This page includes posts from
November 6-19, 2005 in the usual reverse
order. Each posting on the home page is perma-linked to these
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
In this case, however, the two affidavits on which GrassRoots relied for this purpose were a pile of what-ifs:
The Circuit Court noted that GrassRoots’ standing depended on a string of suppositions:
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.
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:
But wait—there was even more:
Budget’s counsel didn’t stop there, however:
Faced with this exercise of bad judgment, the panel quickly decided on the proper response:
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.
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,
Master Jonah Goldberg of the National Review reacted strongly to this remark:
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.
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
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).
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.
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.
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.
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:
You can buy it now.
What are you waiting for?
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.
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:
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.
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.
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.
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:
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.
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 2002-2005