May It Please The Court
Quote of the Day - The man who reads nothing at all is better educated than the man who reads nothing but newspapers.
The Force of Fifth Estate Blogs and BlawgsBlogging has become the leading edge of the Fifth Estate. The first three belong to the government branches, legislative, legal and executive. The print, radio and television media lay claim to the Fourth Estate, and perhaps rightly so.
The Fifth Estate, however, is the root of the first four, and largely populous. It is us - you and me, and perhaps as large as the internet itself. Some would say the internet is the Fifth Estate, with instant messaging, e-mail, VIOP, video e-mail, webcasting and the like powering it. It is the most basic form of communication - person to person - on an extremely large scale.
Unlike the Fourth Estate, it is not filtered or edited for the masses. It is the masses.
So, how does blogging lay claim to the Fifth Estate? Well, as part of the whole. Take a look at Time magazine, and its recent article, Meet Joe Blog. Even the Fourth Estate has had to join in - now we have ones from the Gray Lady and Washington Monthly. The import is clear.
Blogs and even the most popular blawgs, of which this site is one, thank you very much, are a force.
Now, will they have the staying power of the Fourth Estate? Time will tell.
Taking From the Prosecutor - Not a Good IdeaI shred. In my son's lingo, that might mean that I was a snowboarder, but I'm not. I shred my personal information instead of throwing it into the trash.
Unfortunately, a Houston prosecutor apparently didn't. His identity got stolen. A woman with a history of fraud got the bank account number of Houston's chief prosecutor, and is now accused of writing hot checks.
Whoops. Picked the wrong guy.
Harris County District Attorney Chuck Rosenthal (second one down) has been busy straightening things out. It got so bad he had to withdraw money from one of his children's accounts.
30-year old Sharon Durbin was indicted this week on a felony charge of using a fake check. Rosenthal recused himself from the case and state District Judge Carol Davies appointed a special prosecutor. Actually, she passed 21 fake checks totaling more than $9,000 to purchase computers, groceries and gift certificates at a Petsmart store.
Watch yourself out there.
Prop 65 Suit Stopped Cold For Procedure ViolationLawyers tend to get excited about small details in their practice area. This is one of those. You may be familiar with Proposition 65. It's that proposition-now-statute that requires those signs on buildings and other locations in California where cancer-causing and reproductive-harming chemicals may reside.
Oh. You ignore the signs? So do the rest of us, I guess. I have yet to run into anyone who refuses to go into a building because of the sign or chemicals. They're everywhere.
Anyway, back to the point. In an opinion out of our First Appellate District, comes this: Plaintiffs who sue under Prop 65 must file a certificate of merit before filing suit. (See California Health & Safety Code section 25249.7(d)(1), about one screen down).
Seems like Mr. DiPirro (our erstwhile plaintiff in the opinion above) didn't do that. He filed the Certificate after filing suit.
The Court said no go, and stopped the lawsuit from moving forward. It recognized that the legislature passed the additional requirement in order to stop frivolous lawsuits.
Chalk one up for business.
Toxic Releases Up, No One Agrees WhyI knew things were busier in my practice, and now I may know why.
Releases of toxic materials ticked up five percent last year, for only the second time in two decades, the last increase being in 1997. Some lawyers would be as happy as a mortician in a war. I, on the other hand, am disappointed because releases in 2002 were down thirteen percent. Think about it. All told, in 2002, some 4.79 billion pounds of toxic materials were released. And that was likely the tip of the iceberg. That's the reported amount - not the amount we never hear about.
An environmental group, GHASP, claims the USEPA under-reported toxic releases by over 330 million pounds.
An industry group, the National Petrochemical & Refiners Association has this to say: GHASP's conclusions as misleading, because other USEPA data shows some decreases in nationwide air toxics emissions. The NPRA said the refining industry helped lower pollution through improved technology and management and cleaner gasoline, and pointed to this USEPA air quality report that shows a 31 percent decrease in releases.
But it's not just air, and it's not just one set of chemicals. The USEPA blamed the "extraordinarily large change" on the 1999 shutdown of BHP Copper Company's San Manuel plant in Tucson, Ariz., where 2,000 people worked. Dismantling a plant turns components and product into waste, apparently that got released. By a lot.
"If we were to take that one facility out we would see a 3 percent decrease," said Kimberly Terese Nelson, the USEPA's chief information officer.
The USEPA tracks releases of 650 chemicals at 24,379 facilities. Last year, 25,388 facilities reported their findings, perhaps contributing to the five percent increase, too.
Not necessarily good news.
One in Four Credit Reports BogusWe all have them. Credit reports, that is. You know, the ones that TransUnion, Experian, and Equifax keep on all of us.
One problem, though. Twenty five percent of them are wrong. So wrong, in fact, that one of four are so bad that they result in subprime classification by lenders, sufficient to either deny a credit application or justify imposing a very high interest rate.
This after a series of settlements totaling $2.5 million designed to correct these very problems. In 1996, Congress required Equifax, Experian and Trans Union to provide consumers with a toll-free telephone number and access to credit bureau personnel during normal business hours, with a view to helping people resolve mistakes in their credit reports.
In January 2000, the three credit bureaus paid a total $2.5 million to settle FTC allegations that they blocked calls from more than a million consumers who wanted to discuss their credit reports. Many people also were kept on hold for unreasonable amounts of time, the federal agency said.
The settlements required the bureaus to answer consumer calls within 3 1/2 minutes on average and ensure that 90 percent of callers don't get a busy signal. So, if you call and either get a busy signal or stay on hold too long, you have a right to complain. You don't have to take it.
Of the 197 credit reports collected from people in 30 states, 79 percent had some sort of error, while 54 percent included personal identifying information that was misspelled, outdated, belonged to someone else or was otherwise incorrect. Thirty percent contained credit accounts that consumers had closed but that remained listed as open. Nearly 8 percent were missing major credit, loan or mortgage accounts that indicate creditworthiness, said the Public Interest Research Group.
Beware. Check your credit. Cross-check well before you apply for a major loan. Get it fixed.
The real problem as I see it is that there really may not be any such thing as privacy. After all, if your personal information were truly private, the credit bureaus wouldn't be able to get your bank and loan information in the first place. That way, they couldn't screw it up if they tried.
Think about it.
Imperial Valley Loses Air Quality ChallengeLast October, I blogged about an air-quality case involving Imperial County and the Sierra Club. The October blog post will give you the background.
Basically, the Sierra Club forced the listing of Imperial Valley as a nonattainment area, which means that the entire county did not meet federal clean air standards. The County blamed the failure on bad air coming over the border from Mexico, and fought the designation. The real issue is, of course, money. Nonattainment means that companies in Imperial County are going to have to spend a lot more money to lower the air pollution. The real rub is that they can do nothing to stop the more polluted air from Mexico.
As you would expect after such a loss, the Imperial County Air Pollution Control District appealed to the United States Supreme Court. All the way to the top.
But unfortunately for the County, it was to no avail. The Supremes refused to hear the case, effectively upholding the 9th Circuit's ruling requiring the USEPA to list the County as a nonattainment area.
The Sierra Club, on the other hand, won, and we will ultimately all end up with cleaner air as a result. It's just going to be more expensive, take longer and use more water in an already water-starved area.
The Marshmellow WarrantYou're camping with your grade-school teacher in Yellowstone National Park. Sitting around the campfire, she gets out hot chocolate and makes s'mores. You know, graham crackers, chocolate and marshmellows.
A few ghost stories and it's time for bed, kiddies.
One little mistake, though, but luckily no serious harm, unlike the poor fellow in the last link. Teacher forgets to put away the fixin's. Ranger catches her, issues a fifty-dollar ticket. Expensive lesson, very expensive s'mores.
Time ticks by, say a year or so. Teacher Hope Clarke travels from Riverton, Wyoming to Miami to take a vacation, and goes on a Carnival Fascination cruise. Nice, relaxing trip.
Until she returns to Miami from Cozumel, Mexico. Then, she's hauled out of bed at 6:30 a.m. taken from her cruise cabin, handcuffed, leg shacked and detained for nine (count 'em - that's 9, longer than most people's workdays). Then drug before a federal magistrate to answer for the Yellowstone ticket. For a marshmellow violation.
That's right. The ticket she paid a year ago. The copy of the ticket that the magistrate had (I'm guessing here that the copy came from the Customs Agents who arrested her on an allegedly outstanding warrant from the supposedly unpaid ticket) showed that she had, in fact, paid the ticket.
Admist her sobbing, the Magistrate Judge John J. O'Sullivan apologized and demanded that the Customs Agents answer up. Other than the standard "we thought we were doing the right thing," the Agents had no real answers.
The lesson here?
Be careful kiddies, it's a it's a jungle out there out there, and marshmellows can lead to a life of crime (you're not going to believe this, so scroll down to #4, and look for the "marshmallow (with an "a") effect"). Better to nip it in the bud now.
Past, Present and Future Imperfect DadsHappy Father's Day. My three kids are grown and gone, and I'm lucky if they even remember. Here's one son, who did remember, and who's becoming a lawyer, too.
One of mine is on his way to the practice of law, and attending my alma mater, too. Pretty cool, I think.
My Dad, however, was the farthest thing from a lawyer, who started at the Middleboro, Massachusetts Congregational Church. I guess, though, that the apple does not fall from the tree. We both like to preach, and I think my kids got some of that, too - but don't tell them I told you.
It's nice to remember, and it's nice to look forward. Things are looking good from my seat.
Hope your memories and dreams are bright, too. Enjoy your day, Dad.