

Waitress: How about you, sir?
Fritz: I’ll have iced tea, please.
Waitress: Will that be sweetened, or un?
Fritz: Un, please.
Waitress: Un it is, then. I’ll be right back, hon.

Trust me as a Delaware native when I tell you that I would not have had that option explained to me in any restaurant north of the Chesapeake and Delaware Canal.

The menu looked to be standard Georgetown, at least at first. The chicken and dumplings were already sold out (dammit), but there were at least 6 other remaining options to eat chicken, in addition to other local favorites such as lima bean soup.

I then saw a clear signal that the area’s southern exposure is now a bit more southern.

The lunch specials included a tortilla platter.

For a place like Smiths, that’s a major clue that the area's burgeoning Hispanic population, from Mexico and several Central American countries, is having a real impact on the community.


February 11, 2003
When your anger is misdirected, don’t be surprised if someone tells you

Several groups of Minnesota environmentalists found out late last week that when they decide to go after alleged polluters, they need to seek relief from the actually responsible party.

One would think they didn’t need to be told that, but misdirected anger sometimes causes misdirected litigation.

The Twin Cities of Minneapolis and St. Paul needed to obtain National Pollution Discharge Elimination System (NPDES) permits for their storm water sewer systems, under the Federal Clean Water Act. As authorized in that Act, the EPA delegated its permit-issuing responsibility to the Minnesota Pollution Control Agency, the state equivalent to the EPA.

These NPDES permits are remarkably complex. Filing for them requires extensive analysis and preparation, with a typical application taking up several file drawers full of information.

The permits are required from all metropolitan areas with populations greater than 200,000. My clients had to meet similar permit requirements for a segment of Delaware, in coordination with the county government, because most of the area’s drainage systems are part of the state road network.

NPDES permits are also expensive to administer, after they are obtained. My clients are now spending millions of dollars to identify, classify, and inventory every one of the estimated 50,000 catch basins in the permit area.

In other words, the NPDES permits are a classic unfunded Federal mandate.

The permits are also hard to obtain from the permit grantors. During my clients’ application process, it sometimes seemed as if the permit agencies were afraid of saying “yes, here’s your permit.” On the other hand, the permits are admittedly and deeply intricate.

In the Twin Cities case, the Minnesota agency took six years to issue the permits, even though Minneapolis and St. Paul filed their applications by the Federal deadline.

Several environmental groups became frustrated at the delays, and sued the Cities and the EPA. For some reason (comity?) they did not sue the State agency actually responsible for the delays. The environmentalists pressed for the payment of statutory fines for the failure to have the permits in place as required, along with the usual declaratory relief, attorney’s fees, and other relief.

The District Court quickly dismissed the EPA from the suit, because under the citizen suit rules that applied to the case, there was no basis to go after EPA. In addition, after the state agency finally issued the permits, the Court also dismissed the suit against Minneapolis and St. Paul, on grounds of mootness.

Still angry, the environmentalists appealed the dismissal to the Eighth Circuit. They fared no better in front of the appellate panel.

The Eighth Circuit noted that the Cities met their filing burden on time. The delays were solely caused by the state agency, not a party to the suit. Unlike an industrial plant operator, the Cities did not have the option to decide not to operate their storm sewer systems.

Fundamental fairness carried the day:

[I]f these lawsuits had been filed by the EPA or the [state agency], it would be inequitable, to say the least, to order the taxpayers of Minneapolis and St. Paul to pay monetary penalties to the United States Treasury because these federal and state agencies failed to make timely permitting decisions. Because a Clean Water Act citizen suit “is meant to supplement rather than to supplant governmental action,” [citation omitted] we likewise conclude that plaintiffs could not obtain an award of civil penalties as a matter of law.

The environmentalists were probably justified in being angered at the delays in the permit process. On the other hand, it’s a mystery to me why they thought going after the two entities that did what they were supposed to do was the proper way to act on their righteous indignation.

February 10, 2003
If you follow a few simple rules, you can cybergripe all you want.


There are some fights you just shouldn't pick.


The folks who own The Shops at Willow Bend, a shopping mall in Plano, Texas, may have just learned that bit of wisdom.

Henry Mishkoff lives near the mall. He's a web designer whose girlfriend is also Internet-savvy, with her own custom-made shirt site. When Mishkoff learned of The Taubman Company's plan to build the new mall, he registered a domain name and created a new website about it, called "". His site included links to the individual sites of some of the shops to be found there, and he also put in a link to his web design business, Webfeats.

On his new site, Mishkoff also posted a large disclaimer to warn visitors that this was not the official web page of the mall. He also provided a link to the mall's real site, reachable at "" and "".

The Taubman company did not react well to the news of Mishkoff's "homage" to their new mall. It demanded his site be taken down; offered $1000 to pay for the domain name; and sued Mishkoff in Michigan for an injunction under the Lanham Act, alleging violations of trademark law.

Mishkoff did not react well to the mall owner's lawsuit. He registered five new domain names, and created another website linked to all of them, dedicated to presenting his side of the tiff with Taubman. These were the new site names:

  • "";
  • "";
  • "";
  • ""; and
  • "".

After quickly obtaining an injunction against Mishkoff relating to the original domain name, the company then requested and obtained an additional injunction against the five new names as well.

On appeal, the 6th Circuit came down strongly in favor of Mishkoff.

The panel noted that Mishkoff removed the links to his girlfriends' online shirt store and his own web design site from the first Willow Bend domain before the District Court issued its first injunction. This kept his site from being considered commercial in nature. In addition, Mishkoff's disclaimer and link to the official site also eliminated any potential confusion among those searching for the mall's online presence, and therefore actually provided a benefit to Taubman. Accordingly, there was no basis for the initial injunction.

The mall owners fared no better with respect to Mishkoff's cybergriping and the five new domain names, each featuring "sucks" as part of their titles.

The panel held as follows:

Mishkoff's use of Taubman's mark in the domain name is purely an exhibition of Free Speech, and the Lanham Act is not invoked.... [T]he First Amendment protects critical commentary when there is no confusion as to source, even when it involves the criticism of a business. ...Taubman concedes that Mishkoff is "free to shout 'Taubman Sucks!' from the rooftops...." ... Essentially, this is what he has done in his domain name. The rooftops of our past have evolved into the internet domain names of our present.

In a footnote, the court also noted that Mishkoff expanded the scope of his response to the dispute, by creating a new complaint site featuring the name of the law firm representing Taubman, along with (of course) the word "sucks". The panel dryly noted that this new domain name was not affected by the original injunctions.

Considering the money spent on this case, one has to wonder if perhaps the shopping mall owners don't have just a twinge of regret about filing this lawsuit.

There's an old adage about newspapers, in which people are warned not to pick a fight with those who buy their ink by the ton.

As long as the cybergriper keeps any commercial elements off the site, and also uses a simple disclaimer, it looks like people should also avoid picking a fight with those who know how to upload a few kilobytes.

February 10, 2003
Traffic Report


I forgot that February 6 marked the 13-month anniversary of this site. As of that date, there have been 109,493 pages viewed by 85,096 visitors.


Thanks for your patronage. Stop by again soon.

February 9, 2003
A Night at the Symphony

The title to this post is not something one would normally expect to read about when discussing an evening spent in Georgetown, the county seat of Sussex County, Delaware.

Even so, we saw a fine performance notwithstanding the relatively unusual location for a moment of high culture.

The staff at Delaware Technical & Community College should be commended for bringing the Mid-Atlantic Symphony Orchestra to the Owens campus for one of its winter concerts.

The 34-piece group, conducted by Donald C. Bruxton, was surprised and delighted with the reception they received from the sold-out audience in the newly refurbished theater on the Owens campus.

It must be inspiring to step out onto a stage and see no empty seats. In fact, the college staff placed extra chairs along the aisles to hold all the people there to see the show.

The first part of the program started with a sprightly rendition of Franz Schubert’s Overture in D, No. 1, D. 590 in the Italian Style. The orchestra then did an outstanding version of a favorite piece in our house, Gabriel Faure’s Pavane, Op. 50.

The first part of the show finished with compositions by Henry Purcell and Cesar Franck.

After the intermission, the string sections returned to the stage for a polished performance of Edward Elgar’s Serenade for String Orchestra in E Minor, Op. 20. The acoustics were so good that from 14 rows back I could clearly distinguish among the string sections as they played.

The rest of the players then joined the strings for the finale, Franz Joseph Haydn’s Symphony No. 94 "The Surprise", Hob. I, Nr. 94. They did very nice work on this piece, but I still couldn’t help thinking about the Suzuki Method and very, very small children sawing away at their new violins.

It wasn't the players; it was the music itself.

The sell-out and standing ovation should help convince those seeking to bring classical music to this part of the State that their efforts will be rewarded.

February 9, 2003
A misused word

The Associated Press began a story today about the ongoing Catholic Church sexual abuse scandal with this lede:

The former top deputy to Cardinal Bernard Law in Boston, Bishop William F. Murphy, was involved in managing nearly one-third of that city's priest sex abuse cases, according to a published report.

Somehow the word "managing" doesn’t quite seem to fit the situation, now does it?

After all, the word usually carries with it an assumption of competence in handling an assignment.


Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969


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© Frederick H. Schranck 2002-2003