May It Please The Court: Weblog of legal news and observations, including a quote of the day and daily updates
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Quote of the Day - The price of freedom of religion, or of speech, or of the press, is that we must put up with a good deal of rubbish.
Full Coverage of Katrina’s DevastationIn light of the government’s decision not to pursue a policy prohibiting the media from covering the recovery of bodies from Katrina-stricken areas, the responsibility for coverage in a respectful nature now falls on the media itself. While I support the freedom of the press to cover the disaster in its entirety, I believe that the media has an obligation to cover the most sensitive areas and issues with dignity and respect, lest they forget the impact these images continue to have on families, friends and colleagues. Now is not the time for sensationalism, but for the media to recognize that the price of great freedom is great responsibility. 
Has The Energy Star Lost It's Luster?And you think the response to Hurricane Katrina has been slow? California has joined fourteen other states in a lawsuit against the Department of Energy over the DOE's alleged failure to update its energy efficiency standards for household and commercial appliances. California AG Bill Lockyer claims improving the standards would reduce reliance on foreign oil. The suit alleges that the agency is up to 13 years behind schedule. In some instances, the suit claims, DOE has failed to issue any new efficiency standards in the last four years. The Energy Policy and Conservation Act provides for mandatory updates of these standards, the suit claims. The immediately previous DOE link notes that the government "periodically issues new standards or rulemakings for specific appliances." The rule making link is no more clear. According to this Sacramento Bee article (free registration required) written by Andrew McIntosh, "The states, which say they represent a total of 118 million Americans, decided to sue after Energy Secretary Samuel W. Bodman ignored a joint letter they sent him in July. The letter asked his department to respect the law and adopt a binding schedule for implementing tougher minimum standards." Last month, the Barton-Domenici Energy Policy Act of 2005 was signed into law, which gave appliance manufacturers tax incentives for producing more energy-efficient appliances in the US, delayed the time to get an Energy Star rating for nine months and added a requirement for DOE to match state rebates for purchasing appliances (did you know the government helped fund our purchase of appliances?). The appliance manufacturer's non-profit trade group website is here. Apparently, the lawsuit claims tax credits wouldn't be necessary if the DOE just promulgated the required standards. You can decide whether we're going to pay the cost one way (taxes) or another (increased purchase price). The real question seems to be how we're going to save money on fuel prices.
No Blue Light Special For Wal-MartThe City of San Marcos already has a Wal-Mart, and residents there were concerned with an attempt by the company to build another one. Residents got a referendum on the ballot, and Wal-Mart tried unsuccessfully to stop it. So it campaigned, and spent money to get voters to approve the store. Local residents tried hard to keep Wal-Mart to one store in town. Residents voted, and San Marcos still only has one Wal-Mart. In the course of the election campaign and litigation battles, Wal-Mart lost steadily. The proponents of the referendum, however, wanted more. They wanted their attorneys fees and costs back, so they asked the Court. Just yesterday, the Court said yes and granted those fees and costs to the residents who kept Wal-Mart out of town. Now, the property will be developed for homes, and they can still shop at the (only) Wal-mart in San Marcos.
Association of Irritated Residents v. USEPA, Still More Or Less IrritatedWith a name like the "Association of Irritated Residents," the group deserves some publicity. Especially since it took on the USEPA in a suit to force the USEPA to live with a 2006 deadline for meeting PM-10 standards set for the salad bowl. That's the nickname for the San Joaquin Valley here in California. The Association of Irritated Residents (no website available) wanted the Clean Air Act's required five percent reductions of PM-10 (airborne particulate matter less than 10 microns) to start by 2006, the original deadline set by the USEPA. When it appeared that the Valley would not be able to meet the 2001 deadline, it was extended to 2006, and the USEPA proposed to push the deadline back even further to 2010. The Association of Irritated Residents was, not surprisingly, irritated. They sued, along with a host of other non-profit groups, including the Latino Issues Forum, Medical Advocates for Healthy Air and the Sierra Club. Now, however, they're even more irritated. The Ninth Circuit handed them a loss, and authorized the USEPA to push back the compliance deadline to 2010. According to the San Joaquin Valley's Clean Air Now group, "The Valley is also one of the most polluted regions in the state and country. The Valley does not currently meet health-based standards set by the United States Environmental Protection Agency for ozone and particulate matter. On average the Valley exceeds the federal health-based standards for ground-level ozone 35-40 days and more than 100 days over the state ozone standard. While levels of airborne particles exceed the federal standard less than five times annually, because the California standard is set at a lower and more protective level, the Valley exceeds this limit an average of 90-100 days per year. " Looks like it's going to stay that way for a while longer, and residents may be even more irritated. The San Joaquin Valley Air Pollution Control District has a plan, however, so maybe it won't take that long.
Coast To Coast Internet Radio Discusses Opposing Views On Roberts' NominationFor our second internet radio show on Coast to Coast (with me and my Right-coast co-host Robert Ambrogi), today we zero in on John Roberts' nomination for Chief Justice of the U.S. Supreme Court with a lively discussion. Our guests on the show are Professor Craig Bradley from Indiana University School of Law, who clerked for the late Chief Justice William Rehnquist, Elliot Mincberg, Vice President and Legal Director of People for the American Way, a nationally known advocacy group opposing the Roberts' nomination, Professor Gail Heriot from the San Diego School of Law, former counsel to the Senate Judiciary Committee and who writes the Right Coast legal blog and Lyle Denniston who has been one of America’s leading Supreme Court reporters for 45 years. Its an insightful group weighing in on one of the most historic times for America's high court. Click on the podcast icon below and give a listen to our approximately half-hour show, or download MIPTC's Podcast RSS feed. Thanks for tuning in! Who Bears The Risk Of Loss Of Your Internet Catalog Order?In short, you do. Brawn of California, the parent company of a number of companies, including International Male, charged its customers $1.48 for insurance to cover items that were lost in transit between its warehouse and the customer. One customer apparently tired of paying this fee, sued, claiming that the risk of loss belonged to the company until the item was delivered. He thought the slight charge added up to an unfair business practice. The court, however, saw it differently, looking to the Commercial Code for some guidance. With its tongue planted firmly in its cheek, the court reported that commercial law wasn't quite applicable between an individual and a company, saying, "As the Commercial Code, and the cases cited there, typically involve arm’s-length sales between fairly sophisticated parties, the fit is not perfect." The legal issue pivots on whether your purchase from the catalog company is a shipment contract or a destination contract, and whether it's a sale-on-approval or sale-on-return contract. The first component is easy to see. If the contract is based on shipment, then the buyer bears the risk of loss once the item is shipped from the catalog company. If, on the other hand, it's a destination contract, then the catalog company must get the item to the buyer, and assumes the risk of loss until the buyer receives the goods. It's a great law-school exam question. Whether your purchase is a sale-on-approval or sale-on-return contract is another matter. Usually, if the sale is subject to approval, then the seller bears risk of loss until the buyer accepts. A sale-on-return contract is designed to facilitate resale of items. Remember, these laws were written for dealings between merchants, who don't generally take the time to write down the contractual provisions of each transaction. Here, the court noted, Brawn specifically dealt with this issue in its contract, and charged the insurance fee. The court presumed that if you bought goods, then you consented to those terms. End of story. The tricky part came in the consequences. The trial court had found in favor of Jacq Wilson, the plaintiff who sued Brawn, and awarded him litigation expenses in the amount of $24,699.21 and attorney fees in the amount of $422,982.50 over this $1.48 dispute. The appellate court, however, reversed, and Mr. Wilson recovered nothing, and instead gave Brawn its expenses on appeal.
Solomon v. Lord - It's Not a New Case, It's a Great ReadMIPTC occasionally gets advance copies of books to read, and one showed up in my inbox through the comments to this blog. It's Solomon v. Lord, available September 2005. I started laughing on page two; I'm halfway through the book and haven't stopped yet. Author Paul Levine is a lawyer who's written the book for general consumption, but lawyers won't be able to put it down. It's a startlingly accurate portrayal of criminal trial lawyers and the judicial system, and a compelling read. You won't go wrong if it's the only book you take on vacation. You'll get an inside book on the law and enjoy every page. Levine is a cross between Grisham and Leno, and the book shows it.
Sex Is Not The Only Way Employees Can Get Harassed"[S]houting, 'screaming,' foul language, invading employees' personal space ... and [making] threatening gestures" is now enough to get sued for gender-based discrimination under Title VII of the Civil Rights Act of 1964, even though such actions were not overtly motivated by the victims' gender. So says the Ninth Circuit in its opinion in the case Christopher v. National Education Association. The case wouldn't normally be remarkable because such behavior would be sufficient to create a hostile environment. Now that it's been linked to gender-based discrimination, we have a new, hybrid cause of action. In its short, 13-page opinion, the Ninth Circuit unanimously sent this case back to Alaska courts for further proceedings. The Ninth Circuit provided some guidance to deal with its reversal of the summary judgment in favor of the defendant supervisor. "We hold that offensive conduct that is not facially sex-specific nonetheless may violate Title VII if there is sufficient circumstantial evidence of qualitative and quantitative differences in the harassment suffered by female and male employees." In other words, go look for it, and if you find it, find in favor of the employee. Now, the screaming supervisor will defend his actions once again. Hostility can be sexually based. The lesson? Be careful how you say what you say to your employees.
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