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
February 15, 2003
Some folks are just
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
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
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]:
COMPLETE MILITARY HISTORY OF
Gallic Wars - Lost. In a war whose ending foreshadows
the next 2000 years of French history, France is conquered by of all things,
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
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
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
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
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
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!
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
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.
plaintiff is responsible for the defense’s trial costs as well as the
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
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.
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.
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
Reports of lions eating humans are increasing in
Africa, and one reason may be more tourists camping on the big cats'
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.
Population Institute suggests at their website that when camping, humans
with the proper ecological sensitivity should
“Take only pictures, leave only
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?
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
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
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
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
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
A long time ago I
read someone describe Delaware as “A northern state with a southern
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
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:
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
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
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
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
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
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
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.
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.
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
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.
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
"shopsatwillowbend.com". 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 "theshopsatwillowbend.com"
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:
- "willowbendmallsucks.com"; 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
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 taubmansucks.com 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
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
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.
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
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
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.