November 19, 2005
Quite a pile of what-ifs

We Americans are not shy about expressing our governmental policy preferences.

The presence of several million blogs on the Internet, many of which are devoted to matters political, is just one of the more recent signs of this trait.

There are many other ways in which millions of us make sure that others know what we think should and shouldn’t be done. Unfortunately, some people don’t seem to accept the fact that using the Federal Courts to push their political agenda requires something more than just their opinions.

This week the D.C. Circuit Court of Appeal reminded them of this limitation.

The Environmental Protection Agency oversees several aspects of the nation’s waste disposal systems, including landfills. Under current rules, landfills are required to minimize the amount of liquid that enters the fill areas, so as to retard biodegrading and the creation of noxious gas from that process. Landfills that permit such infiltration are called bioreactors.

In 2004 the EPA adopted a rule that allows for some degree of landfill experimentation. This could include allowing more liquid into these experimental sites. The regulation grants this authority to the directors of approved state landfill programs, for what are called Research, Development, and Demonstration Permits. 69 Fed. Reg. 13,242.

Not long thereafter, Wisconsin’s natural resources agency announced that it was considering the adoption of a rule that would allow it to issue RD&D permits at certain landfills in the Dairy State.

The GrassRoots Recycling Network, Inc. makes no secret of its members’ opinion about the best way to handle waste. It’s right there in the corporate name. The organization is also not averse to using the courts to further its goals.

After Wisconsin announced its tentative proposal, Grass Roots sued the EPA, challenging the Federal agency’s authority under the Resource Conservation and Recovery Act (RCRA) to use the RD&D regulation. 

The GrassRoots lawsuit ran into trouble, however, when it came time to show that any of the organization’s members faced any imminent risk of harm at this point in the regulatory process. None of them actually had any standing to sue the EPA.

Writing on behalf of a unanimous panel, Chief Judge Douglas Ginsberg noted that

The “irreducible constitutional minimum of standing” has three elements: (1) injury in fact, (2) causation, and (3) redressability…. Its burden of proof is to show a substantial probability,” …that the RD&D Rule causes at least one of its members an injury that is “concrete and particularized” and “actual or imminent,” not “conjectural or hypothetical,” [citations omitted].

In this case, however, the two affidavits on which GrassRoots relied for this purpose were a pile of what-ifs:

Each member states that he or she lives approximately 1.5 miles from a landfill in a Wisconsin town…. Angela Petersen states: “If I had known that the Metro Landfill [in Franklin, Wisconsin] could be converted into a bioreactor ... I would not have purchased my property, or I certainly would have paid considerably less than what I paid, because of the potential problems that can now occur.” Robin Fate similarly states he “might not have” purchased his property had he known the landfill near his home in Sarona, Wisconsin might become a bioreactor.

Neither affidavit is evidence of the “actual or imminent” injury in fact required for standing to sue. Each affiant states that at the time of purchase his or her home would have been worth less to him or her, not that the home in fact is worth less, due to the RD&D Rule. In other words, GrassRoots fails to assert, much less to offer evidence, that the fair market value of any member’s home is less than it would be but for the rule.

The Circuit Court noted that GrassRoots’ standing depended on a string of suppositions:

Whether the Franklin or the Sarona landfill will be converted into a bioreactor depends upon whether third parties take several specific steps. First, the Wisconsin Department of Natural Resources must approve the proposed (or some alternative) rule for issuing RD&D permits. Next, the EPA must approve Wisconsin’s proposal. See 42 U.S.C. § 6947(a). Thereafter, the owner of the landfill must apply for a permit, and the Wisconsin Department of Natural Resources must, after “hold[ing] a public hearing to solicit public reaction and recommendations,” grant “the proposed permit application.” 40 C.F.R. § 256.63(a). Even then, the fair market value of the affiants’ homes might not decline; recall that each RD&D permit must be as protective of human health and the environment as would be a non-RD&D permit. See id. § 258.4(c).

This “multi-tiered speculation,” [citation omitted], instances events that, although by no means impossible, are at this time neither actual nor imminent but wholly conjectural. It is hardly surprising, therefore, that GrassRoots has offered no evidence of an actual decline in the fair market value of any member’s home.

Under these circumstances, the Circuit Court ruled that GrassRoots had no standing to sue the EPA, and dismissed the case.

The Wisconsin folks who don’t like this bioreactor landfill idea have other means available to achieve their ultimate goal. They can go to their Senators and Congressmen and seek a legislative solution. A line item in the EPA budget could prevent the use of Federal funds to implement the RD&D rule, for example.

They can also go to their state legislators and state government and seek to convince Wisconsin to drop the idea of experimenting with liquid waste anywhere near their homes. 

What they can’t do, however, is run into court before there’s any real threat.

November 17, 2005
Annals of billing judgment

Some folks’ notion of the proper exercise of what is sometimes called “billing judgment” can be truly startling.

Among lawyers, this term usually means applying a certain amount of discretion and restraint when billing clients for the hours devoted to an assignment.

Not long ago, a Seventh Circuit panel led by Judge Richard A. Posner had occasion to remind some attorneys that a similar exercise of discretion in seeking fees and costs from the court would be a very good idea. In fact, the failure to use good judgment can have some decidedly negative consequences.

Budget Rent-a-Car System, Inc. sued a company called Consolidated Equity, LLC in the Northern District of Illinois. Consolidated appealed the case to the Seventh Circuit, but the appeal was quickly dismissed as frivolous before any briefing had been filed. The Circuit Court then awarded sanctions to Budget for its costs and attorneys’ fees incurred in defending itself.

Unfortunately, Budget’s attorneys then distinguished themselves in their subsequent request, but not in a good way:

Budget’s only appellate submission was a four-page jurisdictional memo that cites five cases. Budget claims that the memo cost $4,626.50 to produce (3.3 partner hours at $425 per hour and 10.4 associate hours at $310 per hour); for so modest a product, 13.7 hours of high-paid professionals’ time are too many.

But wait—there was even more:

Budget has also included in its statement of fees and costs its fees for preparing its motion for sanctions and the statement of fees and costs itself—a total, again too high, of $4,354 (1.2 partner hours and 12.4 associate hours). It is inconceivable that this is the going market price for such exiguous submissions.

Budget’s counsel didn’t stop there, however:

Budget’s statement of costs, at $198.30, is also too high. Budget claims in an affidavit to have incurred a $165 “filing fee,” but there is no fee in this court for filing a jurisdictional memorandum or a motion for sanctions, and the billing records reveal that the $165 was actually a fee for the admission of one of its attorneys to practice before this court. Budget’s mischaracterization further undermines the credibility of its submissions.

Ouch.

Faced with this exercise of bad judgment, the panel quickly decided on the proper response:

When an award of fees is permissive, denial is an appropriate sanction for requesting an award that is not merely excessive, but so exorbitant as to constitute an abuse of the process of the court asked to make the award.

Our previous order granting the motion to award fees and costs is VACATED and the motion DISMISSED.

One hopes that the Budget attorneys do not compound this result by billing their clients for the same work product.

Sending the client a copy of the Court’s order will be painful enough.

November 15, 2005
In which I disagree with young Master Goldberg

Glenn Reynolds pointed to a new GOP video today.

The three-minute short begins with a selection of on-the-record comments by several widely-known Democrats, including Senators Clinton, Rockefeller, Bayh, Biden, Reid, and Kerry, as well as President Clinton and two of his Cabinet members. All of their statements support military action against Saddam Hussein. The piece ends with a separate clip from President Bush’s Veterans Day speech last Friday.

The music underlying the videos of the Democrats is a piece that first hit the airwaves in 1971. Reynolds noted,

Whether the use of Traffic's The Low Spark of High-heeled Boys as the soundtrack was deliberate or not, I don't know, but I think we're seeing another Karl Rove sucker-punch unfold.

Master Jonah Goldberg of the National Review reacted strongly to this remark: 

Glenn Reynolds is disturbingly knowledgeable of Traffic's ouevre.

I can understand why Goldberg feels this way. Born in March, 1969, the young man was just two years old when Traffic’s eponymous album was first issued. He may have first heard Low Spark during a music history class, or after rummaging through the old albums of his parents or their friends.

In contrast, Reynolds is on the outer edge of Boomerdom, born nine years before Goldberg. He’s also a musician. There’s every reason to believe that Reynolds heard this song when it first came out, and many times thereafter.

For the Boomers that the GOP may have been trying to reach with this advertisement, using this pop classic as background music was brilliant, even if it was unintentional.

From my own Boomer perspective, there’s simply nothing at all disturbing about the fact that Glenn knows Traffic.

On the other hand, if the GOP had used the music of OK Go for this video, that would be unsettling.

November 11, 2005
Film Festival Movie Ratings
(Updates below)

Here are the short descriptions, ratings, and links to the films I've seen at this year's Rehoboth Independent Film Festival, using the five-step rating coding that the Festival uses for judging and awarding the films: outstanding, very good, good, fair, and poor.

American Potpourri Shorts

Flix—a sharp, funny screed about Hollywood’s commercial film industry. Directed by Michael Gleason. Very good.

The Road Taken—computer-animated parable of a young woman’s choices and the consequences, during a single, eventful year. Directed by Daisy Church. Very good.

Pretty Ugly—Intensely awkward moments for a young woman in the week leading up to her high school prom. Her gay father and his partner don't make it any easier. Directed by Brooke Lehman. Very good.

Pee Shy—Imagine a humorous M. Night Shyamalan story about a deeply flawed Boy Scout leader and his small troop on their annual camping trip. It’s a wet scream. Directed by Deb Hagan. Outstanding.

I Killed Zoe Day—Promising murder mystery zig zags as two friends recover from an tequila-induced, memory clouded recovery from the night before. Directed by Powell Weaver. Very good.

Such Great Joy—Young woman brings her new lover home to meet her parents, who’ve been assuming she’s straight. Farcical complications ensue. Directed by Michelle Kramer. Good.

Night Swimming—Young man about to leave home for college has an unexpected one-night fling with a buddy. I’ve seen this plot line before—often. Good. Directed by Daniel Falcone.  

The Ninth Day (Der Neunte Tag)—Outstanding movie about a Luxembourg priest facing an awful moral dilemma, while on short furlough from the Dachau concentration camp and thousands of his fellow priest prisoners. Directed by Volker Schlöndorff (The Tin Drum).

UPDATE:

Caterina in the Big City (Caterina va in Città)—Imagine Italy divided into Red Provinces and Blue Provinces, with an innocent young girl from a Red Province suddenly thrust into Rome, a hotbed of Blue elites, oblivious and comfortable in their superiority. Then add to it an Italian version of Mean Girls. Alice Teghil is delightful in the title role, and the movie has its moments, but the social/political plot line is not at all subtle. Directed by Paolo Virzi. Good.

Asbury Shorts—We missed the first few due to overlapping schedules. This collection ran one time, and was sold out almost immediately. Most had been shown at prior RBFS Festivals, but it was great fun to see these again.

Lunch—Sometimes your fellow lunchmates in the office cafeteria can surprise you with their meal selection. Directed by Matthew Ehlers. Outstanding.

In God We Trust--One of the best “second-chance in life” movies ever made. Directed by Jason Reitman. Outstanding.

Zen and the Art of Landscaping—Gardener swept into suburban family’s “issues.” Directed by David Kartch. Outstanding. 

The Quality of Mercy—Someone really doesn’t like critics. Directed by Stephen Marro. Very good.

The Bloody Olive--Belgian film noir more twists than a bag of pretzels. Directed by Vincen Bal. Outstanding.

Perpetual Motion—Combine two bits of folk wisdom about falling objects, and observe the results. Directed by Kimberly Miner. Outstanding.

This is John—You can never create the perfect outgoing message for your answering machine. Directed by Jay & Mark Duplass. Very good.

UPDATE:

Music from the Inside Out—Ruminations on the meaning of music, its effects on the musicians in the Philadelphia Orchestra, and the inspirations that led these remarkably talented artists to their chosen profession. Directed by Daniel Anker. Outstanding. 

Ladies in Lavender—A young musician foreigner washes ashore in pre-WWII Cornwall, discovered by two sisters (Dame Maggie Smith and Dame Judi Dench). His recovery also stirs up unexpected emotional responses in both women. Features great violin by Julian Bell. This was voted the Audience Favorite at this year’s Festival. Directed by Charles Dance. Very good.

UPDATE:

The Conventioneers--This cleverly produced romantic comedy set during the 2004 Republican presidential convention in New York City uses amateur footage of the event and especially the protests for atmospheric shots throughout the story. The movie website's press kit claims it is a "fair and balanced love story"--it is not, but I'm not suggesting it had to be, either. The ending reminds me of O. Henry's methodology. Directed by Mora Stephens. Very good.

I'll post a short description of the Festival winners in the various categories soon.

November 10, 2005
The Book's Out on Charter Schools

Joanne Jacobs has been on my home page blogroll from the very beginning, almost four years ago.

She focuses on education issues with an attitude that combines a dry wit with a serious, deep interest in improving the learning environment for all kids.

Her other long-term project, a study of an inner city charter school in San Jose, California, is currently available through Amazon:

Our School : The Inspiring Story of Two Teachers, One Big Idea, and the School That Beat the Odds.

You can buy it now.

Really.

You can.

What are you waiting for?

Go, already.

November 9, 2005
Film Festival 2005

Lots of folks attended tonight's opening night ceremonies for this year's Rehoboth Independent Film Festival.

The showing of Ballets Russes, along with a demonstration of classical ballet by the Ballet Theater of Dover, earned standing ovations from the crowd.

Nonetheless, the largest applause occurred when Board president Beth Hochholzer announced that beginning in January 2006, one of the 14 screens at the Movies at Midway will be dedicated to showing independent films selected by the Film Society, under an agreement worked out with the owners of the theater facility.

I'm planning to go to about eight more movie showings over the next few days, including at least two collections of shorts. Mini-reviews will appear here, using the same rating scale applied by the Festival to determine the eventual award winners in each category.

Ballets Russes was outstanding, by the way.

November 9, 2005
Oh, please

Some folks remain utterly clueless.

Former CBS News producer Mary Mapes is in this unfortunate category, if the story of her recent interview with ABC News reporter Brian Ross is true.

Mapes was dismissed after the 60 Minutes II debacle of last year, in which the producer worked with Dan Rather to push a fully discredited Bush/National Guard story that led to several dismissals and early departures, including herself and Rather.

The parts of her interview that struck me as most indicative of Mapes’ inability to recognize her own failings was her stubborn insistence on a skewed notion of who is responsible for using authentic documentation to back up a news story:

In her first interview since being fired, former CBS News producer Mary Mapes maintains that her controversial "60 Minutes II" story on President Bush's National Guard service was "true" and that "no one has proved that the documents were not authentic."

Mapes says she is continuing to investigate the source of the controversial documents whose authenticity was seriously questioned by the CBS panel. She tells Ross that she had no journalistic obligation to prove the authenticity of the documents before including them in the "60 Minutes II" report. "I don't think that's the standard," she said.

Oh please.

Pray tell, who would bear that responsibility?

The viewers? And why might that be?

Ms. Mapes really needed to catch a ride on the clue-train, but it already left the station.

This bizarre state of media affairs reminds me of one of the basic principles of American property law-you can only show your entitlement to property rights on the strength of your own title, and not by attacking the defects in someone else’s claim to it.

The same point applies to any use of documentary evidence, be it for a trial or for a trendy TV news show. You just don’t use a document if you can’t vouch for it with some credible proof. 

No such proof appeared in this case, and none could ever have.

Geez.

November 7, 2005
It's Movie Cookie time again

The eighth annual Rehoboth Independent Film Festival starts this Wednesday.

Therefore, it’s time to make the cookies. 

For several years I’ve made a large batch of Oatmeal Raisin cookies to bring to the five-day movie marathon. Each one is about 3-4 inches in diameter, and three of them will do just fine for watching a single feature film. 

Several Festival fans are not shy about asking if I’m bringing a batch again, and I aim to please. Accordingly, blogging may be a little lighter than usual for the next few days. Baking takes time, y’see. 

Here’s the link to the cookie recipe, if you're interested.

November 6, 2005
Death pizza

Charles Hill is blessed with an encyclopedic knowledge (and collection) of popular music, some of which he occasionally shares with his readers at Dustbury.com. 

His most recent post on the subject is devoted to teen death tragedy songs, an oddly compelling minor musical category from the early 1960s.

I'll bet somewhere someone did a doctoral thesis on the reason why these ditties were so popular--probably suggesting something to do with fatalism and the threat of nuclear war at the time.

Hill’s piece includes a very funny shorthand description of several of the better-known dead teenager hits.

I also enjoyed the National Lampoon’s 1973 parody of these songs, “Pizza Man,” which appearing in Lemmings, their famous off-Broadway show and soundtrack album.

After listening to that song, I don’t think I ever looked at the front grille of an automobile in quite the same way ever again.

November 6, 2005
North Country

When we go to a movie that openly claims to be "inspired by a true story," it's pretty common for one of us to try to find out how much truth is in that statement.

Last Friday night we went to see North Country, the Charlize Theron movie about sexual harassment in a Minnesota mining company.

After reading the 8th Circuit Court of Appeals decision in Lois E. Jenson v. Eveleth Taconite Co., however, I came away with a newfound appreciation for how slippery the term "inspired by" can truly be.

For example, the lawsuit dragged on for nearly a decade, and the Circuit panel was obviously frustrated at the litigation tactics used by both sides:

The lawyers in this case delayed its resolution by exercising senseless and irrelevant discovery, and by making endless objections at trial. But "the buck stops here;" the judicial system allowed the lawyers to do what they did.

In stark contrast, the movie gives the impression that the case settled quickly, soon after a stirring, quick-moving bit of courtroom drama.

That said, I don't wish to challenge the artistic merits of the movie. It's one of the most serious films I've seen this year. Thankfully, it deals with a tough subject without making Theron's character a candidate for sainthood.

For those who'd rather not read the lengthy court opinion, there's a very good synopsis of the true story at the ATLA website.