Note to Self: Wear Pants

San Francisco Bay Area legal bloggers will be meeting on March 28 (a Wednesday) for a blawg clambake which will be graciously hosted by Professor Eric Goldman and the High Tech Law Institute at Santa Clara University School of Law. Amongst other legal blogosphere luminaries, SUN General Counsel Mike Dillon and the Electronic Frontier Foundation's Jason Schultz are confirmed attendees. RSVPs should be sent to Professor Goldman at egoldman@gmail.com.

A Very Healthy Blawg Review

Bob Coffield ably hosts Blawg Review no. 97 at his Health Care Law Blog. He starts by focusing on several worthy posts which discuss social networking technology, new technology tools, and our collective shift toward living our lives on the internet. The remainder of this edition of Blawg Review has a few gems as well, including posts on punitive damages in tobacco litigation, medical malpractice litigation involving morbidly obese claimants, and Anna Nicole Smith's will. Susan McDonald will host Blawg Review no. 98 next week at her Legal Research and Writing blog.

TGIS: Thank God It's Schadenfreude! (103)

This week's joy in the misfortune of others comes courtesy of Reuters (from Thursday, February 22; link good at time of posting):

A would-be thief proved himself lacking in key skills like reconnaissance and driving after he tried to pull a heist beside a police-dog training site and then got stuck in the snow trying to flee.

Police in Edmonton, Alberta, said officers were training with a dog at a business late Tuesday when they heard an alarm sound from the building next door.

When they went to investigate, a car smashed through a garage door and zoomed past an officer and his dog, Wizzard, Edmonton police spokeswoman Karen Carlson said.

"He didn't get very far because he got stuck in a snow bank," Carlson said. The car turned out to be stolen.

The suspect tried to make a break for it on foot, but was quickly forced to give himself up when Wizzard caught up with him.

[Previous TGIS]

Forget Nevada; Florida is the gambling capital of this country.

Radley Balko of the libertarian Reason magazine's excellent Hit & Run blog offers a post concerning the Florida hurricane insurance boondoggle I've written about previously (see here and here):

Residents of hurricane-battered Florida are facing soaring insurance premiums. Some, in fact, can't afford any insurance at all. Smart people might interpret this as the market's way of saying, "Hey, dumbass. It isn't safe to live here. Better to look elsewhere."

But not Florida lawmakers. They've just signed on to a bill that would artificially lower insurance premiums by backing coverage with guarantees from state coffers. Unfortunately, it's money the state doesn't have. The bill guarantees $32 billion in relief from the state's "catastrophe fund" should (read: when) a major hurricane again hits Florida. Currently, the fund contains . . . less than $1 billion.

Since neither the state's catastrophe fund nor the state-chartered insurance company has anywhere near enough money on hand to pay the claims they may now be required to pay after a major hurricane, the measure is considered a gamble, even by proponents.

"We all need to pray to the hurricane gods," said state Sen. Steven Geller, who represents this beachfront condo city and negotiated a portion of the bill. "Yes, we're taking a risk. But what were our options?"

. . . .

"If I wanted to gamble -- personally, I don't even buy lottery tickets -- and I'm pulling money out of my own pocket, that's one thing. But taking money out of someone else's pocket with the force of law is just irresponsible," said state Rep. Don Brown, the chairman of the insurance committee, who cast one of only two votes in the Florida House against the measure. "It's the most irresponsible measure that I ever was asked to vote on."

. . . .

Remove all market incentives to steer clear of areas prone to natural disaster. Bail out victims with taxpayer dollars when entirely foreseeable disaster inevitably hits. Lather. Rinse. Repeat.

This is how government creates catastrophe.

Balko doesn't cite the source of the article he quotes, but I've not seen a better capsule summary of this epic financial disaster waiting to happen. Opponents and proponents alike recognize this as nothing less than a pure gamble. To summarize the justifications, these seem to be "South Florida is a lovely place to live, so long as your house remains there, and justifiably high insurance premiums ruin an otherwise pleasant day at the beach." and "We're praying so that it'll all work out and, even if God isn't on our side, the federal government will be (God doesn't need our votes, after all!) and we'll be saved from our own stupidity when the time comes."

There's not much doubt that a major hurricane will hit Florida in the next year or two, causing billions of dollars in damages when the insurance pool is egregiously underfunded. The real question is, when that happens, whether I will feel almost no sympathy for the people of Florida
or exactly no sympathy for them.

UPDATE: According to a post by Walter Olson at the PointofLaw Forum blog, the source of Balko's article is the Washington Post.

Esteemed Members of the Bar (beque)

South Carolina has a history of doing itself proud when it comes to Blawg Review. Injury lawyer David Swanner did a bang-up job on Blawg Review no. 6 at the South Carolina Trial Law Blog. Sheryl Schelin flew high with Blawg Review no. 63 at The Airport Lawyer blog before landing and starting her own firm; Blawg Review no. 104 will undoubtedly work out just fine when she hosts at her new South Carolina Employment Law Blog.

It's no great surprise then that Bill Watkins' Presidents Day-themed Blawg Review no. 96, hosted at the South Carolina Appellate Law Blog, is another entertaining and informative edition of the carnival of legal blogging. Highlights include a band on the run, a slapfight between Joe Rogan and Carlos Mencia concerning joke thievery, and the myth of the ticking time bomb.

Speaking of myths, the South Carolina origin of no. 96 gives me an opportunity to dispel another myth, namely that Texas barbeque is the best in the country. It's definitely good, but Carolina-style barbeque is just as definitely better. For my money, Carolina Bar-B-Que in New Ellenton is the class of the field. It's deserving of that title based on its food alone, but it also exemplifies the three hallmarks of true Carolina barbecue:

1. It's cheap and all-you-can-eat because, when you get right down to it, so are we all.
2. Its building should probably be condemned but isn't yet because the inspector is eating.
3. It's not open more than three days per week. If you show up too early, the doors are closed because the pig ain't done yet; if you show up late, the doors are closed because the pig's all gone. You need to get your priorities straight and show up at the right time wearing loose-fitting pants.

In Bill's neck of the woods, the Greenville area, the Brushy Creek Bar-B-Q deserves a very favorable mention. Elsewhere, Maurice's Gourmet Piggie Park Barbecue is probably the best-known -- not the best, mind you, but the best-known and not at all bad if you just want a quick meal. What's more, Maurice has a hallowed place in legal history thanks to the 1968 Supreme Court civil rights decision in Newman v. Piggie Park Enterprises. Truly, we would not be the nation we are today without Carolina barbecue.

TGIS: Thank God It's Schadenfreude! (102)

This week's joy in the misfortune of others comes courtesy of the New York Daily News (from February 14; link good at time of posting):

And the moral of the story is: If you're ripping off your own record label for $20,000 worth of pilfered CDs, don't make your interns do all the work selling it on eBay - they might rat you out.

That was the fate of one hapless Jive Records executive assistant who was recently canned for his inventive side business.

"He was selling pre-release Justin Timberlake albums for $50 a pop," laughs our snitch. "And he was using the Jive mailroom to send them out."

But the interns didn't love having to do the shipping themselves.

"They sent an E-mail to Jive president Barry Weiss from an anonymous E-mail account, InternsArePeopleToo@[redact- ed], and copied every vice president to tell them they were 'fired up.' "

The executive assistant, however, was just fired.

[Previous TGIS]

A good analogy is like an antique turnip.

A few weeks back, Professor Orin Kerr of the Volokh Conspiracy blog suggested that, when using analogies to explain issues relating to technology law, one should not become too wrapped-up in "the analogy game" and lose perspective. Not that it's particularly analogous to technology law, but Kerr's suggestion would apply as well to foreign policy. It's a shame that Congressman Ric Keller, a Republican from Florida, didn't get the message:

Let me give you an analogy. Imagine your next door neighbor refuses to mow his lawn and the weeds are all the way up to his waist. You decide you’re going to mow his lawn for him every single week. The neighbor never says thank you. He hates you and sometimes he takes out a gun and shoots at you.

Under these circumstances, do you keep mowing his lawn forever? Do you send even more of your family members over to mow his lawn? Or do you say to that neighbor, ‘You better step it up and mow your own lawn or there’s going to be serious consequences for you’?

Does Kerr support the withdrawal of American troops or the President's surge? If he thinks too much about that analogy, even he might not be certain. In the meantime, I'm heading home to oil my guns just in case my neighbor tries to mow my lawn.

Pro-Democracy, Pro-Peace, Pro-Israel

Occasionally (but more frequently since I added the PizzaIDF links over in the sidebar), I'm asked why I'm so pro-Israel. In response, I can offer any number of reasons, but never as concisely or as eloquently as I'd like. In a pair of posts over at OxBlog, David Adesnik provides just such a concise and eloquent explanation:

I see a fundamental moral difference between the intentional slaughter of civilians as opposed to the accidental. Not because one kind of death is any less horrible for the victim, but because of what the intentions of the killer say about his cause.

In addition, I see a fundamental difference between those who intentionally slaughter civilians and cover-up the evidence of their crimes and those who intentionally slaughter [civilians] and celebrate what they have done or identify as the highest expression of their faith. Again, there is no difference from the perspective of the victim. But for those who are still alive and must contend with the killers, the difference is tremendous.

It is a sad fact that the world's greatest democratic states -- Britain, France and the United States of America -- have done terrible and unjustifiable things in the midst of frustrating wars. Yet the resilience of their democratic societies has ensured an eventual reckoning with such crimes as well as their ultimate repudiation.

For the victims, such reckoning and repudiation may come far too late. Nonetheless, it says something very important about the ability of those societies to peacefully co-exist with their neighbors. They know the road to peace, even if they deviate from it.

Now let me make the comparison with Israel explicit. It is a vibrant democratic society broadly committed to the essential democratic values of liberty and life. And precisely because it is a democratic society, there has been strong support for several efforts to negotiate peace with the Arab states and the Palestinians. In democracy, there is an inherent preference for solutions that favor compromise over force.

To what extent can such things be said about Palestinian society? I am well aware that my knowledge of this society is partial at best. It is the result of a collage of facts and images presented by a media establishment that is profoundly suspect in the [eyes] of Israel's harshest critics. I cannot provide citations or footnotes for the images in my head. So let me phrase what I say as a somewhat tentative effort to separate the facts from the stereotypes.

The total number of Palestinian suicide bombers -- both attempted and successful -- seems to be no more than a few hundred. Yet my sense is that there is much broader social infrastructure necessary to support such attacks. There are those who make the bombs. Those who train the bombers. Those who provide the funding. Those who capture the final testament of the bombers on video. How many individuals play such a supporting role? Perhaps a few thousand.

But the two kinds of supporters that frighten me most are the political leaders and the mothers of the suicide operatives. I have heard interviews with parents who swell with pride at the fact that their child gave his or her life in order to kill Israeli civilians. This indicates me to me that tens or hundreds of thousands of Palestinians are part of a [society] that values death and endless conflict much more than compromise and life.

Also in my head are images of parades in the West Bank and Gaza where children dress up as suicide bombers, with masks and papier mache dynamite vests. Perhaps it's the camera angle, but there seem to be thousands of impassioned Palestinians participating in this spectacle. And if thousands can openly celebrate murder, there is a profound problem that goes far beyond the participants.

If one wanted to change my mind about this subject, the best strategy available would be to demonstrate the marginal nature of such death-obsessed individuals in Palestinian society. Point me towards evidence that their numbers are few and their influence limited. No less important, point me toward the influential (not marginal) figures -- politicians, journalists, clergymen and scholars -- who denounce such horrific behavior as unequivocally as I do.

Yet it seems unquestionable that the most influential politicans will do no such thing. The governing party, Hamas, refuses to repudiate, let alone apologize for violence against civilians. The former governing party, Fatah, often made a show of denouncing attacks before Western audiences while actively supporting its own terrorist cells. Both parties seem to believe that their sponsorship of suicide attacks will heighten their stature among Palestinians much more than it will reduce it. Their consensus on this point suggests to me that it is disturbingly valid.

Jumping on the Bandwagon

Perhaps I'm just a sheep following the flock, but when I have a few minutes later this morning, I think I'll do the following just because everyone else is:

1. Declare myself a candidate for President of the United States of America;
2. Claim paternity of Anna Nicole Smith's baby; and
3. Publicize my secret nuclear weapons program to get free stuff and attention from the international community.

Maybe I'll also have a double bacon cheeseburger for lunch if I'm feeling really adventurous.

Tell Us What We Auto Do

In this country, we have a longstanding love affair with the car culture and, like any love affair, this one has its moments of passion occasionally tempered by a moment of dysfunction and a boiled pet rabbit or two. When it comes to the seamier side of the car culture, E.L. Eversman, chief counsel for Vehicle Information Services, Inc. and proprietor of the fascinating AutoMuse blog, is well-positioned to dish.

Having left the auto industry for the legal industry, Eversman's Blawg Review #95 demonstrates ample expertise in both. Highlights include "Jerry Springerish" judges, a very brief brief, and banning red-light camera evidence. There is, of course, much concerning the ins-and-outs of auto insurance, including this troubling observation:

Automotive News($) published a recent J.D. Powers survey involving only 5,752 consumers who had been involved in collisions and addressed their satisfaction about the repair experience. The survey results suggest that people are happier with the collision repair experience when using insurer “direct repair program” shops or when they have received a referral from an insurer. Part of the rationale given in the story in Automotive News for why consumers feel better about insurer recommended repair shops is that insurers investigate them and insist that they have the latest model equipment and best-trained technicians. Holy cats, is that a sell job, because it is absolutely untrue.

. . . .

You can see, therefore, the complete lack of value of the J.D. Powers survey. The only reason those customers are satisfied with the insurer’s recommendation is because the insurers tend to leave shops in their “networks” alone and don’t play games with them by browbeating their customers, refusing to pay for necessary repairs, deliberately delaying sending an adjuster to review the damage for two or more weeks, and other lovely games. And why do they leave the network shops alone? Because those collision repair shops have signed documents that trade away many rights of the customers (unbeknownst to the customers), agree to use inferior parts, use salvage parts (including salvage airbags), and agree to fully indemnify the auto liability carrier for anything (negligence, intentional acts, diminished value, attorney fees, titling problems — oh yes, some of those clips are “front end” clips. That means the VIN on your dashboard is a salvage vehicle VIN and no longer matches the registration or title of your car.) Anyone who takes the insurer’s recommendation for a collision repair shop is asking for trouble.

We'll enjoy a bit of Southern hospitality next week when Bill Watkins hosts Blawg Review #96 at the South Carolina Appellate Blog.

TGIS: Thank God It's Schadenfreude! (101)

This week's joy in the misfortune of others comes courtesy of the Associated Press (from Saturday, February 3; link good at time of posting):

A diplomatic gaffe marred Saturday's inauguration of a China-financed stadium [in Grenada] when a band performed the national anthem of Chinese rival Taiwan.

Chinese Ambassador Qian Hongshan and scores of blue-uniformed Chinese laborers who built the $40 million Queen's Park stadium as a gift were visibly uncomfortable as Taiwan's anthem echoed inside the 20,000-seat venue.

[Previous TGIS]

Value Added

Robert Ambrogi links to an excellent post by Rees Morrison at the Law Department Management blog which tackles a tricky question for many small-but-growing businesses -- when should a company hire its first in-house attorney? Morrison identifies several worthwhile considerations in exploring a question he concedes is "unanswerable":

1. Overall Satisfaction with Outside Counsel;
2. Costs Attributable to Use of Outside Counsel;
   
3. Adequacy of Cash Flows to Support Internal Counsel; and
   
4. Nature of Anticipated Needs (e.g., legally-intensive regulatory compliance, patenting and licensing of intellectual property, etc.).
   

Morrison's criteria focus, understandably enough, on costs associated with building and maintaining an in-house legal department. However, he also touches on a point which hints at another factor to consider:

I suspect that also on the list of determinants are the personal beliefs and values of the Chief Executive Officer. If that person appreciates lawyers, the department will appear more quickly.

CEO or otherwise, one does not appreciate lawyers solely for our witty repartee and keen fashion sense. Instead, "appreciation" is really nothing more than the consideration of the value an attorney can add to one's business rather than just a calculation of the overhead he or she adds. In considering when to hire an in-house attorney, this essentially boils down to an expectation that an attorney can add value rather than just becoming a cost center.

Cost considerations aside, the principal advantages of inside over outside counsel are continuous accessibility and depth of knowledge concerning client needs. When either of these characteristics would add measurable value to a growing business -- by facilitating an increased number of quality of sales, for example -- smart businesses account for that added value in their cost considerations.

©apped

Ars Technica reports that Captain Copyright, about whom I previously posted, is no more. The Captain was "killed by the sinister forces of Dr. Controversy" and his creators, the Canadian Copyright Licensing Authority:

In a notice on the Captain Copyright web site, the CCLA acknowledged the "criticisms the site had received." It turns out that the general public was skeptical that the best way for a child to spend school time was with an accurate but unbalanced curriculum written and promoted by a private industry group. As we noted in the original writeup on the Captain, the material looked generally correct, but it lacked any meaningful discussion of "fair dealing," the public domain, and other consumer rights.

Responding to those criticisms, the CCLA took the site offline last August and "commissioned someone with expertise on the creation of educational materials to prepare new lessons on the Creative Commons, fair dealing and the public domain." They then took the material to an advisory panel of teachers and experts for review, then prepared them for in-class testing by teachers.

. . . .

Apparently, creating the Captain was simple enough when only the CCLA was involved and their superhero was pushing the industry line. Once the group started incorporating other legitimate perspectives on copyright, it found out quickly that plenty of organizations did not agree with the CCLA about a lot of basic things. These groups were never going to be satisfied with material produced by the CCLA, no matter how independent the consultant they hired.

A Win-Win Blawg Review

Over at her Online Guide to Mediation blog, Diane Levin hosts Blawg Review #94. This is a must-see edition if there ever was one.

Levin organizes #94 around the central considerations of successful negotiation -- interests, options, alternatives, objective criteria, communication, relationships, and commitment. The result is a lengthy and rewarding edition of the legal blogging carnival. Highlights in this issue include running a belief tank, the culture of extreme work, and "the other white milk".

TGIS: Thank God It's Schadenfreude! (100)

This week's joy in the misfortune of others comes courtesy of the Reuters (from Saturday, January 28; link good at time of posting):

The wife of Italy's former prime minister Silvio Berlusconi demanded a public apology from him on Wednesday for sexist quips that she said were "damaging to my dignity," in a bitter front-page letter to a leading newspaper.

Berlusconi told some women at a TV awards dinner last week that "if I wasn't already married I would marry you right away," and "with you I'd go anywhere," she said in the letter.

Veronica, Berlusconi's second wife and mother of three of his children, said the comments belittled her and that she only decided to take her marital spat public after failing to win an apology in private.

"These are affirmations that I see as damaging to my dignity, affirmations that ... cannot be reduced to jokes," wrote Veronica, a former actress. "To my husband and to the public man I therefore ask for a public apology, having not received one privately."

The letter, a huge embarrassment to Berlusconi, was given extra sting by his wife's decision to publish it in Italy's top left-leaning La Repubblica newspaper, which is sharply critical of the leader of the centre-right political opposition.

Repubblica splashed it across the top of the front-page.

. . . .

Berlusconi's spokesman was not immediately available for comment. But Italy's richest man told one interviewer in comments also published on Wednesay that he was grateful his wife "has never made a fool out of me."

[Previous TGIS]

Florida Doubles Down

A couple of weeks ago, I mentioned an effort by the new governor of Florida to manipulate the market for hurricane insurance in that state by mandating that a greater share of the risk be borne by Florida taxpayers. That scheme is now law, prompting the RiskProf blog to ask, "When Did Florida Elect Hugo Chavez for Governor?":

In addition, the law allows the Florida state run catastrophe reinsurance fund to sell lower levels of reinsurance to the private market. This puts the state at greater risk as it now is the risk bearer in the primary market (through Citizens) and in the reinsurance market (though the cat fund).

However that wasn’t enough for [Florida Governor Charlie] Crist. Today he signed an executive order prohibiting insurers from dropping customers or attempting to raise rates through the regulatory process. While not a complete taking of contract rights, this seems to be an unusual attack on contract rights that sound more like it comes from a Socialist rather than a Republican.

Today’s Washington Post . . . mentions that both S&P and Fitch have downgraded the state’s hurricane bonds because of fears that the state will be issuing more of them — and that it is more likely that the state will hit its statutory bonding capacity. The downgrades don’t come without a cost either as they essentially cost the state more in bond interest rates. So Florida is increasing the incentive for homeowners to buy from the state by lowering Citizen’s rates while it also lowers private market rates by selling at below market reinsurance. Pretty soon it will corner the market on homeowners risk. Good luck with that!