Delaware Law Office
of Larry D. Sullivan, Esquire

A Weblog?
The column to the right, is a news/editorial/comment column. It is a weblog, also know as a blog.

The weblog thing comes from www.blogger.com, which offers us a convenient way to manage the posting, administratively. You don't really need to know all of that, but we have included this explanation so that you won't be confused by the term "blog".

Another important topic here is that since the column includes editorials and comments, you can be sure that we are just exercising our free speech rights as guaranteed by the Constitution and as not yet abridged by a reactionary opportunistic vocal minority.

opinions, everybody's got one...
If you would like your opinion published here, forward it for consideration and editorial review to: info@delawoffice.com.
Or add a comment. Comments by: YACCS

We encourage the exchange of responsible ideas.

Saturday, August 10, 2002

inventor's blog

 
Freedom to Tinker (via bOing bOing) is a blog by a Princeton Professor who writes about technology, and the "freedom to understand, discuss, repair, and modify the technological devices you own." Seeing legal issues involving technology from a "tinkerer's" perspective is an excellent opportunity to understand the impact that much recent legislation may have. I'll be back visiting this site when some new legislation relating to technology rears its head.


broken hearts and crushes

 
Ever receive an email telling you that someone has a crush on you? Was the message from a web site that allows people to share that type of information, and acts as an intermediary like you might remember from your days in middle school? Did the note remind you of spam? The Alternet article The Bot Who Loved Me looks into a couple of services that provide that type of notice, a potential lawsuit against such services, and the identity of people behind a couple of "crush" sharing sites. Spam-generators or matchmakers -- the jury is out. I usually trash these when I see them in my inbox. I guess I've seen too much spam to believe that these messages are anything else.


death penalty in delaware

 
A few weeks ago, a capital case in Delaware was put on hold while the impact of the Arizona v. Ring case could be gauged by the Delaware Supreme Court. Going through the local paper the other morning, the news was that another case had been halted while the Court considers the US Supreme Court ruling.

The State Supreme Court is reviewing Delaware's new death penalty statute, and the constitutionality of a number of death penalty cases on appeal. There are presently 20 capital murder cases in Delaware that are pending trial. The decision of the State's highest Court will influence the procedures to be followed in those cases. I expect that over the next few weeks, we'll see more of those capital cases reported as being put on hold while the Court considers how they should go forth.


closing of a courthouse

 
A ceremony on the steps of the Daniel Herrmann Courthouse yesterday afternoon was well attended by members of the bench and bar, active and retired; by Delaware's Governor and the Mayor of Wilmington; and by court house staff.

On a hot afternoon, promises to keep speeches short were broken as fond memories and stories of professional lives realized within the court house were shared in front of the columns of the Public Building. The place has meant a great amount to the people of Delaware, and to the legal community. It will be missed.


constitutional uses and abuses

 
The July edition of Common-Place.org is a special issue on the constitution which includes a section on Uses and Abuses of the Constitution:
This roundtable discussion is intended to help us all reckon with our rhetoric and remedy our indifference. In eight paired essays, historians, political scientists, journalists, and lawyers examine the uses and abuses of the Constitution in contemporary American political affairs, from Bush v. Gore to the The Clinton Impeachment.
The remainder of the articles in the July edition are also worth a good gander, such as the one entitled The Common School about high schoolers debating the meaning of the constitution, and the We The People competition.


employee abuse prevention act of 2002

 
Does the location of a corporation's filing of bankruptcy impact upon the representation of employees and retirees?
A provision of the Employee Abuse Prevention Act of 2002, introduced last week by Sen. Dick Durbin, D-Ill., and Rep. William Delahunt, D-Mass., would prevent companies incorporated in Delaware from filing for bankruptcy in the state if they don't have their headquarters or principle assets here. The aim is to make bankruptcy proceedings accessible to more workers and retirees.
Now, there are a large number of businesses incorporated in Delaware that have their headquarters or principal place of business located elsewhere. Delaware is a popular choice as a place for many companies to go through bankruptcy proceedings. Is an argument that it was chosen as a location because it would be more difficult for employees and retirees to have representation in such a proceeding a valid one?

The reason for the legislative package itself is something that may find little argument amongst legislators:
"The backdrop here is that we have had a number of high-profile cases where officers have looted the company and employees have little power in bankruptcy right now to try and recoup losses when officers have pillaged their savings and retirement earnings," said Travis Plunkett of Consumer Federation of America. "It is important for employees to have the option to participate in a bankruptcy proceeding."
But, is the venue of such a proceeding important? Is it possible that the venue provision can be severed from the remainder of the bill, and the Act can still protect those people being harmed?

Here is the House version of the bill (H.R. 5221) and the Senate version (S. 2798). Both have been referred to the committes on the judciary for each.

For those in Delaware concerned about whether or not the venue of a bankruptcy filing will be limited to the principal place of business, and no longer permitted to be filed in the state of incorporation, these committees will probably give that issue a considerable amount of scrutiny.


non profits and the internet

 
First Monday has an essay called The Potential of the Internet for Non Profit Organizations that is worth reading if you are involved in such a group, or if you have web skills that might help a non profit organization, and you are interested in volunteering the use of some of those skills.
Non-profits can draw on the experiences of other organizations and consider online volunteer management, discussion forums, information-rich Web sites, innovative fund-raising, online advocacy and tailored information distribution, to develop an Internet strategy that reflects their needs and resources.

The process requires an understanding of the organization's overall aims and objectives, the target audiences and the needs and focus of the interest or 'stakeholders' in the organization. The Internet offers new and powerful ways to communicate with this supporter community, other organizations and the public at large. However, it is important that the strategy not only focuses on the goals of the organization but also on its biggest asset - their community of members, volunteers and donors.
So, for instance, if one of my favorite local non profit organizations wanted to take better advantage of the internet, they should look such things as a message forum for volunteers, web cams for some of their flight cages, a blog that lists daily going ons at their facility, and a way to communicate some of their findings with others who research wildlife.


Friday, August 09, 2002

attorney at law

 
Why do we say it that way? Are we just trying to distinguish members of the bar from those persons who have been appointed by a power of attorney?

The language of a power of attorney often confuses my clients, by the way. They read it and say to me: "why am I giving you this power, Larry, this is all wrong. It says my "attorney" has the power to do [this and that] ...". I explain to them that in a Power of Attorney document, the "attorney" that it refers to is the person that the client appoints to handle their affairs, not to me.

Why don't we just call ourselves lawyers to avoid the whole confusion? Or, if we have to make a phrase out of it, let's make a phrase that has a more intelligible meaning in modern times such as: Attorney for Law; Attorney by Law; Attorney through Law; or Attorney Despite the Law. Attorney at Law sounds like we are just hanging out at the law. It doesn't give me the impression that there is any action going on. I haven't been to work one day in my career when there wasn't a lot of action going on, even if I had to make some up.

Now, the phrase "members of the bar" that I see in my first sentence, there is a phrase with some meaning and action.

Bill (correctly) encourages me to insert links to references on the net to support my blog entries. Well I began my search this morning with a search on Google. The immediate response was: "Results 1 - 10 of about 303,000. Search took 0.40 seconds". Well there is just not enough coffee in this member of the bar to overcome last nights actions and enable me to go through these "about 303,000" entries to supplement my Friday morning incoherent ramblings. Those of you looking for more scholarly research this morning will just have to move on.


future law on tv

 
A legal drama set 50 years in the future is in the process of being developed. It sounds like there is some serious interest amongst the major TV networks for the show. After seeing Minority Report earlier this year, I can envision what might come of this. It does have an intriguing sound about it.


Thursday, August 08, 2002

microsoft settles with the ftc

 
A settlement was reached today between Microsoft and the FTC involving statements made by the company about security and their Passport Single Sign-In, Passport "Wallet", and Kids Passport programs. The complaint does a good job of enumerating the problems with representations made describing those systems.

The consumers' groups that were instrumental in bringing this action forward include:

Center for Digital Democracy,
Center for Media Education,
Computer Professionals for Social Responsibility,
Consumer Action,
Consumer Federation of America,
Consumer Task Force for Automotive Issues,
Electronic Frontier Foundation,
Junkbusters Corporation,
Media Access Project,
NetAction,
Privacy Rights Clearinghouse, and
U.S. PIRG.

Most of these groups are fighting many other battles. It's worth a visit to their sites to see where and how else they are involved.


new guinness records book category?

 
A fine under the Telephone Consumer Protection Act in the amount of 5.4 million dollars is the largest ever. It's also the first against a company referred to as a "fax broadcaster," and involves 489 violations of the Act. The Electronic Privacy Information Center (EPIC) has a page entitled Telemarketing and the Telephone Consumer Protection Act (TCPA), which has more on the Act:
The TCPA of 1991 specifically prohibited the sending of unsolicited chimerical fax messages ("junk faxes") to someone without first obtaining their consent. Additionally, all commercial fax messages sent must include accurate information on the time and date they were sent, and the phone number of the sending fax machine.
They also include links to a number of sites dedicated to informing the public about junkfaxes.


george bush's energy policy act, and the agencies that won't follow it

 
This caught my attention:
Almost every cabinet level agency in the federal government has violated the Energy Policy Act of 1992 by failing to buy or lease the legally required percentages of alternative fuel vehicles for their federal fleets, a judge ruled Wednesday. The ruling could force 15 federal agencies to step up purchases of vehicles powered by fuel cells, natural gas, biodiesel, and other alternative fuels.
OK, if you noted the date of the act, you realized that the law was from George the elder. This alternate vehicle law makes sense, and is one of the smartest things that George the younger could do right now. These agencies shouldn't pursue compliance with this law grudgingly. They should do it with gusto.


Wednesday, August 07, 2002

The Sarbanes-Oxley Act of 2002

 
I had the [unrealistic] goal for myself to analyze and report on the new corporate accountability law (PDF), today. It took me a couple of hours to obtain a copy, and 2 minutes to realize that it was too big of a job for one day...or even a week. I decided to be a good lawyer, and assign my law clerk to prepare a Memorandum, while I read it and come up with the answers on my own.

I will compare notes with him, and with the various other reviews of the law that my cohort, Bill, has found for us on the net. I then hope to provide you with an intelligible Delaware summary by the end of next week (which in lawyer-speak means September).


Tuesday, August 06, 2002

sports memorabilia

 
In one of the biggest decisions of his life, Roberto Duran was awarded five championship belts today. The belts were taken in a staged robbery at Duran's house, and weren't discovered until an attempt to sell them to a sports memorabilia dealer went bad.

Sports memorabilia is a troubling thing to collect. A number of states require that some type of express warranty of authenticity accompany a sports collectible. But, as we saw a couple of months back in a class action suit against eBay, you should be careful where and how you buy such items.

Ebay had successfully defended a $100 million class action suit involving items sold on their auction site which had phony autographs. A July decision in the Fourth Circuit Court of Appeals had the effect of removing eBay as a defendant in the case:
Justice Terry O'Rourke, writing for the Court of Appeal, said Quinn was correct in ruling that eBay is not a "dealer" in autographed memorabilia within the meaning of the California Autographed Sports Memorabilia Law.
ebay was charged with violating the State of California's law which requires that a sports memorabilia dealer sell goods with an express warranty of authenticity. But, is eBay a dealer? The Justice didn't believe so, and articulated an exception involving some transactions on the web that carry some pretty broad implications.
But O'Rourke said eBay is not an auctioneer in the sense envisioned by the law, because it was not the owner or consignee of the items but merely brought together the dealers and buyers. eBay, he said, "does not sell or offer to sell collectibles because it is in fact the individual defendants who sold the forged items to appellants.

The justice went on to say that any action against eBay is preempted by Sec. 230 of the Telecommunications Act of 1996, which says that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

The section expressly bars any suit based on inconsistent state law.

That immunity is extremely broad, O'Rourke said, citing a 1997 Fourth U.S. Circuit Court of Appeals decision that absolved America Online from potential liability for defamatory messages posted on its bulletin boards.
Keep this in mind if you feel the inclination to purchase something through eBay. And, it's also important to make certain that you have some warranty right given to you by the dealer (not eBay, but the actual seller) that the autographed collectible you want to buy is the real deal.

And, if someone tries to sell you a prize fighter's championship belts, you might want to hold out for proof that the champ really wants to sell.


delaware history quiz answer

 
Delaware began using mechanical voting machines instead of paper...in 1954. Please Florida, get a clue. In 1996, we made the next leap forward by being the first in the nation to use all electronic voting machines.


K 19

 
We saw K-19 last night. It was a good movie, but certainly not a comedy. Kind of a downer, actually. I liked the acting and the overall effect. It helped me to explain the cold war to my son. But the Irish accent on the Russian sub commander was a little distracting, even in English.


school vouchers in florida

 
A Florida Judge ruled today that Florida's constitution prohibits the use of vouchers to pay for private religious schools. His holding was based upon the section of the state constitution which requires that "no state money can aid any church or religious institution."

A state constitution can offer more protections than the federal constitution. The Judge decided that citizens' tax money couldn't be spent in a manner that strays from the more explicit limitations defined in the Florida Constitution. Don't know exactly why, but this decision made me happy that Delaware's Legislators acted to add freedom of speech to the Delaware Constitution this year. Not that I expect anything to abridge the federal right to expression. I'm just glad that we have a state-based right also.


smell the coffee

 
Seventh and King Street, in Wilmington, Delaware -- 1900
From Captured in Time: A Photographic History of Delaware

I read on Metafilter about an effort in the State of Washington to start an initiative taxing expresso on behalf of childcare programs. The movement has gathered 18,000 signatures so far. I also ran across an article about Berkeley banning all coffee except for fair trade coffee. I found myself drawn back to the Initiative and Referendum Insitute's page. The Insitute's sister site, Ballot Watch keeps track of different initiatives and referendums in a number of states. The Washington effort hasn't made it on the Ballot Watch site, presumably because the petition hasn't been turned in yet. The Berkely initiative is a municipal action, and it's not included either.

I did however locate this initiative in California, which would bring Las Vegas or Atlantic City style gambling to California. Of course, that effort seems to be going on in many places in the US. I hope that the efforts to tax coffee don't turn into a similar trend.


Monday, August 05, 2002

delaware history quiz answer

 
What antislavery newspaper was founded in 1854 by Delawarean Mary Ann Shadd Cary? -- The Provincial Freedman. (and more)


Delaware history quiz answer

 
J. Caleb Boggs -- Soldier; U.S. Representative; Governor; U.S. Senator.

Who is this Man?


hello florida

 
What year did Delaware begin using voting machines instead of paper ballots?


Sunday, August 04, 2002

edison fears hidden perils of the x-rays

 
How, exactly, do we find out things like when it was discovered that x-rays were bad for us? Are we losing invaluable resources by letting old newspapers disappear in landfill sites? The story Edison Fears Hidden Perils of the X-Rays is a New York World article from 1903, brought to us online from the American Newspaper Repository. (via metafilter)


corporate accountability law

 
What impact will the corporate accountability law signed by President Bush last week have on incorporations in Delaware? That's a question some people around the First State are asking. Will the auditing requirements be the first step towards a national incorporation system? Will Congress act again to preempt other areas of the law that have traditionally been controlled by the states? A nationwide system is unlikely for a number of reasons, including that many large businesses would be against such a system, and it would be a nightmare to administrate a transfer from state control to federal supervision. But, it does have us asking some serious questions here in Delaware.


delawarean in baseball

 
It wasn't too long ago that Kevin Mench was sending baseballs into orbit from Delaware. Now he is raising a ruckas in Texas. There are a few major leaguers from Delaware, but none of them have caught the attention of fans in quite they way that Kevin Mench has in Arlington.

Maybe I'm being selfish, and want to see a Delawarean succeed the way the Kevin Mench is beginning to for the Rangers, but I'm hoping that the daily talks scheduled next week between players representatives and owners can keep a strike from happening, and give this Delaware native the chance to turn Texas into a launching pad.








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