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, October 05, 2002

Law Clerk Remembrances

 
Law clerks sometimes have access to a side of a judge that few of us ever see. I ran across two publications today that view Supreme Court Justices from the perspective of someone who clerked for them. These aren't modern memories, but rather ones that date back to the Court of the 1930s. One is a memorandum about clerking for Harlan Fiske Stone in 1934. The other is a book about clerking for James C. McReynolds in 1936. The job titles are the same, but the experiences of each writer seems very different.


Bots Bad at Law Enforcement

 
Glenn Reynolds' article at Fox News, Stop, in the Name of 'Bots , judges the increasingly human-free efforts to police peoples' activities, from red-light cameras to software programs that search peoples' hard drives for files infringing on copyright. His verdict? I'd say he finds the human directors of those efforts guilty of incompetence, and failure to take personal responsibility for the actions of their machinery.


West Memphis Three

 
I was unfamiliar with the West Memphis Three until I came across a book review this morning entitled The facts of a dark fairy tale. The story is one about three eight-year old boys who were kidnapped and murdered, and three teenaged boys who were convicted of the crimes. A synopsis of the case, from a web site dedicated to helping Free the West Memphis Three presents a chilling portrait of what may have happened.


Supreme (Court) Blogging at SCOTUSBlog

 
The US Supreme Court starts its next term next week. The SCOTUSBlog is from the firm of Goldstein & Howe, P.C., and started on October 1st. It looks like a very promising source of information regarding the actions of the United States Supreme Court.

I found a link to the site from this thread on Metafilter, in which Sam Heldman gives his thoughts on the upcoming term of the Court. His blog, Ignatz, also contains some great insights to the workings of the Court. His predictions about how the Court may rule on certain cases is worth checking out.


Friday, October 04, 2002

State Class Actions

 
An interesting editorial on the pages of the Wilmington News Journal looks at Delaware Attorney General M. Jane Brady, and her membership in the Republican Attorneys General Association (RAGA). It appears that she was a past chair of the organization from her biography on the Delaware Department of Justice web site. The column tells us that RAGA is "philosophically opposed to class-action lawsuits against any industry."

I confess that I was a little surprised to see that Delaware was one of the states which took part in a class action suit against the Recording Industry. The case settled a couple of days ago. Hearing that Delaware was involved in that litigation, the thought struck me that Delaware hadn't gotten involved in some of the other class action suits brought by Attorneys General from other states. From the editorial:
Besides not joining the tobacco suit, Brady stayed out of class actions against magazine sweepstakes companies and suits against Microsoft, Enron and WorldCom. The latter two companies' shenanigans cost the state employees' pension fund more than $3 million.
I'm not quite sure what to make of the editorial.

A couple of articles that I found on the web about RAGA don't help much. One is from the Christian Science Monitor in July of 2000, called New consumer watchdog on duty, and it seems to portray RAGA in a positive way. On the other hand, the author of an article referred to in the News Journal editorial, Attorneys General for Sale?, presents the group in a negative manner.

Maybe the editorial will prompt a response from our Attorney General in which she explains more about the RAGA and its purposes and goals.


$28 Billion in Punitive Damages Awarded Against Philip Morris

 
A California jury awarded a plaintiff $28 billion in punitive damages today, in a suit against Philip Morris Inc., for fraud and negligence. The plaintiff was diagnosed with lung cancer last year, which has since spread to her liver. This is the largest individual jury award to a plaintiff in a suit against a tobacco company. The largest amount awarded previously to an individual in a tobacco case was $3 billion, later reduced by the court to $100 million.

The Tobacco Control Resource Center (TBRC) is run by the Tobacco Products Liability Project (TPLR), and has an interesting look at the background of the case:
Philip Morris employed a new defense strategy in this case. Rather than presenting many expert and fact witnesses, the company only called a single witness in its defense. During the punitive damages phase of the trial, Philip Morris' attorney, Peter Bleakley, essentially told the jury that, while the company might have misbehaved in the past, the company is now so closely monitored that deterrence, in the form of punitive damages, was unnecessary. The jury obviously disagreed.
The TBRC is located at Northeastern University School of Law, and provides information about a number of other individual and class-action lawsuits against the tobacco industry. The TPLR also has a special report on the case in their latest issue of Tobacco on Trial, which also links to the complaint in the case.

The Philip Morris web site presents information on health issues involved with smoking. They also have a page stating their position relating to government regulation and litigation.


Internet Safety for Children, and Others

 
I recently observed one of our children....Oops, I mean one independent child who happens to reside at and eat at our home... surfing a website with which I was not familiar. I made sure that I was comfortable with the content and quality of that site. It has heightened my sense of awareness even further, with respect to internet safety. So I searched for and found a child friendly internet safety site, with additional links. It is a good start.


Thursday, October 03, 2002

Access to Court's Records

 


At some point in the future, it may be possible to look at criminal case information online in Delaware. A lot of decisions need to be made along the way before that happens. A Superior Court Judge recently ruled to provide some information to the Wilmington News Journal. The Judge ordered that information should be released, but also determined that certain types of information should not be provided to the newspaper. The News Journal has been trying to gain access to this type of information for a number of years, to try to analyse how effectively Delaware's criminal justice system has been operating.


South Central Pennsylvania

 
my sister, father, and mother

My father was presented with a lifetime achievement award by the Society of Plastics Engineers at a dinner last night in York, Pennsylvania. I joined him and my mother and sister at the dinner (they are the ones looking towards you, and that's not me on the left). He's been in that industry for almost as many years as I've been alive. When I was growing up, I didn't understand that many of the things that he and his co-workers were doing were revolutionizing the plastics industry. But, his biggest accomplishment always seemed to me that he treated his co-workers, vendors and customers with integrity and class. He has made a lot of friendships in the industry, and it was great to be part of the celebration. Congratulations, Dad!

South-central and south-eastern Pennslvania are beautiful areas. I couldn't help myself but stop a number of times along my return trip this afternoon. At one point, I pulled off the road to snap pictures of some ponies, when their owner surprised my by driving his buggy past.

amish traveler in a buggy on route 896 in southern Pennsylvania

It was an enjoyable trip, and it was great to spend some time with my family. They're even catching on this to blogging stuff.


Wednesday, October 02, 2002

Price Fixing Settlement

 
A news.com article, Labels pay to settle price-fixing suit, tells of a settlement in a case against record labels:
Under the agreement, record labels including Bertelsmann Music Group, EMI Music Distribution, Warner-Elektra-Atlantic, Sony Music Entertainment and Universal Music Group, along with retailers Transworld Entertainment, Tower Records and Musicland Stores, will pay consumers $67.3 million in cash and donate $75.7 million worth of CDs to charities and schools. However, the labels did not admit any wrongdoing.
The settlement involved a suit brought by State Attorneys General from 43 States, according to this report.

From the press release issued by Delaware's Attorney General, Jane Brady:
Attorney General Brady will designate how Delaware's cash portion of the settlement will be distributed. It is expected that she will direct donations, including approximately 16,000 CDs valued at $137,000, to be made to schools, libraries and other institutions. Brady commented, "This lawsuit and settlement demonstrate our commitment to halting corporate misconduct which causes our citizens to pay higher prices for goods, and distorts our free market economy."

Consumers will be able to claim single rebate payments, by telephone, mail or on-line, in a process to be announced in major publications at a later date. It is estimated that some 76 million Americans were impacted by this price fixing scheme.
For some reason, I'm guessing that the amount of each rebate might be just enough money to buy one CD.


Tuesday, October 01, 2002

Now You See It, Now You Don't

 
A bill to postphone royalty payments by web broadcasters for six months has been shelved as quickly as it arose. The Bill was introduced (pdf) on September 26th. It was withdrawn in response to the news that an agreement might be reached between the recording industry and webcasters by Friday. Rumor has it that smaller internet operations would pay a smaller rate than proposed under the present royalty terms.


Cranky Counselor

 
In today's Wall Street Journal, the Cranky Consumer Column by Charles Passy, s about legal help lines. The WSJ staff tested 5 different providers with the same two legal questions, and then ran those questions and responses by law professors from Villanova University. The results were published in a chart, along with the comments of the reporters and a summary of the comments by the law professors.

The theme of the article was that it isn't really necessary to meet with (pay) an attorney for many of our routine legal battles. It seemed that the average time spent by the attorneys on these questions was about 15 minutes. Roughly, the reporters paid an average of $30 per review. Only a minority of the attorneys who responded asked to see the documents regarding that matter. And one of the attorneys was not even licensed in the relevant State.

The reporters preferred the service that they felt was the easiest to use, even though the law professors felt that he was unethical. The law professors favored a service that the reporters disliked. The reporters disliked him because they thought the advice too vague to be helpful.

Every day I get calls that start off like... "I just have a simple question. I don't need to meet with an attorney, I just need an answer to my simple question." Those persons, just like the WSJ reporters, just don't get it. There are very rarely any "simple questions".

Even the most simple case can turn one way or the other based upon different facts. The world isn't black and white; there is a spectrum, and there are dimensions that intersect with the spectrum. These facts can only be brought out properly in a dialog, with questions and answers.

When documents are involved, it is critical that the attorney read the documents. This takes time. Time is money. I have conducted interviews that took us 20 minutes, and I have done them in 3 hours. I have conducted initial consultations for free, and I have done them for $2500. Every case is different. That is why you use an attorney instead of a vending machine.

Sometimes the most accurate advice is vague. It may not be what the consumer is asking for, but it may be the truth. Sometimes clients are displeased because they don't get the answer that they expect. That is part of the attorney's responsibility . . . to tell the client the truth even if it is not what the client wants to hear.

In the end, the WSJ test resulted in paying for interviews that may have been available for free in an attorney's office. The reviews were skimpy and insufficient to properly answer the questions of the client so as to give the client sufficient information with which to make a decision about how to proceed. And so what are they selling? Both the help-lines and the WSJ reporter are selling the consumer short. They are selling an attitude. They are selling an illusion.

It is dangerous and misleading to the consumer. Just look at the reporters' conclusions. They chose the one the law professors shunned. They chose him because he went along with the illusion. Why bother having the law professors involved at all if you are going to conclude something different? And why bother having an attorney review your legal matter if you have already made up your mind that you don't need one? Who are you really hurting?

I agree that there are many types of problems and cases where you don't need a lawyer. Fine. Our feelings aren't hurt. Handle it on your own. But splitting the difference and confusing the issue as to whether you have a lawyer or not, and approaching a legal review of a matter like you are ordering a hamburger at McDonald's hurts everyone.

By the way, I participate in some legal help-line programs. I treat each case through these programs just like I treat a client across the table from me. I ask questions and review documents. Sometimes a client is satisfied. Such is my profession.

Way by the way, I didn't include the link to the WSJ article because they have this requirement that you register and all of that. Bill may come along and clean up my mess here with some high quality research links, like he does (he's really good at that). In the mean time, I have to go back to making a living.


Corporate Responsibility

 
You may or may not agree with the issues raised in Yes Magazine's article 12 things to do now about corporations, but many of them are interesting and worth thinking about. The magazine's tagline is "A Journal of Positive Futures", and they include a resource guide and discussion guide with each issue.


Criticism of Bill Unfairly Labeled?

 
It's not a positive sign when legislators start attacking criticism of a bill by stating that its critics are engaged in scaremongering. That's the type of language coming out of Capitol Hill regarding a bill that would allow copyright holders to use self help to try to defeat people from infringing upon their copyrighted works on the web:
During the first congressional hearing on the bill, Representatives Howard Berman, and Howard Coble denounced critics' "scare tactics" and said their proposal was a modest plan that had been carefully crafted to reduce piracy on peer-to-peer networks.

"There have been some truly outrageous attacks," Berman said. "I never expected that anyone would challenge the underlying premise of the bill, namely that copyrighted owners should be able to use reasonable, limited measures to thwart peer-to-peer piracy".
It might be time for these legislators to take a step or two back and think objectively about what they are doing, and why there is so much criticism to this bill, rather than labeling the reaction as "scaremongering." A plain reading interpretation of the bill in question (pdf) may cause a lot of people to voice their concerns. Maybe those voices shouldn't be dismissed so quickly in a representative government.


California Law Contest

 
I'm firmly against the idea of the senseless proliferation of new laws. We could legislate every action we take if we're not careful. Having said that, a contest held in California recently holds a certain appeal. Palo Alto Assemblyman Joe Simitian held a "There ought to be a law" contest, and three ideas from that contest were passed into state law yesterday:
Simitian picked the three winners from 100 entries. The inspiration for the contest came after his first year in the Legislature, when he spent a lot of time talking with representatives of special-interest groups and ``far too little time with the people of my district.''

He joked Friday that the three bills he introduced on behalf of constituents had a better record -- three for three -- for getting signed by the governor than his own ideas.
In smaller text under the article is a note stating that the Assemblyman is holding a second round of the contest, and that entries should be received by October 18, 2002. This seems like a good idea. I wonder if anyone from Delaware would be willing to give something similar a try.


Maryland Anti-Spam Law

 
A new anti-spam law goes into effect in Maryland today. This makes 26 states that have some type of law in place that tries to limit unsolicited commercial e-mail. These statistics from the article are a little staggering:
U.S. consumers received more than 140 billion spam messages in 2001, according to a report last week by Jupiter Research. Spam accounted for 46 percent of the 261 billion e-mail messages sent last year. An estimated 645 billion spam e-mail messages will be delivered by 2007, Jupiter said in its report.
Someone mentioned on a web design forum I visited earlier today that they receive 200 spam messages an hour. That's an even more staggering statistic.


Sunday, September 29, 2002

Spam Vigilantes

 
An article came out a couple of weeks ago suggesting an idea for handling spam that sounds like it just might work.

It's an opinion article from Larry Lessig called A Bounty on Spammers. The basic plan is as follows:
Imagine a law that had two parts?a labeling part and a bounty part. Part A says that any unsolicited commercial e-mail must include in its subject line the tag [ADV:]. Part B says that the first person to track down a spammer violating the labeling requirement will, upon providing proof to the Federal Trade Commission, be entitled to $10,000 to be paid by the spammer.
The first part would make it easy to filter unwanted emails.

The second part would allow people who are good at identifying the source of spam to make a profit at it. A lot of these people are working on setting up blocklists and filtering systems that every once in a while cause more harm than good. It may just also make the first part actually work.

Good idea? Bad idea?

If you said good, then what about vigilantes acting in other places on the net? Like the recording industry? Lessig addresses their use of self-help also.








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