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, September 28, 2002

Bottle Deposit Laws

 
This is not an especially earth-shaking topic. On a scale of sexiness, it probably ranks really low. As an ethical concern, there are matters like what to do with radioactive waste and other hazardous materials that are probably more pressing. This is one of those mundane subjects that we probably don't really give much thought. Every one of us buys food and beverages, consumes the products, and throws away the containers.

Our trash can be found in landfills, along public and private lands, and maybe in recycling centers. Some materials are easier to recycle than others, and there have been local initiatives in many places to try to make that recycling happen. Bottle deposit bills have seen some success in getting people to return some of these more easily recycled materials to manufacturers. Should the practice be more widespread? Should the federal goverment get involved?

In twelve states in the US, you pay extra money as a deposit when you buy some beverages in supermarkets and convenience stores. A story in today's Boston Globe called Fewer find state bottle law is worth the nickel takes a look at the process in Massachusetts. Frankly, I'm a little upset over what they are doing with unclaimed deposits:
In 1990, the Legislature passed a law directing that all unclaimed bottle and can deposits be turned over to the state. The state's initial take was $8 million, but with Massachusetts residents now failing to redeem nearly one out of every three containers, the so-called Clean Environment Fund took in more than $37 million last year. This year most of that money has gone to plug budget gaps instead of recycling efforts.
The justification for a bottle deposit is to reduce pollution, and not to act as a tax on people who drink beer and soft drinks. If that money went to address environmental issues, I would probably feel better about the state collecting those unclaimed deposits.

There are grass roots movements to get bottle deposit laws enacted in other states, such as Virginia and Alabama. Some New Yorkers are pushing for an expansion in the types of bottles that are covered under New York's laws. People in Vermont are asking for an increase in the amount of the deposit there, which has remained at a nickle since the introduction of the law in 1972. The US House is looking at a bill to implement a nation wide system for recycling bottles. The legislation which was introduced this summer is the National Beverage Producer Responsibility Act of 2002 (pdf), which was presented to the Subcommittee on Environment and Hazardous Materials on July 29th.

There are also consumer advocacy groups like the GrassRoots Recycling Network sharing information about bottle bills and corporate responsibility for using recycled materials. One of the things they state is that:
The beverage industry knows what works: the 10 states with ?bottle bills? requiring deposit-return systems recycled more containers than the other 40 states put together.
They have some good links for more information on the national bill. There are some interesting things going on with the bill, like the ability of manufacturers to opt-out of the deposit requirement if they can show that 80 percent of a particular brand is being recycled.

We have a bottle bill in Delaware that returns five cents for each bottle redeemed. Is that too little? Is that too much? Should the law be expanded beyond carbonated products and beer to some of the newer popular beverages such as fruit drinks and bottled water? Does a bottle bill make a difference? Should corporations play more of a part in the post-consumer usage of the containers their products are sold within, and governments less? Should the federal law pre-empt state laws?

Yes, it's a pretty mundane topic. But it involves a lot of bottles. And, post consumer recycling can make a difference.


Copyright Law for Ezines

 
Brian Alt, over at ezine-tips, has a nice multiple part introduction to copyright law for ezines, that's worth a look if you publish an ezine. While he's not a lawyer, he does have experience with the form, and does a very nice job of explaining fundamentals from a practical stance. Here are the parts: Introduction, Part 1, Part 2, Part 3.

[A similar article, called Copyright For The Webmaster, covers many of the same aspects of copyright on the web as the ezine article, but adds a little more about javascripts and digital watermarks.]


Personality Traits by Birth Order

 
Do you try to understand what makes people tick? I do. I have a number of theories, like my favorite, the caveman theory. In today's News Journal there is an article about another theory.... personality trait by birth order. I find it to be intriguing. Maybe you will too.


Friday, September 27, 2002

We DO Police Our Own

 
Or is it over-policing. I go back and forth on the issue. Here is an attorney who is immediately suspended from practice (presumably cannot now receive his normal paycheck) although the constitution declares that he is at this moment in time innocent. I don't know the fellow. I am making no comment about the validity of the charges. I can see where the Supreme Court wants to protect the integrity of the profession. I am with that.

But how does ignoring the constitutional theory of being innocent until proven guilty improve our ethical posture when we are sworn to support the constitution? Another reason for immediate suspension of attorneys is to protect the clients. I am way with that too. But as far as I can see from the news article, even if the allegations are true, it had nothing to do with clients or a fiduciary responsibility.

I just can't fall off of the fence on this one. Someone give me a shove.


Thursday, September 26, 2002

Inquiry Regarding the Ethics of Attorney Specialization

 
This morning, a person made an inquiry to my firm that I will display here, as I feel that it might be helpful to others:

Inquiry: Is it legal and/or ethical for an attorney to take/accept a case that is not within his field of specialization?

Attorney Response:

First, we have to be careful about the word ?specialization?. In Delaware, there is no mechanism for an attorney to be certified as a ?specialist? except in some rare circumstances. What we should say is??our usual area of practice?. Or some such other language.

The official comment to the Delaware Rule of Professional Conduct (the attorney ethics rules) 1.1 clearly sets out that an attorney may undertake a case with which she has absolutely no experience. What that attorney must do, however, is take the necessary steps to bring herself up to speed so that she can provide competent legal advice.

Having said that, it is something that should be monitored, and applied with caution and planning.


Automated Parking at the New Courthouse Understands Welsh?

 
The new courthouse in Wilmington has an automated parking payment system. When you leave, you can use a machine to pay your parking fare. It's a pretty convenient setup, if a bit on the expensive side for Delaware. The machines can be operated in a couple of languages other than English. But the choices of languages is somewhat perplexing. Spanish makes sense, as one of the fastest growing languages in the United States. But Welsh?

I wanted to make certain that I wasn't missing something, so I did a little research on the net. I'm unaware of a large contingent of people from Wales in Delaware, even though there is a Welsh Society of Delaware. It's possible that the machines were manufactured in Wales, and the choice is a default setting that hasn't been changed. So, if you need to visit the new courthouse, be careful about which buttons you push when you're paying for parking. Welsh just doesn't look like an easy language to learn or understand.


Foreign Intelligence Surveillance Court

 
You may or may not have been following the controversy regarding America's top secret court, the Foreign Intelligence Surveillance Court (FISC). The Court is used by the government to get permission for wire taps and other surveillance measures when foreign intelligence issues arise. If you haven't heard of it, that's not surprising. They've only released one opinion that wasn't classified. And that document was disclosed to the public by the House Judiciary Committee last month during an inquiry into efforts by the Department of Justice and the FBI to combat terrorism, while still protecting the rights of citizens.

The government has appealed that decision of the Court, and a court that had never met before was called into action to review the decision of the FISC. The Foreign Intelligence Surveillance Court of Review will make a ruling based upon that appeal. The Electronic Privacy Information Center (EPIC) has joined with the Center for National Security Studies (CNSS), and the Electronic Frontier Foundation (EFF) to file an amicus brief (pdf) with the Review Court, to convince them to affirm the decision that the FISC made. From the brief:
In the court below, the government sought a judicial ruling that FISA can be used where the primary or even exclusive purpose of surveillance is to gather evidence of criminal conduct. Appropriately, the Foreign Intelligence Surveillance Court (?FISC?) rejected the government?s attempt to invoke FISA for electronic surveillance that for over thirty years has been governed by an entirely different statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (?Title III?), 18 U.S.C. 2510 et seq., which applies to wiretaps in criminal investigations. As the FISC noted, the government?s construction of FISA would allow an end-run around ordinary Fourth Amendment requirements. Neither the text of FISA as amended by the USA PATRIOT Act (?Patriot Act?), Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001), nor twenty years of judicial interpretation supports this result. While FISA now allows coordination, consultation and information sharing between intelligence and law enforcement officials, it does not authorize surveillance whose primary or exclusive purpose is law enforcement. Indeed, expanding the scope of secret surveillance under FISA would violate the Fourth Amendment and the Due Process guarantees of the Fifth Amendment, and would jeopardize the First Amendment right to engage in lawful public dissent.
If the Department of Justice needs surveillance for a law enforcement investigation, they can turn to courts other than the FISC with requests for warrants authorizing the use of such equipment. The standard a judge reviews such a request under would be one of probable cause. The FISC requires a lesser standard -- a less rigorous burden to meet than probable cause.

How will the Review Court rule? Hopefully, they will support the decision of the FISC. Regardless of how they decide, chances are good that an appeal to the US Supreme Court will follow.


Privacy Disclosure Notices Under Gramm-Leach-Bliley

 
A privacy law passed in 1999, called the Gramm-Leach-Bliley Act, requires banks and other financial institutions to send out notices informing their clients how information gathered about them will be shared with affiliates and other third parties. The Federal Trade Commission (FTC) is insisting that lawyers are also required under that law to send such privacy disclaimer notices to their clients.

The American Bar Association (ABA) has brought a law suit against the FTC to question the authority of the agency to govern confidential communications between lawyers and their clients:
"This federal statute that was intended to regulate banks is being used to muddy the waters with respect to the simple rules governing attorney-client confidentiality -- rules which virtually everybody understands," said ABA president Alfred P. Carlton Jr.
Every state already has extensive rules regarding attorney-client communications.


Tuesday, September 24, 2002

Paid Family Leave in California

 
California has made it official. The bill authorizing up to twelve weeks a year of paid family leave was signed on Monday. One reaction to the law:
"This is one more burden that a California employer has that no other employer in the country has to share in that cost," said Allan Zaremberg of the California Chamber of Commerce.
I have the feeling that other states may follow suit, making that complaint a short-lived one. When I last checked, over twenty other states had similar bills being discussed by legislators.


South Dakota Reporters Look into Open Records

 
Just how open are public records to the public? Should someone have to identify themselves before gaining access to records? There's no denying that closed government proceedings are potentially very harmful. But, how accessible should records be? The press in South Dakota conducted a survey of county tax records, city and school records, and information gathered by law enforcement:
Reporters, editors and other staff of South Dakota's 11 daily newspapers and The Associated Press visited city, county and school offices in all county seats on June 26 to check whether records are available to the public.

''We ran a test. Does it work? If Joe Blow comes off the street to get information - a salary or property tax information, whatever it might be - is the public able to access that information?'' said Kim Dohrer, editor of The Daily Republic in Mitchell and president of the South Dakota Associated Press Managing Editors.
The information chosen wasn't selected because it was newsworthy. The news was whether the information would be given at all. And, if it was, what procedures someone from the public would have to go through to receive it. Because of that, the surveyors didn't identify themselves as reporters.

The results of the survey appear to be more positive than negative. But, in an interesting twist, a reporter who was to take part in the survey developed a reason to seek out records a few days before the survey started. Her broken-down car was stuck on the side of a road when it was hit by someone who was later found to be driving while intoxicated. Her endeavors to gain access to information were much more difficult. In an article entitled What records can mean to a crime victim, the reporter points to the type of difficulties that the surveyors might not have discovered. How much of a right to information does a victim have?


 
federal death penalty ruling

For the second time this year, a Federal District Court Judge has found the death penalty unconstitutional. Judge William Sessions' decision arrives at that ruling in a unique manner, taking a look at the presentation of charges in an indictment to the grand jury. The opinion (pdf) considers the rights of the defendant during the grand jury phase of a capital case.

The earlier federal District Court decision this year declared that capital punishment itself is unconstitutional. And, Arizona vs. Ring, before the US Supreme Court a few months ago, involved the sentencing aspect of a death penalty case. This case is distinquished from those because it looks at what might be required during grand jury proceedings:
Fell's lawyer, Alexander Bunin, called the ruling a landmark that could jeopardize cases against every defendant facing the death penalty, including that of Sept. 11 conspiracy suspect Zacarias Moussaoui.

Paul Martinek, editor of Lawyers Weekly USA, said a higher court will have to agree with Sessions before that happens.

But Martinek added, "The intellectual implications for influencing what other judges might do, potentially influencing what the Second Circuit (Court of Appeals) and maybe the Supreme Court might do, are pretty big. It's a new idea about how to challenge the federal death penalty.''
Other federal judges in Pennsylvania and Virginia have upheld the constitutionality of the Federal Death Penalty Act earlier this year.


 
Delaware Legislature teams up with DSBA

In a characteristicly cooperative manner, the Delaware House of Representatives, in House Resolution 91 (pdf), has formed a committee to team up with the Trusts and Estates Section of the Delaware State Bar Association to review our Trust and Estate laws, and to keep them current for all Delaware Trust entities. It is this type of annual maintenance and attention to detail that keeps Delaware Trust and Corporate Law on the cutting edge.


 
Enron for some, opportunity for others

A Canadian firm seeks to boost their ownership in Alliance natural gas pipeline production which runs from Ft. St. John, B.C. to Chicago. The Enron debacle has lowered prices to make this expanding acquisition attractive.


Monday, September 23, 2002

 
silence is copyrighted?

Great googly moogly. If the concept of copyrighting a minute of silence is a valid legal process, am I not liable for damages if I miss a day on my blog? This British lawsuit settled out of court, in 6 figures, for copying silence. Splain this to me, Lucy.


Sunday, September 22, 2002

 
jury nullification

The New York Times includes some interesting commentary on the subject of jury nullification (reg. req'd) in an article about a possible amendment to South Dakota's constitution.


 
What are we really doing here, anyway?

Sometimes we reach out over the internet for answers to who we are and where we are going. I typed the title of this blog into a google search, and uncovered this unusual site. It didn't give me any answers but it helped me to move on.








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