Sneaking Suspicions

Archives-- April 21-27, 2002 (Week 16)

Commentary from a practical perspective

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This page includes posts from the site's sixteenth week, April 21-27, 2002 in the usual reverse order. Each week's postings are perma-linked to these pages.

April 27, 2002

Chutzpah alert

An AP story posted on the Internet late last night says O.J. Simpson is now going to federal court in an effort to wipe out the $33.5 million wrongful death judgment won against him by his victims’ survivors.

Simpson's petition, filed Thursday, contends that his civil rights were violated. It claims that jurors who found against Simpson in a lawsuit trial were ``inflamed by emotion,'' and the award to the families of Nicole Brown Simpson and Ronald Goldman was so large as to constitute ``cruel and unusual punishment.''

Simpson unsuccessfully exhausted his appeals in the state court system last April.

Federal appeals of state court civil litigation such as Simpson lost are extremely rare. Typically there are no legitimate grounds for the federal court to accept jurisdiction over the case or to grant relief.

The reporter also inserted a nice little commentary, in a deadpan tone:

Now living in Florida, the former actor and professional football star has not worked since the civil trial. Any money he earns could be seized to satisfy the judgment, which remains largely unpaid. As of last year, the families had received about $430,000.

This new appeal should start a whole new string of snarky commentary.

For example:

  • Simpson says that with the money he saves from not paying the judgment, he’ll be able to pay detectives to find the "real killers."
  • At the press conference announcing this appeal, Simpson denied that the jurors who acquitted him in his criminal trial were "inflamed by emotion." Immediately after his response the press briefing came to a screeching halt, because none of the reporters could stop laughing long enough to ask another question.
  • Insert your own bit of irony here.

April 26, 2002

Cloning legislation

A Delaware state senator this week introduced a bill to ban certain cloning activities. For the full text, go to the Delaware legislative website, insert "Senate Bill 344" where indicated, and click "go".

The bill includes a deceptively straightforward prohibition:

Section 3001. No person shall create or attempt to create a human being using somatic cell nuclear transfer or other cloning technologies.

The definition section deserves careful consideration, especially the following:

'Embryo' means organisms in the early stages of growth and development.

'Fetus' means an unborn or unhatched vertebrate especially after attaining the basic structural plan of its kind.

'Somatic cell nuclear transfer' means transferring the nucleus of a somatic cell of an living or previously living organism into an enucleated oocyte.

'The creation of a human child' means implanting into the uterus of a human female, for gestation and subsequent birth, the product of a nuclear transfer of a human somatic cell into a enucleated human oocyte.

The bill creates two exceptions from the broad prohibition:

Nothing in this Chapter shall restrict other areas of biomedical and agricultural research including, but not limited to, important and promising work that involves the use of somatic cell nuclear transfer or other cloning technologies:

    (a) to clone molecules, DNA, cells, and tissues; or
    (b) to develop animal or agricultural products.

The consequences for violating this law are also intriguing:

Any person who intentionally violates Section 3001 of this Chapter shall be assessed a civil penalty equal to the greater of $250,000 or two times the gross gain from the offense.

I have not followed the cloning debate with the same intensity as other bloggers, such as Virginia Postrel, Glenn Reynolds, and Charles Murtaugh, or even the folks at NRO, but I thought readers of this site would be interested to hear about this bill.

As with most policy disputes, one of the benefits of introducing legislation is that it can force those dealing with the issue to break from the theoretical and face up to the practical and legal realities implicated by the draft bills.

The presence of major pharmaceutical companies in Delaware may make the floor debate on Senate Bill 344 more enlightening than what most other bills receive.

April 26, 2002

When ya gotta go….

As a middle-aged man, this story caused me to feel tremendous sympathy for the victim:

A German desperate to relieve himself for two hours on a packed but toiletless train won $270 compensation for what a court called his torture.

A Frankfurt court ordered Deutsche Bahn (Germany Railways) to pay the man, who walked uncomfortably through the modern high-speed train, stumbling over people sitting in the corridors, as he searched in vain for a working WC.

Sometimes in the translation from German to English there are unintentionally humorous results. As reported in the story, the court ruling included this finding:

"The plaintiff had to torture himself with his urgent need for two hours because he could not find a free toilet[.]"

Another passenger came to the man’s rescue:

The one working toilet was kept locked. A key witness in the case, a fellow passenger, gained access to it after pressuring a ticket inspector.

The Reuters report doesn’t disclose the details, but I’ll bet the hero of this story was in his mid-40s to mid-60s.

The article also did not mention whether the railway officials were flushed with embarrassment over the media’s interest in the dispute. I can readily imagine the manager responsible for the screw-up muttering about "yellow journalism."

(Couldn’t help myself. Sorry.)

Click here for this week’s golf column, if you’d like.

April 25, 2002

A truly federal argument over development

My primary client, a state department of transportation, is charged with unusually broad responsibility.

Unlike most state DOTs, my client controls all roads in the state that are neither municipal streets nor privately owned. There are no "county" or "township" roads.

A residential subdivision street is as much a part of its job to maintain and control as the short segment of Interstate 95 between Maryland and Pennsylvania.

At times, some civic activists attempt to take advantage of the state’s sweeping authority in order to argue against development. They adopt an "If you don’t build it, they won’t come" mentality. They contend that if the state stopped building roads, then what they perceive as excess growth would come to halt as traffic congestion increased.

The reality is a bit different. As Doug Turnbull and I discussed a while ago, tolerance for traffic congestion and delays is extremely elastic. Depending on one’s daily experience, a twenty-minute commute of five miles is outrageous to some and a godsend to others.

From my experience, the only true limit on development is not tied to traffic capacity, but instead is directly related to something far more fundamental--water.

No matter how people feel about traffic, there is absolutely no tolerance for insufficient water supplies, whether for drinking or for handling waste.

This point is not lost on others with similar responsibilities, as illustrated by a fascinating story in today’s Washington Post.

The states of Maryland and Virginia are now embroiled in special litigation before the U.S. Supreme Court over access to water from the Potomac River.

Litigation between states is rare. Under the Constitution, the Supreme Court has jurisdiction for such disputes. As in this case, the usual practice is to refer the case to a special master. The master takes testimony from the parties and issues proposed findings and recommendations to the Court. On occasion, the matter is formally argued before the Justices. The process is a rarely invoked example of truly federal dispute resolution.

In this case, the 1632 Charter from King Charles I granted the entire river to Maryland. However, a 1785 compact between the two states gave Virginia residents the right to use the river and even build structures on it, as long as the improvements did not affect navigation.

The current dispute centers on a water system intake pipe that Virginia’s Fairfax County Water Authority (FCWA) wants to install 725 feet out from the water’s edge. Placing the intake opening that far out would help reduce the treatment costs and other burdens of dealing with muddy water along the shoreline.

Environmentalists on both sides of the river insisted that Virginia’s relatively laissez faire attitude toward development is the reason for the mud. In other words, they used the "If you don’t build it…" argument to try to block the new water system.

Maryland environmental officials balked originally, but eventually granted the permit they insisted FCWA had to obtain from their Terrapin cousins across the river.

The Commonwealth of Virginia now disputes that Maryland’s environmental concerns about the burgeoning development in Northern Virginia can be used to block access to water. The issue is apparently not considered moot, despite the granting of this permit, because of the likelihood of the issue occurring again.

The special master hearing the case for the Supreme Court listened to arguments from both sides this week on two remaining issues:

Does Maryland have the power under a series of agreements between the states to regulate how Virginians use the river? And even if Maryland does not have that authority, did Virginia give up its right to object to the Free State's regulations by going along with them for decades?

Given the colonial-era understanding of the term "navigation," I believe that Virginia will eventually win this suit, as long as it can show that the intake pipe system presents no real hazard to the ability of maritime traffic to use the Potomac. Since any sane water system design would already take that into account, I really doubt that this $11 million project runs that risk.

I also think it’s unlikely that the Commonwealth lost its sovereignty when its political subdivisions obtained permits from Maryland for other projects. This was apparently the first time that Maryland refused to grant a permit. Therefore, it could readily be argued that the permit process before then was a relatively pro forma affair, with no actual legal consequence other than proving formal compliance with the prior agreements.

Since paybacks are hell, and are often hard to trace in a direct line from the original insult to the eventual reaction, it will also be interesting to see how (or if) Virginia eventually responds to Maryland’s effort to influence the Commonwealth’s approach to development.

April 24, 2002

Pushing an agenda with twisted graphics

Mr. Dreck suggested that I should read a post by Raghu Ramachandran today.

The blogging financial wiz knows his audience.

The essay is a well-done dissection of the practice of abuse of graphs to push an agenda.

I'm pleased to pass along a strong recommendation to read it.

April 24, 2002

Four CFR Claudes

Now that didn’t take long, did it?

Democrats to exploit finance-law loophole

The Washington Times today reported on the creation of a new "Progressive Donor Network" to work around the alleged ban on soft money campaign contributions:

The Progressive Donor Network's strategy includes using groups who are viewed as "outside, nonparty messengers" to promote Democrats' agenda. [President and co-founder consultant Michael] Lux said those groups include the Sierra Club and the National Abortion and Reproductive Rights Action League (NARAL).

The most refreshingly honest reaction reported in the story came from a Republican, who can already smell the goose sauce cooking on the stove:

Sen. Mitch McConnell, Kentucky Republican and chief opponent of the new [campaign finance] law, called the group's actions "perfectly permissible."

"Frankly, I'm in favor of loopholes," Mr. McConnell said. "They're gearing up to raise money for outside groups who will then go out and do their bidding for them in the election."

The headline is worth four Claudes. It would have been more fun if it read

McConnell supports Democratic campaign fundraising ploy

Those folks at WashTimes have no sense of adventure.

April 23, 2002

The government must pay you if it says "not ever". What happens when it says "not now"?

The Supreme Court today decided that there are no hard and fast rules in determining whether government action constitutes a regulatory taking of private property rights. The 6-3 majority in Tahoe-Sierra Preservation v. Tahoe Regional Planning Agency reaffirmed prior precedent that gives some comfort to those responsible for government planning, without completely depriving property owners of the chance to show they should be paid for the denial of effective economic use of their land.

It just won’t be easy.

The case involved the delicate conditions in the Lake Tahoe Basin, a beautiful 500-square mile area partly in California and partly in Nevada. The area is facing increasing development pressure, although the District Court noted that the average time between lot purchase and construction was 25 years.

As part of a concerted effort to preserve the lake from runoff and the resulting algae that would destroy its famously clear blue appearance, a bi-state compact planning agency worked on a comprehensive development plan. The District Court noted that by the late 1970’s, it was clear that "a crackdown on development was in the works."

As the agency worked on the comprehensive area plan, it also imposed two moratoria on development in the basin, totaling 32 months in duration. Court injunctions thereafter imposed further restrictions on development, but the Supreme Court majority limited its analysis to the two moratoria and their impacts in preventing landowners in the Basin from building on their lots.

Several hundred individual property owners, joined by a membership corporation representing about 2,000 owners of improved and unimproved property in the Basin, sued the Planning Agency and other defendants for compensation. As the bitterly fought litigation reached the Supreme Court, however, the claim brought by the property owners focused on what’s called a facial challenge to the moratoria regulations.

Instead of addressing the particulars of any individual case, the petitioners challenged the enactment of the regulations as an outright taking for which compensation was due. Justice Stevens noted that this attack was even more difficult because of the petitioners’

desire for a categorical rule requiring compensation whenever the government imposes such a moratorium on development. Under their proposed rule, there is no need to evaluate the landowners’ investment-backed expectations, the actual impact of the regulation on any individual, the importance of the public interest served by the regulation, or the reasons for imposing the temporary restriction. For petitioners, it is enough that a regulation imposes a temporary deprivation—no matter how brief—of all economically viable use to trigger a per se rule that a taking has occurred.

Relying on prior opinions from both Justices O’Connor and Kennedy, the majority disagreed:

[W]e are persuaded that the better approach to claims that a regulation has effected a temporary taking ‘requires careful examination and weighing of all the relevant circumstances.’

These factors include consideration of "investment-backed expectations," and "’the timing of the regulation’s enactment relative to the acquisition of title." In essence, the fact-dependent analysis calls for an "ad hoc balancing approach" described in prior precedent, including Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978).

The Court noted the common use of development moratoria throughout the country, and showed an appreciation for the benefits of that planning tool toward meeting the greater good:

In fact, the consensus in the planning community appears to be that moratoria, or "interim development controls" as they are often called, are an essential tool of successful development.

At the same time, the majority warned that the longer a moratorium is in place, the greater the risk that compensation would be required:

It may well be true that any moratorium that lasts for more than one year should be viewed with special skepticism. But given the fact that the District Court found that the 32 months required by TRPA to formulate the 1984 Regional Plan was not unreasonable, we could not possibly conclude that every delay of over one year is constitutionally unacceptable. Formulating a general rule of this kind is a suitable task for state legislatures.

Chief Justice Rehnquist’s dissent focused on the additional delays caused by the court injunctions imposed after the moratoria ended, blocking development for a combined six years. As he viewed it, the total delay certainly constituted a compensable taking. Justice Thomas’ dissent argued that a taking occurred under these circumstances, leaving only the issue of appropriate compensation.

I certainly understand the role that strategy choices can sometimes play in the decision to press one legal theory over another. In this case, I’m left to wonder whether the property owners would have been better served if they had pressed for an individualized approach to the takings analysis, instead of the categorical attack that failed.

April 22, 2002

To expand coverage in social benefit legislation, amend the law and pay for it.

Workers’ compensation laws were among the first pieces of social welfare legislation enacted in this country. Taking a cue from the system championed by Germany’s Chancellor Otto von Bismarck in the second half of the 19th century, "workers’ comp" addressed two primary concerns as the United States became increasingly industrialized.

First, injured workers were forced to sue their employers for relief from the often-dangerous conditions that caused the accidents. Most could not afford to wait for the legal fences to be hurdled, if those burdens could be surmounted at all.

Second, most businesses faced the risk of potentially ruinous jury verdicts, without the support of a financially sound system of insurance coverage for those risks.

In response, the new workers’ comp laws created a system of orderly, structured benefit payments for injured employees, paid for by regulated premiums charged to the employers. In return for the assurance of compensation, the workers gave up their rights to sue their employers.

As enacted in the United States, workers’ compensation laws typically utilize a rating bureau or similar method to establish the insurance premiums to be paid by employers providing the required coverage. The comp benefits are structurally similar from state to state, usually with payments for total disability, medical expenses, disfigurement awards, diminished earning capacity, and death benefits.

As with Social Security and other social welfare legislation, workers’ comp death benefit payments are typically limited to the employee’s survivors, such as the children and/or spouse.

Therein lies the problem for some of the victims of the WTC jet-bombing.

This week the New York State Workers Compensation Board is set to hear a case brought by the domestic partner of a gay victim of September 11. A similar case will be heard later this summer. New York’s worker’s comp law does not expressly include gay domestic partners among the law’s intended beneficiaries. If these two victims had been married, however, their widows would have each received $400 per week in survivor benefits.

In other contexts, the state legislature previously recognized the issue and dealt with it:

Under New York law, as in some other states, same-sex couples can register as domestic partners and share pension savings and life insurance coverage but they cannot get legal status as spouses.

In addition, life insurance policies can recognize a wide range of recipients upon the death of the policyholder:

The same issues do not arise over life insurance, a voluntary purchase, where anybody can be named as a beneficiary.

New York’s workers’ comp law, however, makes a distinction for those who were married at the time of their death:

"The law covers legal spouses only and does not apply to partners regardless of whether it is a heterosexual or homosexual relationship,'' said Jon Sullivan, a spokesman for the New York State Workers Compensation Board. "The judge will make a determination based upon the existing statutes.''

Although these are obviously troubling cases, because of the circumstances of the employees’ deaths, the law’s limitations should be upheld.

As noted above, workers’ comp law is a defined benefit statute, with an employer-paid insurance premium structure that takes into account the risks associated with the defined benefits and the law’s expressly intended beneficiaries.

Expanding coverage without also addressing the means to pay for it would be frankly irresponsible.

Those seeking to expand coverage to domestic partners of dead workers, whether homosexual or heterosexual, should also identify the source of funds and provide the legal structure for augmenting the employers’ premium payments for the additional, previously unassumed risk.

For future cases, those premium payments can be adjusted to account for the new risks.

Under the delicate arrangement of interests that created workers’ comp law in the first place, however, it’s not enough to simply add to the list of beneficiaries, no matter how sympathetic these cases may be.

If the New York legislature wants to expand coverage, they should also appropriate the money to pay for it.

An event such as September 11 might be enough to convince them to make that choice.

April 22, 2002

I got friends with low expectations*

A story in today’s Washington Times proves that at least one member of the American Roman Catholic hierarchy has his wits about him:

Cardinal sees talks as 1st step

From combined dispatches
The Archbishop of Washington hopes Catholics keep low expectations of an upcoming meeting between Pope John Paul II and U.S. cardinals, although other church officials said the American church will discuss a zero-tolerance policy for sexual misconduct.

"It's only a two-day meeting, and you're not going to be able to solve everything in a two-day meeting," Cardinal Theodore McCarrick told NBC's "Meet the Press" yesterday before leaving for Rome to discuss the sex-abuse issue in the Catholic church with the pope and 11 other U.S. cardinals.

I agree. When considering the potential benefits of this long-needed papal summit, I tend to think that keeping one’s hopes sufficiently diminished shouldn't be too difficult for many of us.

I don't believe I'm being cynical. I prefer to think of it as being realistically positive.

*An homage, of sorts, to Garth Brooks.

April 22, 2002

Some people blog, others go out for coffee—way out

On occasion, my wife will inform me that what I consider one of my pleasant little hobbies is, in fact, an obsession.

With that in mind, I was somewhat heartened to read about another gentleman’s enthusiasm that may have also assumed maniacal proportions.

Thus far, John Winter Smith has stopped by and photographed 2,850 Starbucks stores, as part of his ongoing mission to visit each and every one of the coffee seller’s outlets.

Smith’s goal threatens to grow away from him:

The constantly expanding Starbucks chain has about 3,630 company-operated stores worldwide – and plans to open at least another 625 this year.

On the other hand, Smith showed he has the right combination of fiscal and mental resources for his effort:

Since Smith began calculating his expenses in 2000, he has spent about $6,479 for gas, hotel expenses (when he doesn't sleep in his car), parking, tolls, equipment and, of course, coffee.

"I've always been a little strange. This is just an extension of that," he said. "My father just thinks I'm nuts."

Family members are usually in the best position to know. Just ask my wife.

April 21, 2002

Mistakes were made

A story this weekend concerning written remarks by Cardinal Edward Egan to parishioners in his archdiocese included this quote:

"It is clear that today we have a much better understanding of this problem. If, in hindsight, we also discover that mistakes may have been made as regards prompt removal of priests and assistance to victims, I am deeply sorry," he wrote.

Those with experience in the nuances of bureaucratic correspondence will recognize a few distinguishing characteristics about this statement.

Note the careful use of the passive voice, from which no direct admissions can be determined.

The reference to "hindsight" helps redirect critical analysis away from recognition that options taken were bad from the start.

For the most part, the statement uses the plural, a frequent refuge for those seeking to evade personal acknowledgment of fault.

Even when the Cardinal says, "I am deeply sorry," that part of the quote is, in fact, only a statement that he is sorry that "mistakes may have been made." It is not actually an admission that the Cardinal was among those who "may have" made the "mistakes."

One would be hard-pressed to devise a better example of the genre of bureacratic evasiveness. Imagine how beneficial a version of this quote could have been in other contexts:

  • In a statement after his impeachment for lying about sexual acts involving himself and a White House intern, President Clinton said, "It is clear that today we have a much better understanding of this problem. If, in hindsight, we also discover that mistakes may have been made as regards my testimony concerning that woman, I am deeply sorry."
  • When asked years later whether he felt any sense of responsibility for the Watergate break-in, former President Richard Nixon said, "It is clear that today we have a much better understanding of this problem. If, in hindsight, we also discover that mistakes may have been made as regards efforts to learn about the Democrats’ election strategy, I am deeply sorry."
  • In the aftermath of the Bay of Pigs fiasco, then-President Kennedy addresses the nation: "It is clear that today we have a much better understanding of this problem. If, in hindsight, we also discover that mistakes may have been made as regards support for the anti-Castro insurgents, I am deeply sorry."
  • Before her trial for the ax-murder of her parents, Lizzie Borden makes a statement on the courthouse steps in Massachusetts: "It is clear that today we have a much better understanding of this problem. If, in hindsight, we also discover that mistakes may have been made as regards the proper use of woodcutting instruments in the vicinity of one’s parents, I am deeply sorry."
  • Shortly before being shot by Federal troops while trapped in a burning barn, John Wilkes Booth could be heard by witnesses over the roar of the flames: "It is clear that today we have a much better understanding of this problem. If, in hindsight, we also discover that mistakes may have been made as regards the appropriate expression of dismay with the Lincoln Administration, I am deeply sorry."

With all due respect to Cardinal Egan, whoever wrote this part of his letter did him no favors.

April 20, 2002

Signs that one lives in a small place

Every so often I receive a reminder or two that I live in a small place--and that’s not a bad thing.

Last weekend my back left molars started feeling fairly awful. They felt different and worse than a toothache, and I’d receive a pretty vicious reminder it was a mistake to drink anything hot or cold.

I saw my dentist on Tuesday. The x-rays showed no cracked or missing fillings, but the pain was too diffuse to confirm which tooth was the real trouble spot. The dentist prescribed a painkiller, gave me the sad news that I would need a root canal, and also said I had to wait until it "localized" before he could do much about it.

The pain centered on the next to last lower left molar on Thursday night, so I called him at home on Friday as he suggested. His office was closed for renovation, but he said to meet me there anyway. We walked past the wall hangers and carpet layers to one of the stations, and after a big dose of Novocain took hold, the dentist went after the problem.

As the procedure came to a close I told him I really appreciated him seeing me on his day off, because my wife and I were to go to a black-tie event on Saturday. He said "No problem," and explained what could have developed if I’d waited until Monday. (abcess, swelling, fever, etc.).

Then he said, "Wait a minute. A black-tie event Saturday?"

"Yeah. It’s at the community college where she works--the annual spring fundraiser."

"I think we’re going, too. My wife was setting out my tux earlier today. Do you think it’s the same event?"

I looked at him sideways.

"Where we live, I really doubt there are two black-tie events taking place on the same evening, don’t you?"

"Yeah, you’re right," he laughed. "Now please make sure you go, because I’d hate to not see you there. I’d think it was my fault."

I tried to laugh with him, but with half my face still numb I don’t think it came out quite right.

I’ll bet we have tables near each other.

Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969

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Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients.

That fact may become obvious later on, but it needs to be said here anyway.

Frederick H. Schranck 2002