December 16, 2004
The limits of considerate behavior

Some folks could do with a reminder that just because they have the ability to use a piece of modern equipment anywhere, that doesn't mean they should.

For example, today Terry Oglesby posted a question of office etiquette that I hoped in vain would never come up--what, if anything, does one do about someone else talking loudly on their cell phone in a bathroom stall?

Thankfully, this has only happened to me once, so far. I was in one of my office building's newly renovated facilities, minding my own business (as it were), when a loud voice came out from the center stall. At first I thought there was a mentally disturbed citizen using the room, a common enough risk in a building that has a lot of visitors. After a few seconds, though, it was obvious that the person wasn't crazy in the committable sense--it was just some kind of salesman, inexplicably making a sales call.

I wondered if the listener on the other end could hear the unmistakable sounds generated in the tile, water, and metal environment in which the salesman was seated.

Here's how Oglesby framed the critical social issue:

[D]oes one flush in such an instance, thus disturbing the conversant man on his cell phone, or does one quietly leave, sparing the caller the indignity of loud swirly water sounds, but offending the next person to come in and use the facilities when he discovers the contents of the bowl to be amber rather than restful blue?

To my way of thinking, the answer is to be found in recognizing the distinction between the conservation efforts one might adopt at home, but not adopt in more public environments.

During the Carter years, for example, one would frequently hear exhortations to conserve water in this particular usage, usually expressed as follows:

If it's yellow, let it mellow.
If it's brown, flush it down.

Following that suggestion might be considered acceptable in one's home, but I really doubt that it would ever be adopted in any routine office building.

If someone is foolish enough to use a cell phone in a bathroom stall, they must accept all the consequences that follow from that act, including the potential transmission of all of the noises generated by other users while the phone addict is on the call.

Flush away.

Please.

December 15, 2004
An air of unreality

Every so often one reads an alleged news story that only makes you scratch your head and wonder what planet the writer was on when he wrote it.

An unattributed piece in this afternoon’s NYT Reuters feed caused this reaction, thanks to its remarkable combination of hand-wringing and ignorance:

U.S. Free Press Faces Toughest Challenge in Years

The free press -- a linchpin of America's proud democracy -- faces its toughest challenge in a generation thanks to legal assaults that have left one U.S. journalist in home detention and others facing prison. A flurry of well-publicized scandals at some of the country's top news organizations has sullied the media's image and only made matters worse.

I’ll grant the writer that the screw-ups by the New York Times, CBS, and other media outlets over the past year have certainly sullied reputations, and deservedly so. On the other hand, other than noting these failures in professionalism, the story doesn’t explain how botched bits of journalistic malpractice have made the press less free.

Instead, most of the piece focused on the assertions of privilege arising during several criminal investigations, including the Plame matter, and the risk of contempt citations issued against some reporters because those privilege claims were found to be counterbalanced by other considerations of justice.

In its overweening focus on these privilege claims, the piece completely ignored all the evidence that if anything, press freedoms have expanded, not contracted.

How else to explain the impact that mass communication in the form of blogging has had on several critical issues over the past three years? How else to explain the impact of embedding reporters among the troops fighting in Afghanistan and Iraq? How else to explain the impact of the Internet on the just-completed presidential campaign? How else to explain the impact of the expansion of television news media outlets over the last 20 years, compared to the three-network oligopoly of 40 years ago?

This Reuters piece is notable for its willful rejection of reality, in favor of the skewed sense of martyrdom that runs through the entire report.

Perhaps that’s why the writer is not identified. It could be too embarrassing—or at least, it should be.

December 14, 2004
We're all just polemicists here

Eleven days ago I copied and sent Eugene Volokh a portion of my December 3  post about how the Delaware Reporter's Privilege Act extends to certain kinds of bloggers--the ones that spend a lot of time blogging, that is.

Volokh wrote me this weekend and said he was going to blog a bit more about Delaware's privilege law, thanks to yours truly.

Boy, did he.

So far he's run three separate posts today, all of them enjoyable. First, he quoted the statute, and showed he appreciated the First State's novel legislative use of the word "polemicist" as much as I did. Second, it dawned on him that trying to meet the privilege law's time requirement also provided the perfect excuse to one's spouse for sitting in front of the computer. Finally, Volokh suggested that blogging at this level of effort deserved its own defining phrase:

"Spending Delaware time" (or "Delawaring").

Besides the Delaware bloggers noted in the home page blogroll here, there are at least two law professor bloggers for whom this phrase has special meaning, because they are Delaware natives.

One of them happens to be a Volokh co-conspirator, Orin Kerr. The other is Ann Althouse.

If Volokh's new term takes hold in the blogosphere, there may even be a few more bloggers out there who (a) wouldn't mind using the phrase, and (b) actually know where Delaware is.

That second condition is more difficult than one might think.

December 13, 2004
So would you like that permit, or not?

Last Friday the Second Circuit Court of Appeals issued an opinion that should be closely read by many government lawyers eager to make sure their clients follow the Fourth Amendment.

Notwithstanding the decision in favor of the government’s position in the case, I think many of my fellow counsel will suggest an alternative approach to the administrative law problem presented in the case, more in line with the sentiments expressed in the dissent. 

A Babylon, New York resident named Paul Palmieri applied for a permit from the New York State Department of Environmental Conservation to build an addition to his existing boat dock extending into Great South Bay. Palmieri had obtained similar permits in the past, which included the usual terms reserving to the DEC the right to inspect the work done under the permit to make sure it complied with the law and the permit conditions. 

On prior occasions, Palmieri gave every indication that he didn’t think the DEC had the right to conduct these inspections. For the state agency and anyone else, Palmieri made these feelings obvious, with large NO TRESPASSING and BEWARE OF DOG signs posted on his property. 

Despite these hints, Agent Pamela Lynch and a DEC intern entered Palmieri’s property not long after he filed his application, and shortly after he allegedly sent another letter warning the DEC not to trespass. No one answered the front door, so Lynch and the intern opened an unlocked side gate and let themselves into the back yard, near the dock. Palmieri then appeared, bearing a videotape recorder, and within a few minutes the two state employees left the property. Lynch advised Palmieri that without a completed inspection there could be no permit, but that didn’t convince the property owner to change his mind. 

Instead, Palmieri sued in Federal District Court over the alleged civil rights violations caused by the trespassing, under 42 U.S.C. Sections 1983 and 1985. He also litigated in state court over the now-denied permit. 

The state court eventually ruled that the DEC needed to conduct a factual hearing on whether the inspection was actually necessary. On the other hand, the District Court dismissed the civil rights suit completely. 

The circuit panel split on appeal.

All three judges agreed that there was no violation of Palmieri’s civil rights under 42 U.S.C. Section 1985, because that statute requires a showing of a race-based or similar class-oriented animus driving the state’s conduct, which wasn’t true in this instance.

Two of the judges also decided that the DEC permit scheme fit within the limited range of exceptions to the general rule requiring a warrant under the Fourth Amendment, even for routine administrative activities such as this. Their analysis is certainly a reasonable interpretation, and is well worth reading. 

Bear in mind, however, that this lawsuit chewed up a fair amount of time, effort, and legal resources, in two different court systems, all for a single, by all appearances routine, permit application.

That’s why I prefer the position taken by Circuit Judge Chester Straub in his dissent on the Section 1983 issue:

The only possible purpose of the application scheme in general, and this inspection in particular, was to prevent construction of any edifice that might affect the environmental integrity of the Great South Bay. Service of this interest in no way required violating Palmieri’s Fourth Amendment rights. That this is so is evidenced by the simple fact that had the DEC agents rung Palmieri’s bell, found nobody home, seen the “No Trespassing Signs,” respected the wishes there expressed, and left without conducting their search, the permit would not have been granted, Palmieri could not have constructed his dock, and the Great South Bay would have remained pristine. By refusing requests by the DEC to conduct the inspection in the manner they chose the only interests that Palmieri affected were his own. His recalcitrance in no way threatened harm to the Great South Bay.

If the agency took that position, then Palmieri could still challenge the inspection requirement in state court.

On the other hand, taking that approach to issuing the permit also significantly reduced the chance that Palmieri could make a Federal case out of it.

Government agencies have enough else to do than to give folks even more opportunities to sue them, whether the agencies win these lawsuits or not.

December 12, 2004
Not quite playing to one’s handicap

Golfers’ handicaps help level the playing field among the competitors, but it’s important to remember that a player’s extra strokes are based on a weighted average of 10 rounds of golf.  

You also have to keep in mind that golfers with handicaps above 25 or so are fully capable of wildly erratic scoring. 

This morning I played with Bill, a pleasant 34-handicapper, and his buddy Don, who carries a 15. (For non-golfers, this means that Bill tends to score two over par on each hole, while Don tends to play a little better than bogey golf.)

Bill played the front nine very well, in fact 7 strokes better than expected. Then the wheels came off a bit on the 10^th and 11^th holes. He recovered with a nice drive on the 12^th hole, but his approach shot to the green went far right. So far right, in fact, that it ended up on the tee box for the 16^th hole, about 35 yards from the 12^th green. 

Somehow Bill had to keep his third shot low to go under a large tree, but without landing in the bunker short of the green. Even if he managed to overcome these two hurdles with a low shot, he could easily run the ball past the green into the sand trap on the other side. 

He had, in other words, no shot--until he took it. 

The ball went high and nicked a small branch off the tree. Bouncing off that impact, the ball then climbed even higher.

Gravity took over just in time. The ball BWANGED into the flagstick and shot straight down into the hole.

After I stopped laughing, I called out to Bill, “Nice routine birdie.” He grinned.

Don said a few other things, none of which are appropriate for a family-friendly blog.

Bill grinned some more, as he should have. 

At least he didn't claim that he planned it that way.

December 11, 2004
Great way to phrase it

Appellate court decisions tend to be a little dry in the reading--dry as in Mojave, Death Valley, or Sahara. 

With notable exceptions, the drafters of these legal opinions tend to wash out of their prose any hint of sprightliness or a sense of humor. 

I’m not looking for a good death penalty joke to be slipped into a circuit court opinion about a murder conviction. Nonetheless, in other kinds of cases the chance to provide at least a slight grin should be acceptable.

An Eleventh Circuit decision issued on December 8 shows how to take advantage of this opportunity, through a clever euphemism I hadn’t seen expressed elsewhere in quite the same way.

Pauline Koziara is an exotic dancer. She worked at Rachel’s Gentlemen’s Club in the City of Casselberry, in central Florida. Unfortunately for her and her regular customers, the local authorities shut the place down by revoking its adult entertainment license.

Undaunted, Kozaria simply continued her performances at a nearby Orlando exotic dance venue owned by the same company. She didn’t miss a day—or night, for that matter.

On the other hand, she also joined with the owners of Rachel’s in a lawsuit challenging the closing of the Casselberry operation. She sought declaratory and injunctive relief, but no damages.

The District Court held that Koziara had no standing to bring her suit against the town, and dismissed the company’s suit on other grounds. Koziara appealed the decision against her, but the Circuit panel upheld the lower court. 

Their reasoning was both impeccable and (perhaps unintentionally) amusing:

[A] plaintiff seeking only injunctive or declaratory relief must prove not only an injury, but also “a ‘real and immediate threat’ of future injury….***

Koziara has not demonstrated an injury for standing purposes. The City’s enforcement of its ordinances did not affect the First Amendment rights of Koziara: it was Rachel’s license that was revoked and it was Rachel’s business activities that were shut down. Koziara, on the other hand, was free at all times to pursue her chosen career at another location in Casselberry or elsewhere, which she in fact did. From the day Rachel’s license was revoked until the day Rachel’s received a new license, Koziara exercised her First Amendment rights at a Rachel’s club in Orlando. Here, Koziara was only a “concerned bystander” because she suffered no particularized injury.

What a great way to describe what she does for a living—“exercise[] her First Amendment rights”.

I can just imagine how Koziara’s customers would express their own appreciation for her efforts: “Hey, babe, show us your speeches!”

Geez.

December 10, 2004
La Red could use some green

Last night my wife and I attended a very pleasant fundraiser for La Red, a Sussex County community health care center operated by the folks at La Esperanza.

La Red is among the very few maternity clinics in Delaware, and the only one in Sussex, specializing in providing prenatal care for women who are either uninsured or underinsured. Most of La Red’s patients are Hispanic émigrés, although there are no actual restrictions on who may seek help. 

The need continues to grow, but La Red is having trouble meeting it. One of the fact sheets I read during the party said that a donation of $375 paid for 6 monthly prenatal visits for one pregnancy. 

The money is one thing—finding enough ob/gyn doctors to handle the demand is another, as noted in a recent story about La Red in The Dialog, the weekly newspaper of the Diocese of Wilmington:

The wait … is such that a poor woman who learns she is pregnant and calls La Red today will not have her first prenatal appointment until the beginning of April, [the executive director] says, into her third trimester.

The state’s Director of Public Health was among the speakers at the fundraiser. He spoke eloquently in praise of La Red, its staff, and their mission. 

If you have a little green handy between now and the end of the year, please consider donating some to La Red or to similar maternity clinics where you live. Good prenatal care can significantly reduce the risk of problems during childbirth and can also help reduce infant mortality rates thereafter.

December 9, 2004
PBS, Procol Harum, and fractured lyrics

A few nights ago my wife and I watched PBS’s Great Performances, a rerun of the 1957 television classic, Rogers & Hammerstein’s Cinderella.

Neither of us had seen this version, which starred Julie Andrews in the title role. We’d only seen it when Lesley Ann Warren played Cinderella in the 1965 edition, in which Warren also performed beautifully.

Among the other pleasant aspects of seeing the 1957 version were the comic performances of Kaye Ballard and Alice Ghostley as the two stepsisters. 

Seeing Ghostley reminded me of her critical contribution to a fractured lyric a long time ago. 

Y’see, my wife has a near-photographic memory for lyrics and dialogue, but I don’t.

For example, the way I used to sing along to the FM radio, Procol Harum’s Whiter Shade of Pale included these lines:

And her face, like Alice Ghostley,
Turned a whiter shade of pale.

I was wrong, of course, as Charles Hill could quickly tell you without checking.

December 8, 2004
Almost changed my mind

I do not support hate crime legislation.

Delaware’s version (11 Del.C. Section 1304) is pretty typical among those states that have adopted these laws. It calls for increased sentences if the prosecution can prove not only the underlying offense, but also the defendant’s particular motivation to:

(1) Commit[] said crime for the purpose of interfering with the victim's free exercise or enjoyment of any right, privilege or immunity protected by the First Amendment to the United States Constitution, or commit[] said crime because the victim has exercised or enjoyed said rights; or

(2) Select[] the victim because of the victim's race, religion, color, disability, sexual orientation, national origin or ancestry …. For purposes of this section, the term "sexual orientation" means heterosexuality, bisexuality, or homosexuality.

I don’t have a problem with showing the facts concerning motivation as part of the state’s presentation of the evidence at trial. It can be a critical element to help prove the case against a defendant beyond a reasonable doubt. Nonetheless, there’s something vaguely Orwellian about using that same evidence to seek additional penalties solely due to certain characteristics of certain victims . It just keeps coming back to a morally objectionable idea along the lines of “all victims are equal; some victims are more equal than others.”  

I draw a distinction between hate crime laws and other instances where enhanced penalties exist, such as when the victim is a police officer. In that case, the policy argument is partially based on deterrence and partially based on recognizing that the police deliberately put themselves in harm’s way for the sake of the rest of us.

Nonetheless, I must also confess that for a few moments today I thought that perhaps there might be some appropriate basis for these motive-based overlays on the general criminal law. 

It happened as I learned about an incident outside our church last Monday:

St. Edmond's Catholic Church Office ManagerYvonne Bailey and Father John Smith were dismayed when they looked out of the church Tuesday and saw that the bronzed statue of Jesus had been vandalized.

Jesus had been decapitated and the two children in his arms had gouges and holes in their heads. Bailey speculated that the gouges had been made with hammers….

She said people in the congregation have been in shock. Many have said the vandalism is a hate crime against the Catholic church.

"It was definitely intentional, you can't smash a statue unless you mean to do it," said Bailey.

Thus far the police were not inclined to conclude that the perpetrators could be charged with a hate crime:

Rehoboth Beach Police Det. Scott O'Bier said it appears the act was senseless vandalism by intoxicated individuals. "We don't have any reason to believe it was a hate crime because of the beer cans found in the area," he said.

He said the department is not viewing the incident as a hate crime because to qualify the statue would have had to been vandalized solely because it was a Catholic statue.

The police are now working on a few leads, which I hope will be successful. Whoever is caught will most likely be charged with felony criminal mischief (11 Del.C. Section 811) , which carries a potential two-year prison term. If the evidence supports an additional hate crime charge, then there’s a chance that another year could be tacked on to the final sentence.

I still don’t think hate crime laws are a good idea, but in this case at least, I can better appreciate why some folks support their existence.

December 7, 2004
Anecdotal confirmation

A story yesterday at CNET News announced a startling increase in online sales during the first month of the Christmas season:

U.S. consumers spent $8.8 billion at online stores during November, up 19 percent compared with the same period last year, according to a report released Monday.

The piece went on to describe survey responses from 1,000 weekly interviews that also broke out the sales histories into various segments, such as apparel, books, electronics, and music.

I can provide a little anecdotal confirmation of this welcome development.

My most recent Amazon.com Associate report also showed a large increase in sales of all types at my golf-related web site, Hole By Hole, over the last month. The customers are not only buying golf books I’ve reviewed, but are also ordering several other items, not all of them related to golf. The site’s links to Amazon haven’t seen this kind of traffic in a very long while.

I normally wouldn’t make generalized assessments based on how a little web site specializing in a single sport would relate to the overall online economy. The plural of anecdote continues to not equal data. In this case, however, the news concerning the general trend surely helps to explain the results of the more specific retail history in which I'm involved.

And for those of you who have helped boost sales at Hole By Hole, thank you very much!

December 6, 2004
Rehoboth in December

Here are a few images from going downtown for tonight's Christmas parade:

The Dolle's candy store was closed, but the Christmas lights were a nice addition to the Boardwalk scene.

The Cape Henlopen High School marching band wowed the hundreds of parade watchers--as usual.

This year's parade included several dozen horse, pony, and donkey riders, seemingly far more than in prior Christmas parades.

December 5, 2004
Chocolate pralines

Except for the chocolate, this recipe is the version of the popular candy we were taught at The New Orleans School of Cooking. It’s not available at their website right now, but it was last February when I printed off a copy.

Ingredients:

1 ½ cup sugar
¾ cup light brown sugar, packed
½ cup milk
6 tbsp. butter
1 ½ cup pecan pieces
1 tsp. vanilla extract
1 square (1 oz.) Bakers® semi-sweet baking chocolate

Directions:

Combine all ingredients and bring to a “softball stage” (238-240 degrees), stirring constantly. Remove from heat.

Stir until mixture thickens, becomes creamy and cloudy, and pecans stay suspended in the mixture. Spoon out onto parchment paper and let cool.

Notes:

The “softball stage” is a cook’s trick where a small amount of the hot mixture is slid into a glass of water. If the pralines are ready, the stuff should stick to the sides. 

This “softball”method has been only fitfully successful for me. I’ve had much better luck relying on a good candy thermometer, and removing the mixture from the heat when it reaches 240-245 degrees. 

The one square of Bakers® adds a slight chocolate flavor to the pralines, which also taste great without any chocolate at all. I might add a second square of chocolate the next time.

Using a wooden spoon for stirring yields about 45 pralines, each about 2 inches in diameter.

Leaving the pralines out to cool for more than 15 minutes will mysteriously reduce the total yield, if you don’t also stay in the room to prevent poaching.

December 5, 2004
A new edition of Revolt of the Haves?

I collect rare first edition books. 

It’s not intentional. It’s just that some of the stuff I enjoy reading about is not NYT bestseller material.

For example, I have a first edition copy of Revolt of the Haves, Robert Kuttner’s 1980 history of the California property tax revolt that resulted in Proposition 13.

Amazon says it’s out of print, and with “limited availability.” I’m not surprised.

On the other hand, if a recent Christian Science Monitor report is correct, the co-founder and co-editor of The American Prospect may have an opportunity to work up a new edition:

While fuel prices may be starting to skid, there's another expense closer to home that is upsetting many Americans: rising property taxes.

From Madison, Wis., to Bucks County, Pa., the local tax assessor is dipping deeper into homeowners' pockets as real estate prices rise and states share less of their tax revenue with local governments.

The Monitor piece is a good summary of the growing problem of rising property taxes, the causes of which appear to be several: the changing demographics of “edge” communities, annual reassessments during periods of significant price appreciation, and a trend by state governments to cut funding support for local jurisdictions. Staff writer Ron Scherer also notes that grassroots reform efforts are underway:

In many states, the tax bite is finally causing taxpayers to bite back. For example, in New Jersey, a grass-roots group, Citizens for Property Tax Reform, says it has 500,000 participants after 15 months of existence. The group's mission is to force a property tax reform "convention."

"For 30 years the New Jersey legislatures tried but they couldn't come up with a ... solution, so we thought we should take the process out of Trenton," says Cy Thannikary, a retiree and revolt founder. "We want fundamental reform of the way to fund schools and municipal services."

Ann Althouse wrote about her own experience with property taxes in Madison, Wisconsin, one of the cities Scherer discussed. She noted that Madison’s

tax on the average house, worth $205,359, is $4,458.  

This morning Althouse wrote that the tax on her home is a whopping $11,926.89, leading her to wonder what kind of mansion she must own.

Stories like this are often the explanation I hear from people who retire to the beach areas in Delaware from other states. 

By comparison, our property taxes are ridiculously low.  This year we paid a total of just under $900 in combined property taxes on our house, which has a market value approximately equal to Althouse’s “mansion” (based on her description of the average Madison home). I’m no longer surprised to hear new émigrés tell me that moving to Delaware gave them the financial ability to retire, because they couldn’t afford to stop working and continue to live on Long Island or north Jersey.

My prior posts on property taxes have been centered on the need to make sure that the reassessments are accurate and updated on a regular basis. Our county’s last general assessment was done thirty years ago. On the other hand, with the taxes being so low there’s almost no interest in adjusting for significant changes in property values.

The original idea of property taxes was based on the same notion used by Willie Sutton to explain why he robbed banks—because that’s where the money was. Those who owned land were also presumed to have the available resources to pay for government, and in an agriculturally-dominated economy that was a safe assumption. 

Things change, including this particular presumption, but government tax policies are usually slow on the uptake, especially at the local level. 

There’s certainly a proper place for property taxation as part of a local government’s overall scheme for raising revenue for the services that the area’s taxpayers want to have. The problem in places such as Madison, however, appears to be that the government failed to avoid the disruptive influence of too-heavy dependence on property taxation.

If they wait too long to do something about this, then Kuttner should soon have enough material for another book on a new tax revolt.

Maybe it’ll sell better this time.