TGIS: Thank God It's Schadenfreude! (33)

This week's joy in the misfortune of others comes courtesy of The Register (from Monday, September 26; link good at time of posting):

The crew of a fishing boat was whiling away a few lonely hours on the high seas watching a saucy film, not realising that they had left the radio transmitting on the emergency channel, thus blocking all Mayday radio comms for a 30-mile radius.

As the salty seamen settled down to watch Crash - a tale involving people who find car crashes more erotic than do most - they managed to wedge the emergency radio channel open. Their chosen entertainment for the evening was thus broadcast across the airwaves for hours before coastguards dispatched a life boat to alert the men to their error, the BBC reports.

The coastguard was also in contact with Channel Four, and asked the channel to broadcast a message to the sailors over the film. The lifeboat reached the crew just in time to prevent news of the cock-up being broadcast live to the nation.

[Previous TGIS]

Time to Move On

MoveOn.org, a consortium of far-left political advocacy organizations, was founded in 1998 in response to the impeachment of President Clinton and in support of the former President. From their website:

MoveOn.org Civic Action was started by Joan Blades and Wes Boyd, two Silicon Valley entrepreneurs. Although neither had experience in politics, they shared deep frustration with the partisan warfare in Washington D.C. and the ridiculous waste of our nation's focus at the time of the impeachment mess. On September 18th 1998, they launched an online petition to "Censure President Clinton and Move On to Pressing Issues Facing the Nation."

The organization has most recently focused its efforts on opposing the nomination of the new Chief Justice, John Roberts, organizing "hundreds of thousands of supporters . . . at 1,627 vigils in all 50 states and the District of Columbia" in support of Iraq War opponent and anti-Israel agitator Cindy Sheehan, and otherwise virulently opposing anything associated with President Bush. A year or so ago, they published a book about their methods, MoveOn's 50 Ways to Love Your Country. They call this love? Some wouldn't:

There is nothing patriotic about hating your country, or pretending that you love your country but despise your government.

Which fascist Halliburton lackey dared to say that the highest form of patriotism is not loudly denouncing your country's every action? Bill Clinton did, in his 1995 commencement address at Michigan State University (quoted by Joe Klein in his sympathetic portrait of the Clinton years, The Natural: The Misunderstood Presidency of Bill Clinton).

It's time to move on.

Critical Mass(achusetts) for the $100 Laptop

I suspected yesterday that I was not alone in seeing the first-world possibilities for the $100 laptop being designed for the developing world; The Economist (subscription required) reports:

The idea is as audacious as it altruistic: provide a personal laptop computer to every schoolchild—particularly in the poorest parts of the world. The first step to making that happen is whittling the price down to $100. And that is the goal of a group of American techno-gurus led by Nicholas Negroponte, the founder of the fabled MIT Media Lab.

. . . .

But good news for the world's poor, may not be such great news for the world's computer manufacturers. The new machine is not simply of interest in the developing world. On September 22nd, Mitt Romney, the governor of Massachusetts, said the state should purchase one for every secondary-school student, when they become available.

Sales to schools are just one way in which the $100 laptop could change the computer industry more broadly. By depressing prices and fuelling the trend for "good-enough computing", where customers upgrade less often, it could eventually put pressure on the world's biggest PC-makers.

The $100 laptop will not be a speed demon by any stretch -- the anticipated processor is no great shakes and the storage will be flash-based, which is very slow relative to hard drive-based storage. The corners cut throughout mean that the $100 laptop will not be a desktop replacement, but so what? We didn't need the post-it note to replace the legal pad, just to fill a need.

"Good-enough computing" is long overdue. It's great that I can walk into Costco on my way home and buy an inexpensive but top-of-the-line computer; it'll be even better when I can go there and buy a shink-wrapped eight-pack of "good-enough" computers to scatter around my house.

Cheap Enough to Give Away or Lose? Priceless.

Although this concept is geared toward the developing world, the $100 laptop would be heartily welcomed in my mostly-developed one as well:

The design calls for a laptop with 500 MHz processor, 1GB memory, four USB ports and a dual-mode display usable in full-color or in black-and-white, sunlight-readable mode. Power will be provided either via conventional electric current, batteries, or via a windup crank attached to the side of the notebook for usage in remote regions without a power grid. The systems will be WiFi-enabled and able to connect via cellular networks, as well as including built-in mesh networking allowing multiple machines to share a single internet connection.

I can think of more than a few battery-challenged travelers who would probably pay $100 just to have a cranked generator built into their notebooks just in case. I know I'd prefer more built-in USB ports on my laptops, rather than legacy items like parallel and serial ports. At a hundred bones per networked computer, I could afford to have one in every room in the house, stashed in drawers here and there, as ubiquitous as scratchpaper and pens are today.

What's begun as an altruistic endeavor might just have a few benefits which "trickle upward". Who would have guessed that the impoverished developing world would get the good toys?

[UPDATE]

A Capitalist Without a Fortune -- am I Willing but not Able?

The Politics Test has been floating around the blogosphere for the last couple of days or so. My classification was initially some breed of Republican, which didn't seem right -- I probably hit a wrong button in there somewhere. The second go-around seems more accurate:

You are a Social Moderate (56% permissive) and an... Economic Conservative (85% permissive) You are best described as a: Capitalist Link: The Politics Test on Ok Cupid Also: The OkCupid Dating Persona Test

Now if only these fine folks could develop a judicial philosophy test, those tedious confirmation hearings could be reduced to around three minutes. Well, that plus 97 hours of verbal masturbation by our Senatorial solons.

Still Not Paddling

Walter Olson, of the Manhattan Institute and the Overlawyered blog, has an opinion piece in today's Wall Street Journal (subscription required) concerning the possible invalidation of flood exclusion clauses in Mississippi insurance policies, which I discussed last week:

The flood exclusions, Mr. Hood asserts, were hidden "in the fine print" of coastal residents' policies. If so, it was some of the most publicized fine print in history. "Homeowner's insurance doesn't cover flood damage" -- blares the warning on one of the federal government's own consumer-affairs Web sites. In fact, the well-known exclusion dates back decades and has been generally respected by courts.

"Unconscionable"? Contrary to "public policy"? The exclusion prevails in all 50 states, including those states -- Mississippi is one -- where regulators must okay the offering of new standard policies. Mississippi's insurance authorities, like their counterparts elsewhere, had green-lighted the flood exclusion, amid little controversy.

Then there's the federally sponsored flood insurance program, which exists in large part because storm surge perils in hurricane country are considered too severe to insure commercially at politically palatable rates. For years, insurance agents and the government have urged property owners to buy that added coverage. But why should they bother, if the Hood/Scruggs arguments are to be taken seriously? Can't their ordinary homeowners' policies just be redefined retroactively as covering the risk?

. . . .

Mississippi insurance commissioner George Dale is already worried that as panicked insurers pull out of the state, first-time customers -- such as construction contractors moving into the area -- will be among the earliest casualties: "Contractors got to have insurance; they can't build without insurance."

WSJ's editorialists add their own two cents:

As it is, insurers may be on the hook for $60 billion. Sticking them with flood damage could add another $15 billion to the tab, which would certainly send several insurers into bankruptcy.

Insurance companies that survived would have to assume that flood liabilities are now theirs to pay, regardless of the contracts they write. They'd then have to charge everyone in the region higher premiums -- by one estimate, as much as $500 a year -- to cover this flood risk. Or they could take the more rational option of fleeing a state where contracts aren't worth the paper they're written on.

In other words, Mr. Hood is guaranteeing that victims of the next hurricane will have even less financial protection than Katrina's. And he's complicating the entire reconstruction effort by raising the cost of insurance for the contractors, union workers, homeowners and businesses that are all going to need liability and/or property and casualty insurance before they rebuild. The attorney general is a Category 5 destructive force all by himself.

Fight the Power!

Blawg Review 25 offers a "protest edition" hosted by the Ambivalent Imbroglio blog this week and sticks it to The Man (no, not the Samuel Jackson-Eugene Levy buddy picture --it had enough problems already).

Each week, I advise you to read the submission guidelines and recommend a worthy law-related post you see in the coming week; it goes without saying that it's critical to hit "Send" once you've crafted that recommendation e-mail. Nevertheless, I neglected to do just that last Friday and, consequently, two excellent items relating to last week's 9th Circuit decision in Altera Corporation v. Clear Logic, Inc. are absent from this excellent issue -- Evan Brown at InternetCases.com has a good overview of the case itself, while Professor Mike Madison, guest blogging at Conglomerate, offers up some thoughts why licensing shouldn't be seen in purely contract terms and how a seeming equitable servitude may not be one after all.

I see that, according to its home page, Blawg Review is now "the official blog carnival for legal bloggers". It's official now, so accept no substitutes!

UPDATE: Thanks to the mysterious Blawg Review Editor, an incorrect link and a typo have been corrected.

Word of the Day: Snarge

It's a new one for me, at least. As Wired explains, "Bird Plus Plane Equals Snarge":

Each day, the Smithsonian Institution's Feather Identification Laboratory receives about a dozen packages from around the country, each containing tissue swabs from bird/plane collisions.

The lab's scientists have dubbed this bloody goo "snarge," and it is usually all that is left when bird meets plane. Scientists are analyzing snarge DNA to track airplane bird strikes, with the hope of decreasing hazardous collisions.

"It's bird ick," said Smithsonian snarge expert Carla Dove, who heads the lab. Technicians identify the snarge DNA using sequencing technology, then enter the sequences into a national database. Scientists can then tell what kinds of birds are commonly smashing into America's airplanes, something of intense interest to both the Federal Aviation Administration and the U.S. military.

A bird-strike expert named "Dove" heads the Feather Identification Laboratory? I suppose some of us are just destined for a particular occupation.

The article also contains these bonus factoids:

• "Jet engines must now be able to withstand the ingestion of an 8-pound waterfowl without failing (this is tested in the lab by firing a chicken from a cannon at point-blank range)."

• "'We've had frogs, turtles, snakes. We had a cat once that was struck at some high altitude,' said the Smithsonian's Dove. She says birds like hawks and herons will occasionally drop their quarries into oncoming planes. 'The other day we had a bird strike. We sent the sample to the DNA lab and it came back as rabbit. How do you explain to the FAA that we had a rabbit strike at 1,800 feet?'"

TGIS: Thank God It's Schadenfreude! (32)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Wednesday, September 21; link good at time of posting):

A DNA test shows that the wrong man has been paying child support to Amber Frey.

An attorney says Fresno, California, hairstylist Anthony Flores has been paying Frey $175 a month for nearly four years, for Frey's young daughter.

But he says the tests now show that little girl's father is actually Christopher Funch, the owner of Porky's Rib House in Fresno.

Frey was thrown into the national spotlight after it was learned that she was the mistress of now convicted murderer Scott Peterson during the time he killed his wife Laci in December of 2003.

[Previous TGIS]

How to be Successful in Litigation 101: Maintain a Consistent Legal Position

From Yesterday's San Francisco Chronicle:

The California Medical Association has withdrawn a controversial legal brief it filed supporting the rights of two doctors to argue that they could refuse on religious grounds to artificially inseminate a San Diego County lesbian.

The association is trying to file a new brief co-written by Kaiser Permanente lawyers that would argue almost the opposite. In it, they contend that neither Guadalupe Benitez's sexual orientation nor her marital status was medically relevant to whether her doctors were obliged to treat her.

"CMA does not condone invidious discrimination by physicians, including discrimination of patients based upon sexual orientation," the new brief states. "Further, CMA does not support a religious exemption to statutes prohibiting invidious discrimination."

But the clerk of the state's Fourth District Court of Appeal in San Diego has rejected the new document on the ground it was filed too late to be considered before oral arguments set for Oct. 11 over whether the doctors can claim a religious exemption in the case. Gay rights advocates plan to challenge the rejection of the new brief.

. . . .

"CMA continues to believe that the defendant physicians deserve a right to due process and a jury trial," [CMA CEO Jack] Lewin said in a statement released Tuesday. "However, it is clear that CMA's policy commitment to oppose any form of invidious discrimination had been so significantly confused and misrepresented, that it was in the best interest of CMA to withdraw the brief."

Attorneys and supporters of Benitez applauded the association's decision to withdraw the original brief.

They had criticized its contention that doctors have the right to argue in court that they can cite religious grounds in denying certain medical care to gays and lesbians, if that refusal was based on the patient's marital status.

"The CMA is affirming principles of nondiscrimination in health care that they have stood for for a long time," said Joel Ginsberg, executive director of the Gay and Lesbian Medical Association in San Francisco. "We are pleased to see them clarify their position and come out strongly against discrimination based on one's sexual orientation, gender identity or marital status."

Benitez's attorney said the medical association's initial brief was confusing.

"They've really abandoned the previous argument, and what's important is that this new brief is clear and understandable and consistent with the antidiscrimination policy that the California Medical Association and Kaiser Permanente have had for a long time," said Jennifer Pizer, senior counsel for the Western regional office of Lambda Legal, a group that specializes in gay and lesbian rights.

Don't you hate it when your carefully-worded and expertly-crafted legal filings say the exact opposite of your "policy commitment", the principles of nondiscrimination you have "stood for for a long time", and the antidiscrimination policy you "have had for a long time"? What's the civil procedure rules deadline to file a Motion for a Writ of Dumbassery?

Pardon My Lingua Franca

An interesting New York Times article explained yesterday that vulgar language is characteristic of "[e]very language, dialect or patois ever studied, living or dead, spoken by millions or by a small tribe":

In fact, said Guy Deutscher, a linguist at the University of Leiden in the Netherlands and the author of "The Unfolding of Language: An Evolutionary Tour of Mankind's Greatest Invention," the earliest writings, which date from 5,000 years ago, include their share of off-color descriptions of the human form and its ever-colorful functions. And the written record is merely a reflection of an oral tradition that Dr. Deutscher and many other psychologists and evolutionary linguists suspect dates from the rise of the human larynx, if not before.

Some researchers are so impressed by the depth and power of strong language that they are using it as a peephole into the architecture of the brain, as a means of probing the tangled, cryptic bonds between the newer, "higher" regions of the brain in charge of intellect, reason and planning, and the older, more "bestial" neural neighborhoods that give birth to our emotions.

. . . .

Researchers have also examined how words attain the status of forbidden speech and how the evolution of coarse language affects the smoother sheets of civil discourse stacked above it. They have found that what counts as taboo language in a given culture is often a mirror into that culture's fears and fixations.

"In some cultures, swear words are drawn mainly from sex and bodily functions, whereas in others, they're drawn mainly from the domain of religion," Dr. Deutscher said.

In societies where the purity and honor of women is of paramount importance, he said, "it's not surprising that many swear words are variations on the 'son of a whore' theme or refer graphically to the genitalia of the person's mother or sisters."

The very concept of a swear word or an oath originates from the profound importance that ancient cultures placed on swearing by the name of a god or gods. In ancient Babylon, swearing by the name of a god was meant to give absolute certainty against lying, Dr. Deutscher said, "and people believed that swearing falsely by a god would bring the terrible wrath of that god upon them." A warning against any abuse of the sacred oath is reflected in the biblical commandment that one must not "take the Lord's name in vain," and even today courtroom witnesses swear on the Bible that they are telling the whole truth and nothing but.

Among Christians, the stricture against taking the Lord's name in vain extended to casual allusions to God's son or the son's corporeal sufferings - no mention of the blood or the wounds or the body, and that goes for clever contractions, too. Nowadays, the phrase, "Oh, golly!" may be considered almost comically wholesome, but it was not always so. "Golly" is a compaction of "God's body" and, thus, was once a profanity.

Yet neither biblical commandment nor the most zealous Victorian censor can elide from the human mind its hand-wringing over the unruly human body, its chronic, embarrassing demands and its sad decay. Discomfort over body functions never sleeps, Dr. Burridge said, and the need for an ever-fresh selection of euphemisms about dirty subjects has long served as an impressive engine of linguistic invention.

Even landlocked tribesmen, it seems, are linguistically predisposed to swear like sailors. Ain't that a son of a bitch?

On a marginally-related note, it's customary to threaten American children that their mouths will be washed-out with soap if they curse; in France, where soap does not exist, what is the penalty for vulgar language? Gargling with Manischiewitz? Swabbing one's mouth out with a Big Mac?

Up the Mississippi Without a Paddle

While acknowledging freedom of contract as a general concept, governments at all levels have rarely been shy about infringing upon that freedom when doing so is politically advantageous or expedient. Notwithstanding, those encroachments are rarely so brazen or devoid of any rational foundation in law as is a current effort by Mississippi Attorney General Jim Hood.

Hood's state lawsuit against five insurers, including Allstate, State Farm, and USAA, seeks to force those insurers to pay flood damages suffered by their Mississippi policy holders despite clear exclusions in those policies and the ready availability of flood coverage from federal programs. As reported by the Wall Street Journal (subscription required):

The suit, filed in state court in Jackson, seeks to override the exclusions. It comes as tens of thousands of Gulf Coast property owners struggle with the cost of rebuilding homes damaged by the wall of water that surged with the hurricane Aug. 29. Standard homeowners' policies typically cover wind and other storm damage, but not flood damage.

. . . .

"You can't provide free flood insurance by rewriting contracts," said Jane Boisseau, a New Orleans native and co-chair of the insurance practice for law firm LeBoeuf, Lamb, Greene & MacRae LLP in New York, which represents many insurers. A spokesman for State Farm Mutual Insurance Cos., the nation's largest home and auto insurer, said the attorney general's move "threatens the foundation of the economy of the state" by attempting to undercut legal contracts. The insurers maintain they never collected any premium money from customers to cover flood damage.

. . . .

The suit seeks to void flood exclusions, arguing they are "unconscionable," unreasonably favorable to insurers and a "violation of the public policy of Mississippi."

The suit argues that policyholders bought insurance to protect property against hurricanes with the "reasonable expectation" it would cover flood and other water damage. It accuses insurers of deceptive trade practices. The suit argues that Mississippi law and court precedent require insurers to pay according to the original cause of damage, and that flooding from Katrina was caused by the storm and its high winds.

The suit argues the policies deprive policyholders of "meaningful choice."

. . . .

Allstate's general counsel, Michael J. McCabe, said the company expects Mr. Hood's challenge to fail, in part because state regulators approved the contracts, "but while it's being adjudicated, it will delay and complicate the process." He said Allstate is paying covered losses "fairly and as swiftly as humanly possibly."

. . . .

A spokesman for USAA said that, while sympathetic to Gulf Coast residents who didn't buy flood insurance, "we cannot compromise the interests of our members who have covered losses by being forced to pay for uncovered losses."

Whatever merit governments' insurance oversight efforts might have before disaster strikes, after-the-fact tinkering with policy terms is entirely without merit.

Regardless the undeniable disparities in bargaining power between big insurers and individual policyholders, insurance contracts are no less bargained-for exchanges than are other contractual relationships. Moreover, unlike many bargains between unequal bargainers, insurance policies are approved and overseen by state regulators. In Mississippi, this regulation is performed by the Mississippi Department of Insurance and its Commissioner (and William H. Macy lookalike), George Dale. It appears to be undisputed by Hood's department that the "unconscionable" policies issued to Mississippi homeowners were duly reviewed and approved by Dale's department.

The National Flood Insurance Program, administered by the Federal Emergency Management Agency, offers coverage to both residential and non-residential property owners in flood-endangered areas. One NFIP website spells out such owners' options fairly well:

Option 1: Hope that you'll receive Federal disaster relief if a flood hits.

Many people wrongly believe that the U.S. government will take care of all their financial needs if they suffer damage due to flooding. The truth is that Federal disaster assistance is only available if the President formally declares a disaster.

. . . .

[I]f your home is flooded and disaster assistance isn't offered, you'll have to shoulder the massive damage costs alone.

The bottom line? If you're looking for secure protection from financial loss due to flood damage, Federal disaster assistance is not the answer.

Option 2: Buy flood insurance and stay protected no matter what.

When disaster strikes, flood insurance policyholder claims are paid even if a disaster is not Federally declared.

Flood insurance means you'll be reimbursed for all your covered losses. And unlike Federal aid, it never has to be repaid.

There doesn't appear to be any shortage of Mississippi communities for which flood insurance coverage was available. If, for whatever reason, an affected community did not participate in the program, perhaps Attorney General Hood would be better-advised to focus his attention on those communities' municipal leaders rather than on those insurers who issued and abide by state-approved policies.

In reality, the problem appears to simply be that, of the options described by FEMA supra, most Mississippians chose Option 1. According to the Wall Street Journal, "fewer than one in four Mississippi properties in areas most at risk of flooding are insured through the federal program."

It is all-too-common for bureaucrats to compensate voters for those voters' own short-sightedness, but such public charity is properly done, if at all, with public funds. To essentially penalize insurance companies after-the-fact for doing business in the State of Mississippi seems a certain way to ensure no insurer will do business in the state again. As in other states where insurers have found that government heavy-handedness has created an unfavorable business environment, consumers in Mississippi will likely discover far fewer insurance options for themselves in the very near future. Fewer options will mean that what coverage is available will be more expensive -- the law of supply and demand tends to govern rationally even when governments alter other laws irrationally. Fewer options also will mean that more individuals will be unable to secure coverage at any affordable price -- a circumstance with many collateral effects. No available insurance coverage usually means no available capital and no capital means no progress, on either the individual or community levels.

Whatever short-term political gains might be had in Mississippi by putting a thumb on the scales will be outweighed many times over in the longer term as the effects of this intervention cascade through the post-disaster commercial environment. Certainty of contract is not a luxury -- it is an absolutely necessary precondition for modern commerce. Whether national sympathy and governmental largesse after Hurricane Katrina will be enough to rebuild Mississippi, it is beyond reasonable argument that only modern commerce can sustain it once collective memories of Katrina's damage fade beyond Mississippi's borders.

UPDATE: J. Craig Williams of May It Please the Court has also noted this case.

UPDATE 2: Walter Olson and the Wall Street Journal join in my righteous indignation.

24

This week brings us Blawg Review 24, courtesy of Jay Williams' Jaybeas Corpus blog. In this issue, Blawg Review's unnecessarily hot daughter is kidnapped several times, Blawg Review itself is captured and tortured, there is an assassination attempt on the ever-mysterious Blawg Review Editor, several contributors are revealed as traitors working for a rival legal blogging carnival, and Blawg Review's wife is killed unexpectedly at the end. Enjoy!

Once you've had a chance to catch your breath, take an opportunity to peruse the submission guidelines and recommend a worthy law-related post you see or write this week. The deadline for next Monday's edition is this coming Saturday evening. Don't be late . . . the clock is ticking.

TGIS: Thank God It's Schadenfreude! (31)

This week's joy in the misfortune of others comes courtesy of Philadelphia ABC affiliate WPVI (from Wednesday, September 14; link good at time of posting):

New Hampshire lawmakers goofed. When the state introduced E-Z Pass to pay highway tolls, lawmakers outlawed running through the automated toll lanes without paying.

But in the process, the legislators mistakenly repealed the law against driving through the regular lanes without paying.

It used to be a $140 fine to run a toll booth. Now it's just a $25 administrative fee for evading both the E-Z Pass and standard toll lanes.

State highway officials say they'll ask lawmakers to reinstate the old law when the legislature goes back to work in January.

[Previous TGIS]

I'll Watch "Survivor" Again When the Rejects Are Eaten

Reuters reports what is either the all-but-official end of the reality television fad or a precursor to a series of "Sheep Gone Wild" DVDs:

Croatia has launched a new reality show on the Internet, starring sheep instead of people.

The winner of the 10-day Stado (herd) show, which closes on September 17, will receive poetry in its honor instead of money.

Those voted out of the seven-member herd might be eaten, the Vecernji List daily reported Wednesday.

. . . .

He said the aim of the project was to show that "more and more people, especially those who take part in reality shows, are made to look like sheep in every situation."

If by "ironically high-concept satire of a played-out genre" you mean "stupid", then I agree that it is an ironically high-concept satire of a played-out genre. If you want reality programming featuring sheep, watch the Roberts confirmation hearings on C-SPAN. The hearings aren't really in English, but at least they're not in Croatian.

Blawg Review Skidoo

The twenty-third issue of Blawg Review available, thanks to David Gulbransen at the Preaching to the Perverted blog. Review the submission guidelines and recommend an outstanding law-related post you see this week or perhaps one of your own worthies; the deadline for next Monday's issue is this coming Saturday evening.

Even Blind Men Have 20/20 Hindsight

The general consensus around the blogosphere this past week has been that Michael Brown, the appointed head of FEMA, was both inept in leading his agency's response to the Hurricane Katrina disaster and generally-unqualified to head the agency at all. That consensus has been joined by pundits and politicians from both parties, and now (more-or-less) by the Bush Administration, which removed Brownie from the hurricane zone and, it hopes, from the public consciousness.

Notwithstanding, amidst all the Congressional baying for Brown's blood (and, amongst Democrats, Bush's as well), Joseph Britt raises an interesting issue -- where was all this valuable Congressional insight during Brown's confirmation hearings in 2002? Writes Britt:

None of the concerns (or outrage, incredulity, etc.) being expressed now about Mr. Brown's qualifications for the job he'd be chosen for were expressed then. Four Senators attended the hearing.

Brown got one question (from Sen. Akaka, D-HI) about whether FEMA's joining the then-new Department of Homeland Security might compromise its effectiveness; he got another (from Sen. Bennett, R-UT) about whether the new emphasis on terrorism might reduce FEMA's effectiveness in responding to natural disasters. The majority of the other questions were submitted for the record -- generally, this means they were written by committee staff, with answers prepared by agency staff and sent to the committee after the hearing -- and dealt with terrorism, concerns about FEMA's relations with states, transfer of some programs from other agencies to FEMA, and concerns about the agency's procedures for providing help to 9/11 victims. At a couple of points Brown mentioned the problem of "brain drain" at FEMA, at least a little ironic in view of current press reports about that issue (the context then was the eligibility of many FEMA employees for retirement).

What does this tell us?

The biggest thing it tells us is that in June of 2002 no one on the Senate Governmental Affairs Committee was thinking in terms of a major disaster on the scale of Katrina.

. . . .

There is no getting around the fact that most Senators look on confirmation hearings as an opportunity to get press for themselves. If a hearing has a low potential for this -- Brown's confirmation, coming when it did, fell into this category -- Senators have many other things they can be doing. They often go through the motions if they show up at all, and in fairness there are many nominations concerning which doing anything more would be a waste of everyone's time.

Having said that, the structure of the modern Senate makes it much more likely that underpowered nominees will slip through unchallenged.

Perhaps a bit of careful scrutiny to Brown's resume, like that applied this week by Time magazine, would have revealed his lack of relevant experience. Perhaps a few tough questions would have raised red flags. Perhaps. Instead, as Britt relates, "Normal practice then, as now, was to assume that an agency running well (as FEMA then was by most accounts) would continue to run well, and that a nominee with experience in the agency (which Brown had) was competent to be promoted." Those seem like reasonable assumptions, all things considered, but you can't both have your cake and eat it. If you fail to ask the tough questions when they might count for something, you forfeit your right to be indignant when it's discovered later that no one else asked the tough questions either.

Hindsight has revealed a terrible mistake by the Bush Administration in appointing an unqualified political hack to a key operational position, but it also reveals a failure on the parts of various Senators in both parties to identify the Administration's mistake when it could have been easily rectified. Hindsight is 20/20 . . . and worthless.

Don't Forget to Fingerprint Them

Providing some much-needed closure to the Chilifinger saga from a few months back, the geniuses involved have pleaded guilty to the crime:

Anna Ayala, 39, and Jaime Placencia, 43, pleaded guilty to conspiring to file a false claim and attempted grand theft in a scheme that the Dublin, Ohio-based Wendy's International Inc. claimed cost it $2.5 million in lost sales because of bad publicity.

. . . .

Ayala's attorney, Rick Ehler, said she was truly remorseful.

"There are a lot of people that work for Wendy's that were harmed, she always felt a lot of remorse about that," he said.

Ayala claimed to have found the fingertip March 22 while eating chili with her family at a Wendy's in San Jose. Authorities said they believed it was a hoax, but the story of the tasteless finger food quickly circled the globe and became fodder for late-night comedy.

A search for the finger's owner eventually led to one of Placencia's co-workers, who lost it in an industrial accident in Las Vegas, police said.

. . . .

Ayala also pleaded guilty to defrauding a woman by selling a motor home she didn't own, and Placencia also pleaded guilty to failing to pay child support.

Ayala faces up to nearly 10 years in state prison when sentenced Nov. 2. Her husband faces up to 13 years behind bars.

Now we can all move on with our lives.

TGIS: Thank God It's Schadenfreude! (30) . . . The Sequel!

This week's bonus joy in the misfortune of others comes courtesy of Reuters (from Friday, September 9; link good at time of posting):

A German thief stole a man's in-car navigation system and unwittingly auctioned it online back to his victim, who had police arrest him, authorities said Wednesday.

Police in Berlin said the 26-year-old victim spotted the device on an Internet auction site and quickly re-acquired what he had reported stolen from his car some two weeks previously.

He informed police, who went to the thief's house posing as the buyers and then arrested the 21-year-old.

"I think the thief got a bit of a surprise," said a Berlin police spokesman, adding the man confessed to the theft.

[Previous TGIS]

TGIS: Thank God It's Schadenfreude! (30)

This week's joy in the misfortune of others comes courtesy of Reuters (from Friday, September 2; link good at time of posting):

A German woman laid waste to her family home by setting fire to it as she tried to kill spiders in a garage with a can of hairspray and a cigarette lighter.

Police in the western town of Zuelpich said that when the aerosol failed to finish them off, the 34-year-old woman tried to burn them with the lighter. However, this set the area she had just sprayed on fire and the blaze spread to a hedge.

"It was a series of unfortunate events which led to the damage," a police spokesman said Thursday.

"She tried to put the fire out with a garden hose, but couldn't. Instead her semi-detached house next to the hedge caught fire. It's now uninhabitable."

Firefighters managed to extinguish the blaze and save the neighboring house, which sustained broken windows and some charring. The spokesman estimated the total cost of the damage at well over 100,000 euros. No one was hurt.

"The family have had to look for somewhere else to stay," he said. "The spiders are gone though -- that problem was solved."

[Previous TGIS]

False Advertising in China

My day-to-day work deals principally with U.S.-based technology transactions, so my grasp of Chinese consumer protection laws is somewhat lacking. As such, I will be keeping an eye on this case to further my professional knowledge:

A restaurant in northeastern China that advertised illegal tiger meat dishes was found instead to be selling donkey flesh — marinated in tiger urine, a newspaper reported Thursday.

The Hufulou restaurant, located beside the Heidaohezi tiger reserve near the city of Hailin, had advertised stir-fried tiger meat with chilies for $98as well as liquor flavored with tiger bone for $74 a bottle, the China Daily reported.

Raw meat was priced at $864 per kilogram.

The sale of tiger parts is illegal in China and officers shut down the restaurant, only to be told by owner, Ma Shikun, that the meat was actually that of donkeys, flavored with tiger urine to give the dish a "special" tang, the newspaper said.

. . . .

Authorities confiscated the restaurant's profits and fined Ma $296 it said. It wasn't clear what Ma was fined for.

Just donkey meat in tiger urine? Well, OK then.

What would be an aggrieved consumer's recourse for this outrage, if anything? Even if the purchase and consumption of tiger parts is not illegal, these consumers were dealing for goods which could not be legally conveyed to them. What's Mandarin for "unclean hands"?

Still, as in America, perhaps "forewarned is forearmed" should be a prudent consumer's mantra. As a public service, Chinese video pirates should take a breather from shopping the latest Hollywood releases and steal from their vaults instead. Start with the 1990 Matthew Broderick-Marlon Brando buddy picture "The Freshman", wherein the caper revolved around a fly-by-night eatery which passed-off Virginia ham as endangered Komodo Dragon meat to rich but gullible diners. If there's a resurgence of interest in this excellent film, perhaps there could be a "Freshman II" with an older and wiser Matthew Broderick and a young Chinese sidekick peddling donkey meat marinated in tiger urine. If Andrew Bergman isn't available to write and direct the sequel, perhaps Michael Bay could do the honors; exploding donkey meat, anyone?

UPDATE: On second thought, forget Michael Bay for "Freshman II" -- it has to be Ang Lee. Between "The Wedding Banquet" and "Eat Drink Man Woman", I'm confident that no director could provide the intimate, beautifully-lit donkey meat in tiger urine preparation shots "Freshman II" would surely require. Of course, if exploding donkey meat is still needed, he has his "Hulk" experience to guide him.

Thank You

According to The Truth Laid Bear, the blog-based fundraising effort for various Hurricane Katrina relief organizations has raised $1,198,109 in contributions thus far. In all, 1,812 blogs, including Infamy or Praise on behalf of the American Red Cross, have participated. Thank you to all who have donated.

Heroic Deeds Elsewhere

Heroism is not an exclusively American trait; predominately, yes, but not exclusively. In fact, nearly every nation except France has its heroic individuals. Consider this Limey's recent heroic actions, as reported by The Register:

An enraged Brit spent 24 hours in jail and was fined 60 quid for terminating a Bulgarian karaoke with his fists - a small price to pay for bringing to an end a tuneless rendition of Queen's We are the Champions belted out by a couple of melodicidal locals.

Having assaulted the two men responsible for the outrage, 40-year-old Kevin Tester of Eastbourne proceeded to trash the Techhouse karaoke restaurant in the Black Sea holiday resort of Sunny Beach. He later told police he had been provoked by the "bad singing" and "bad English", Ananova reports.

Rock on, karaoke quality enforcement guy . . . you are the champion.

Sean Penn Sets the Car on Fire

Dave Barry once wrote:

The Democrats seem to be basically nicer people, but they have demonstrated time and again that they have the management skills of celery. They're the kind of people who'd stop to help you change a flat, but would somehow manage to set your car on fire. I would be reluctant to entrust them with a Cuisinart, let alone the economy. The Republicans, on the other hand, would know how to fix your tire, but they wouldn't bother to stop because they'd want to be on time for Ugly Pants Night at the country club.

Although it is far more than an economic disaster, no event has served to confirm Barry's words more than the various responses to Hurricane Katrina. Democrats Kathleen Blanco, Governor of Louisiana, and Ray Nagin, Mayor of New Orleans, have displayed the aforementioned management skills of celery, respectively jockeying for political control of the recovery and locking-up transportation assets ahead of a planned evacuation (see here and here).

For his part, the Republican head of FEMA, Michael Brown, has been demonstrating time-and-again that he couldn't find the country club if you pointed him in the right direction from the curbside bag-drop area. When CNN's Paula Zahn ("Sir, you're not telling me, you're not telling me you just learned that the folks at the convention center didn't have food and water until today did you? You had no idea they were completely cut off?") and Soledad O'Brien ("How is it possible that we're getting better intel than you're getting? We had a crew in the air. We were showing live pictures of the people outside of the Convention Center. We had a National Guardsman who was talking to us, who was telling us he estimated the crowd at 50,000 people. That was at 8:00 in the morning yesterday. And also, we've been reporting that officials have been telling people to go to the Convention Center if they want any hope of relief. I don't understand how FEMA cannot have this information.") are berating you on national television about your complete ignorance of the presence of thousands of refugees at the New Orleans Convention Center, you have no alternative but to realize the error of your ways. Brown apparently has; this evening's news reports that he is no longer available for interviews. Brownie, you're doing a heck of a job.

Despite it all, and much to my surprise, the proof positive of the Barry Postulate has been provided not by a governmental official, but rather by an Oscar winner. Yes, actor and liberal activist Sean Penn, taking a break from his busy international travel schedule, manages to set the proverbial car on fire. From IDontLikeYouinThatWay.com:

Sean Penn traveled to New Orleans with his entourage, including a personal photographer, in an attempt to act like a rescue worker. It didn't work, as the boat Penn was piloting sprang a leak after he apparently forgot to plug a hole in the bottom of the vessel, which began taking water within seconds of its launch. Penn was seen wearing what appeared to be a white flak jacket and frantically bailing water out of the sinking vessel with a red plastic cup. The motor also failed to start, and those aboard were forced to paddle down the flooded New Orleans street. Asked what he had hoped to achieve in the waterlogged city, the actor and not qualified rescue worker replied: "Whatever I can do to help." The locals were unmoved, and one bystander even taunted the actor: "How are you going to get any people in that thing?"

I'm positive that Sean Penn's heart was filled with care bears and his only desire was to help - why else would you bring your personal photographer - but since he's an idiot actor with no experience in the physical world, he was of course completely overwhelmed within seconds.

When both government and celebrities have let us down, to whom can the desperate people of New Orleans turn? No one's actually seen Aquaman recently, although the same can be said of Dick Cheney as well. It took the Ventians centuries to perfect the gondola-based municipal infrastructure. Things are rapidly deteriorating to the point where only Sir Bob Geldof can possibly save the day. Dry Aid, anyone?

Blawg Review with a Bullet

Blawg Review 22 is locked and loaded, thanks to Blawg Wisdom. Reflecting on a week which brought both natural disaster and a death in the Supreme Court family, Blawg Wisdom takes us all back to school. (I originally tried to work that into the headline, but "back to school with a bullet" was just too Columbinesque.) Review the submission guidelines and recommend an outstanding law-related post you see this week or perhaps one of your own worthies; the deadline for next Monday's issue is this coming Saturday evening (unless you're Professor Bainbridge, in which case you can submit whenever). I'm so inspired by the quality of this week's edition that I may just write something law-related in my law-related blog. Don't laugh -- it could happen.

TGIS: Thank God It's Schadenfreude! (29)

After 29 weeks of TGIS, we have a first -- prospective schadenfreude! This week's joy in the hasn't-yet-happened misfortune of others comes courtesy of Reuters (from Thursday, September 1; link good at time of posting):

A South African inventor unveiled a new anti-rape female condom on Wednesday that hooks onto an attacker's penis and aims to cut one of the highest rates of sexual assault in the world.

"Nothing has ever been done to help a woman so that she does not get raped and I thought it was high time," Sonette Ehlers, 57, said of the "rapex," a device worn like a tampon that has sparked controversy in a country used to daily reports of violent crime.

. . . .

Ehlers said the "rapex" hooks onto the rapist's skin, allowing the victim time to escape and helping to identify perpetrators.

"He will obviously be too pre-occupied at this stage," she told reporters in Kleinmond, a small holiday village about 100km (60 miles) east of Cape Town. "I promise you he is going to be too sore. He will go straight to hospital."

The device, made of latex and held firm by shafts of sharp barbs, can only be removed from the man through surgery which will alert hospital staff, and ultimately, the police, she said.

[Previous TGIS]

More Blegging for a Worthy Cause

There's unfortunately no end to need in the world these days. I appreciate those who have mentioned to me that last week's post about the Soldiers' Angels Foundation and their Project Valour-IT either prompted them to donate to that charity or a similar one, or to consider doing so in the near future. (And my thanks go also to those of you who donated but didn't drop me a line!) A link to that worthy cause remains in Infamy or Praise's sidebar and will so remain for some time yet.

Let's do some more good.

The news this week has detailed the tragic aftermath of Hurricane Katrina so discomfortingly well that I don't need to recap those effects here. On Tuesday, I posted a donation link to the Red Cross' donation page in the sidebar but didn't draw much attention to it. Certainly, the Red Cross needs no introduction; the tireless efforts of its volunteers and workers year after year, during major disasters and more personal tragedies, here and abroad have made its mission known to all. If you have not already donated to one of the many efforts providing relief to the areas battered by Katrina, please do so now through the donation link in the sidebar.

If you've spent much time today in the blogosphere, you've likely noticed the concerted efforts of hundreds of bloggers, led by the Instapundit and The Truth Laid Bear sites, to raise money for and draw needed attention to the numerous charities involved in the relief and rebuilding efforts now ongoing in Louisiana, Mississippi, and Alabama. Please take the time to donate to the Red Cross here or to another effort at another blog site and take a second as well to register your generousity on the TLLB contribution logging page, to see your contribution add to the thousands of dollars blog writers and readers have raised for this noble and necessary effort.

It Still Couldn't Have Saved Waterworld

Surveillance technology is usually -- and rightly -- regarded with suspicion. Whatever its utility, we're always conscious of the potential for its misuse, and all too often, surveillance gadgetry serves only to record tragedy rather than prevent it. Still, when some potentially-brilliant technology works as-advertised, it's beyond cool:

A 10-year-old girl in Bangor, Wales, was saved from drowning when she blacked out in a swimming pool, after a set of computer-linked underwater cameras alerted lifeguards. The Poseidon system, currently installed in eight U.K. pools, and over two dozen in the U.S., uses a series of overhead and underwater cameras to track movement in a pool. When a swimmer disappears beneath the surface, software triggers an alert, which can help a lifeguard reach the victim more quickly. In this case, the computer issued an alert within 10 seconds after the girl, who was swimming in the deep end of a 12-foot deep pool, sank to the bottom.