October 18, 2003
Jazz Festival

This weekend is the annual Rehoboth Jazz Festival, a significant highlight of the entertainment calendar for Delaware.

We joined about 800 other jazz fans last night at the Rehoboth Convention Center to see James Ingram put on a great show.

Joined by four talented back-up singers, who split off on occasion to join Ingram for some of the love duets, Ingram wowed the wildly appreciative audience with a collection of most of his greatest hits.

The six-piece band was, in a word I don’t use much, awesome. It’s just so much fun to listen to the musicianship that these men displayed.

Bob Johnson, the head of Black Entertainment Television, handled the introduction, and found a spare minute to suggest we contact our local cable operator to ask that the BET Jazz channel be added to our basic lineup.

Fine with me.

After an instrumental warm-up by the band, Ingram then entered the stage for his nearly two-hour set, and started right in with “One Hundred Ways”. 

He knew his audience. They clapped and sang along with nearly all of his other songs, including “Just Once,” “I Don’t Have the Heart,” “Somewhere Out There,” “Baby, Come to Me,” and “How Do You Keep the Music Playing.” 

About half-way through the show, Ingram told a story about his first stage performance as senior in high school. He said Stevie Wonder was a huge influence on him, and in that show he dedicated his performance of “My Cherie Amour” to a certain 10^th-grader in the audience. He then said that 10^th-grader became his wife and the mother of his six children. 

As one might imagine, this story went over very well with the mostly middle-aged audience, as did his performance of the same song immediately after he told the story. 

Ingram sang two more Wonder songs, and then did a fine version of Luther Vandross’ “A House is Not a Home.”

He finished the set with another of his own songs, and came back for a single song encore that produced a standing ovation from the crowd. 

There’s a lot more jazz to come this weekend. Readers of this site are invited to take the opportunity to join in the fun.

October 17, 2003
Memo to FTC and FCC: Create the Do-Call List

The initial experience with the Do-Not-Call list is producing a lot of phone calls—to the Feds, complaining about the companies that are allegedly ignoring the new regulation.

The Federal Trade Commission and the Federal Communications Commission have received more than 18,000 complaints since Oct. 1, when the government's list took effect. Companies are required to obtain the list's phone numbers every three months; so far, 53.7 million numbers have been registered….

Companies that continue to contact people who said they do not want to be called face fines of up to $11,000 for each violation.

I have a modest suggestion for our friends at the FTC and the FCC for another approach to enforcement. 

This concept enlists the citizens who are most exercised about these unwanted calls into helping convince the recalcitrant companies to change their ways. 

On the websites the agencies operate about the new rules, they should also list the contact addresses, names, and especially the telephone numbers of the telemarketing companies who generate the most complaints. 

There’s precedent for this, thanks to Dave Barry.

In August he wrote a column listing the telephone number of a telemarketing association. This prompted a flood of calls to the association, for which Barry was entirely and appropriately unapologetic. 

If Dave can do it, the Feds can. All they need is a little encouragement. 

If you agree, contact the FTC and FCC and tell them.

They'll take your call.

October 16, 2003
Picked an odd time to start defending yourself, didn't you?

Beginning law students learn in civil procedure class that three basic options are available if someone files a lawsuit against you.

You can ignore them, fight them, or agree with them.

Of these options, the worst choice is to ignore them. That’s because the legal system doesn’t look kindly on folks who don’t respond to those who follow the rules and bring their claims to a court for an impartial decision about who’s right and who’s wrong.

When no response is made to a properly served complaint, a default judgment can be entered. The initial suit papers in all federal courts include a warning about this possibility, just in case there’s any confusion.

If there’s a really, really good excuse, under certain conditions these default judgments can be vacated in favor of working toward a decision on the merits. Even then, however, the rules dictate when the motion for relief from that default judgment can be sought.

Apparently Chris Truax either missed that class or forgot this basic litigation principle.

Truax, an attorney in California, owned a company that registered a domain name for Parma Ham, which for those who’ve never tried it is a fine delicacy, especially with a slice of melon.

The folks in Italy who watch over the production and marketing of Parma Ham didn’t much care for Truax’s internet domain registration, especially after he turned down their offer to buy the domain name from him. In May 2001 they filed suit under the Anticybersquatting Consumer Protection Act, claiming that Truax registered and used the domain name in bad faith.

The plaintiffs tried to serve Truax and his company using several of the legal options available to them. After several failed attempts, they finally made proper substituted service on the California Secretary of State. Truax then shifted the domain ownership to another company, and the plaintiffs amended the complaint and obtained a second substituted service of process on the Secretary of State.

Truax never entered the case, and never responded to any of the attempts at service of either the original complaint or the amended complaint.

The plaintiffs finally moved for a default judgment, and in September 2002 obtained one from the District Court for $24,258.

At that point, Truax finally did something about the lawsuit. He appealed, arguing that the plaintiffs didn’t serve the complaint upon him in the proper way.

The Ninth Circuit wouldn’t hear of it:

Federal Rules of Civil Procedure 55(c) and 60(b) set forth procedures for a party to move the district court to, respectively, set aside the entry of a default or for relief from judgment. Fed. R. Civ. Proc. 55(c) & 60(b). An appeal to this court “cannot be used as a substitute” for these procedures. [citation omitted]….

 “Federal courts are not run like a casino game in which players may enter and exit on pure whim. A defaulted party may not [ ] enter litigation, particularly on appeal, on sheer caprice. It must follow proper procedure to set aside the default.” [citation omitted].

Accordingly, we dismiss the appeal.

Ignorance is bliss.

Ignoring a lawsuit, however, is something else altogether.

October 16, 2003
Truly digital communication

A tip of the hat to Howard Bashman, for his link to a Texas appeals court decision holding that the use of the middle finger gesture did not support a charge of disorderly conduct.

From what I could tell from browsing the Internet, immediate public reaction to the decision about this time-honored insult was mixed.

I have it on good authority, however, that a very highly placed Official expressed His sentiments about the attempted prosecution in no uncertain terms:

October 16, 2003
News from the world of political science

Malaysian Prime Minister Mahathir Mohamad is some kind of kidder.

According to an AP story that includes several other gems, the Prime Minister made several interesting claims in a speech to the Organization of the Islamic Conference.

For example:

"The Europeans killed 6 million Jews out of 12 million, but today the Jews rule the world by proxy."

Geez--and all this time I thought it was the Trilateral Commission that was in charge.

Then there was this stunner:

“[The Jews] survived 2,000 years of pogroms not by hitting back but by thinking," Mahathir said. "They invented socialism, communism, human rights and democracy so that persecuting them would appear to be wrong, so that they can enjoy equal rights with others."

Those crafty Hebrews. They invented human rights and democracy just for the sake of equal rights, did they? Well.

That one phrase about “persecuting them would appear to be wrong” sure is a nice touch from a rhetorical perspective, though. Tends to justify all sorts of murderous activities like suicide bombings, doesn’t it?

The story also included this analysis, which for some reason wasn’t attributed to anyone:

The Islamic summit comes at a time when many Muslims feel under threat following the U.S.-led wars in Afghanistan and Iraq, and Israeli treatment of the Palestinians in the occupied territories.

Call me crazy, but I tend to think that if you kill a few thousand Americans and others in an unprovoked attack on the World Trade Center, the American response might be justifiably viewed as threatening to those who instigated or supported it, but not to others.

We Americans tend not to start fights, but we do tend to finish them. In addition, the effort thus far in Iraq and Afghanistan certainly seems to have been conducted with a significant effort to avoid civilian casualties, regardless of religious persuasion.

From what I’ve seen and read since my high school days in the late 60s, the Israelis also seem to display these character traits.

Perhaps some others could learn from those experiences, but thus far it looks like lesson time is not over yet.

I’m sure I’m not the only one who feels this way about the comments of the Malaysian Prime Minister. On the way home tonight, in fact, I saw one particularly appropriate reaction to these outrageous claims:

Geez.

October 15, 2003
A mild case of sex discrimination

Last Friday night was the big homecoming game for Cape Henlopen. The parents of some of the kids in student government were volunteered to help in the concession stand, so I didn’t see much of the game. Instead, I saw an immense number of hot dogs. 

After the game, however, I saw something far more unique—a girl in full football uniform, holding her helmet and talking to a friend. 

Apparently she was the place kicker for the other school. 

My previous prior exposure to high school girls competing directly with boys in sports was mostly limited to coverage of high school golf for our local newspaper. For several years, many girls have competed successfully and directly with boys in golf. Unlike many other states, however, the number of girls actively playing golf in Delaware has never been high enough to support separate teams. 

Tuesday night I saw another example of high school coed sport participation. Cape Henlopen’s boys’ soccer team beat Woodbridge High School 1-0, in a close, exciting game. 

One of Woodbridge’s strikers was a very fast, highly-skilled ball handler. Her number was 14, but I didn’t catch her name. Three other girls were on the Woodbridge bench for most of the game, as the coach kept his starters in for most of the 80-minute match. 

Delaware schools permit coed sports, under a state Department of Education regulation that openly discriminates against boys:

33.0 COED TEAMS

33.1 If a school sponsors a boys' team and a girls' team in a particular sport, boys shall participate on the boys' team and girls shall participate on the girls' team even if the teams compete during different seasons.

33.2 If a school sponsors only a boys' team in a particular sport, girls shall be permitted to participate on the boys' team.

33.2.1 Coed teams shall participate only in the boys' state championship tournament/meet.

33.3 If a school sponsors only a girls' team in a particular sport, boys shall not be permitted to participate on the girls' team.

I’m sure some folks don’t agree with this rule, but I believe it is a defensible policy, for a couple reasons. 

First, it’s a pretty rare occurrence. The current disparity in participation between boys and girls in other sports such as golf means that for the most part, the rule gives far more girls a chance to play than the few boys it might hold back. 

Most Delaware high schools sponsor both boys’ and girls’ teams in the typical mix of athletic opportunities. Woodbridge is a very small high school, however, and can’t field enough girls to support a full spring soccer team. There should be a chance for all of that school’s soccer players to compete. 

Second, while freedom of athletic expression is important, the schools must continue to fulfill some basic parens patriae responsibilities to the entire student body. For the few girls’ sports without a direct equivalent in boys’ sports, there are serious injury risks if the two genders are mixed. If some 6’2”, 190-pound boy decides to put on a skirt and play field hockey with the girls, for example, not too many parents would stand for it, and with good reason. A field hockey ball can do some real damage at high speed. 

Similarly, boys can usually hit a softball far harder than girls, raising injury risk issues that shouldn’t be taken lightly. 

I realize that my own thoughts on this subject may be tempered by the fact that I have two very athletic daughters. Nonetheless, I also believe this rule makes sense under the present circumstances.

October 14, 2003
Environmental cliches

Looks like the headline writer couldn't resist using a handy cliche for this cautiously optimistic endangered species story:

Spanish Bear Cubs Not Out of the Woods Yet

And speaking of cliches, we certainly know what the little bears will do while they’re in the woods, don’t we?

October 13, 2003
Sometimes doubling up is a good thing

I love blue crabs. 

I especially love them steamed in beer and vinegar, with Old Bay® and Cajun seasoning.  

I also love them broiled in crabcakes, as a filling for omelettes, as a stuffing for flounder and other fish, and in a tomato sauce with pasta. 

This love for crabs makes me an environmentalist. 

After all, if the crabs can’t find a place to grow, breed, and prosper, well then….

Therefore, I was pleased to read the Washington Post story today by Cheryl Lyn Dybas about a successful salt marsh restoration project on the New Jersey side of the Delaware Bay. 

The blue crabs have discovered the newly rebuilt tidal flats, filled with Spartina grass, and are making a comeback in a big way:

Until recently, … few studies had been done on how animal populations respond to restoration efforts.

"Nothing would be better," said Donald F. Boesch, president of the University of Maryland's Center for Environmental Science, "than to find that these formerly degraded salt marshes are returning to a healthy state and are providing habitat to species like the blue crab."

[Paul] Jivoff and [Kenneth W.] Able have discovered just that. The researchers reported in the June issue of the journal Estuaries that blue crabs in the restored salt marshes are thriving.

"Blue crabs rapidly recolonized restored marshes," Jivoff said, "and are equally or more abundant there than in other salt marshes we have studied."

Able added, "In fact, blue crabs often grow faster at restored sites than in [undisturbed] marshes we've used as reference sites," perhaps because of better protection from predators or an enhanced food supply.

The marsh restoration grew out of a regulatory process related to a nuclear power plant. Frankly, that’s how many of these environmentally beneficial projects come into being. It’s not done out of charitable impulses. On the other hand, the crabs and other marsh inhabitants don’t care about human motives. 

My clients at DelDOT, for example, created almost 500 acres of wetlands to replace 245 acres that were taken for the State Route 1 road project.

The 2:1 replacement ratio for much of the wetland creation requirement originated from the environmental agencies’ cautious approach to the idea—they weren’t sure that the new wetlands would “take” and remain in place. 

Fortunately, as with every other wetland creation/restoration project DelDOT attempted, these new wetlands are thriving. 

It helps that Delaware’s soil and hydrological conditions are well-suited to the task. 

Some might argue that since the State’s been so successful in creating new wetlands that it shouldn’t continue to be held to the doubling-up requirement. Nonetheless, I tend to think it should stay in place. Thousands of acres of wetlands have been lost since Colonial times, for reasons that seemed proper at the time. It's only now that we readily appreciate what a mistake it was to eliminate the wetlands. 

The State’s work in creating and renovating marshes is a step toward restoring the prior balance. Doubling up under these circumstances is a practical way to go about it. 

Besides, if the marshes involved are brackish, doubling up creates that much more habitat for more blue crabs, which does not conflict at all with my personal interests.

Yum.

Note: For those who don’t know much about blue crabs, I highly recommend William W. Warner’s Beautiful Swimmers.

October 12, 2003
If the hammocks are that environmentally desirable, then buy them

An AP story today discusses an increasing trend in waterfront development in Georgia that seems to annoy some environmentalists.

Some folks possessing far more money than a keen sense of what a hurricane can do are spending serious money to buy and develop acreage on tiny marsh hammocks, small islands just off Georgia’s coast.

With 10 of Georgia's 14 barrier islands protected from development by the state or federal governments, hammocks represent some of the last real estate available on the water. About 60 percent are privately owned, and environmentalists say their development threatens to pollute the marshes and destroy habitat for animals that thrive there.

"One of the reasons there's so much biodiversity on these hammocks is because we have built out our mainland and this is where these species have gone for refuge," says Patty McIntosh, coastal programs director for the Georgia Conservancy. "What happens when we keep pushing them out?"

Later this month Georgia officials are to meet and discuss potential regulatory changes to deal with access to the hammocks and other sensitive issues.

The Atlanta Journal Constitution has already weighed in on the matter: 

There should be clear criteria for designating some hammocks for critical wildlife habitat, and there should also be significant tax incentives for landowners who agree to conservation easements on their hammock property.

While the state has recently taken steps to beef up developer requirements, stricter limits on paved surfaces and mandated treatment of storm water before it runs into the marshes are also needed, along with a host of other specific protections.

For some reason, the idea that the government or an appropriate private entity should buy up the remaining hammocks to preserve them from development doesn’t seem to have occurred to the AJC or the environmentalists quoted in today’s article.  

In contrast, for most of the Delmarva Peninsula’s barrier islands and similar waterfront property along the Atlantic Ocean, government and/or conservation organization ownership is the norm. 

One half of Delaware’s Atlantic coast is owned by the state park system, and Rehoboth Beach and other coast cities oversee most of the remainder.

In addition to Ocean City, Maryland, almost all of the rest of that state’s barrier islands are in either state or federal hands. 

The Nature Conservancy’s Virginia Coast Reserve is the conservation model adopted for most of the barrier islands and hammocks in the southernmost part of the peninsula, not counting the significant holdings of the Federal government at Assateague Island National Seashore. 

I don’t dispute the importance or legitimacy of the conservationists’ desire to preserve these hammocks in their natural state. On the other hand, if the will is there to keep these islands as wildlife habitat, then there also has to be a way to compensate the hammock’s private owners.

Thus far, however, those pushing for protection don't seem to be willing to pay for it.