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Home | Transportation Evolved We are dedicated to creating the best guides, articles & product reviews for the growing market of personal transportation devices. We'll compare the best brands in the business and equip you with all the information you need to make an informed decision. Happy Riding!
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How To Declutter And Organize | Just another WordPress site GOOD NEWS FOR Stressed out moms... small space dwellers…. the chronically disorganized and… everyone else who is overwhelmed with their stuff "How to drop your clutter baggage and feel the amazing relief of a fresher, spacious, organized home in 7 days or less" How you can easily live lighter and happier where you are right now What you are about to discover How to de stress, so you feel good, and make a plan in the midst of chaos Where to start-what to do- what Not to do. All your questions and more covered in this all-in-one- guide How to see your clutter, make quick decisions and easily get rid of it Awecome practical strategies for pain free decluttering at your fingertips 5 No Fail Organizing Keys for the chronically organized Easy tips to keep simplifying, decluttering and organizing in minutes everyday What to do when you have a messy house and you want to get organized immediately The 3 step strategy when organizing kids, their rooms and their things The 3 costly mistakes everyone with clutter makes To: Anyone who's overwhelmed and frustrated with all the stuff they have in their lives From: Jane Alais, fellow unclutterer and professional organizer Are you fed up and stressed with the mess and chaos clutter brings. Maybe you've searched for answers..... but feel confused by all the random bits of advice you read on the net..... and find it impossible to know where to start and what to do? Then this will be the most important message you will ever read. Big Call? Maybe. Here's why Let me explain… Hi, my name is Jane A few years ago I moved a ton of possessions from Canada..... to a tiny two bedroom house in Sydney Australia. Not only was this house small it had NO closets, cupboards, basement or garage. At the time I didn't even know houses existed without basements. I mean… where's a girl supposed to keep all her extra stuff? Maybe you can relate to my story. Our house was full BUT when I had my children things quickly got overwhelming. We had way too many things, absolutely no storage space and I kept everything. Don't get me wrong..... I love being a mom..... but adding all the baby and toddler stuff to my overfull house made it impossible to enjoy my kids. Clutter made everyday hard work. I seemed to be picking up and putting away all day long. I began to feel chronically overwhelmed. I was a busy mom- with a million things to do every day. The housework was never ending. I seemed to be picking up and putting away all day long. No matter what I did... everything seemed disorganized I tried to be organized and find the right place for things. But I didn't have the knack. And guess what... I spent tons of time every day looking for... shoes, socks, pens and keys. You name it I looked for it. My overfull house drained my time and... I felt tired, grumpy and overwhelmed all the time. It was impossible to keep my house basically neat and tidy. By the way. This is where my story gets really alarming I was so tired I couldn't face my cluttered disorganized kitchen so we often ordered pizza. I found out I had spent more at the pizza place than I had in my bank account. Whoops! What a shocking wake up call. I never realized how much money clutter was costing me. Expensive take out food, costly disorganized grocery shopping, throwing away food we never ate, buying clothes I never wore, buying stuff on sale because I might need it, office supplies I never used and the toys my kids never played with. At that moment I realized... my clutter, mess and disorganization cost me thousands of dollars. So I thought I have to do something to get my home organized and stop wasting money. I was determined to get out of this clutter crisis and live lighter, simpler and manage money better. But where to Start? So, of course I went to the internet, I don't know about you... but very quickly I got into information overload! There were so many different tips and a lot of useless information out there. If one person said do this the other said do that. It was so confusing. The information was piecemeal and complicated. I found it too difficult in my overwhelmed state. All I wanted was a simple- join the dots- all in one- resource that could handhold me through every step of the process, start to finish. I wanted a new perspective. A fresh start AND a quick easy way to dump all my clutter baggage. Just give me simple easy to follow info in one place! Anyway read on and let me save you the brain draining hours in front of your computer, But if you are happy to stop and patch bits of info together, be prepared to be stuck, confused, frustrated...... and keep your clutter forever Back to my story.. So I went back to the bottomless pit of scattered online information… to try to put something together that I could use. While I was searching for answers- I thought about some of the problems I had. Maybe you can relate to this? Have you ever felt like this? You think information to help me would be easy to find? Hhhmmmmm So I tried to put together relevant (so I thought) information to attempt to get things under control. It didn't work. The information wasn't simple or actionable. There were too many steps and no plan. Most of the "declutter information" saw me getting rid of the wrong things and regretting decluttering again. The information didn't help me make the right decision or translate to my life and my home. I would start clearing stuff out, then it would get too hard and stopped. The clutter just kept coming. I struggled with staying motivated but all I felt was fear. It frustrated me to no end To cut my long story short... I had a brilliant idea. Instead of decluttering I bought dressers and cupboards to put my stuff in. Now things started to get a lot worse. I collected more stuff and... I had more drawers to look through. I became more and more disorganized. The frustration was building. I started spending big bucks on containing my clutter. I even thought about renting a storage unit. To complicate things I continued to make bad decisions. In a frustrated decluttering frenzy I accidentally threw out some valuable jewelry, (left in a pocket of a pair of jeans I gave to charity). I donated an expensive carpet and then I had to spend money to replace it. I sold my nice dishes and kept my cheap ones. I was dumping the things I loved in the name of clutter! What was I thinking! This increased my fear of letting things go so I just hung on to things even tighter. The internet information I gathered told me to organize my clutter. So I, bought organizing products. Guess what….. some of them were the wrong size, others ugly and….. most of them just added to my disorganization. So now I had containers of things stacked everywhere. You're probably wondering what I did. Well… I was so angry about the wasted money and even bigger mess I gave most of the containers away. My daily battle was in the kitchen. It was so disorganized... I could never figure out where to put things. Deciding dinner started at 5 o'clock- with a quick dash to the store. My grocery bill was huge. I probably trashed around 40% of the food we bought. Don't get me started on the mess in our office. Piles of paper, chaotic, bill paying system and boxes of disorganized files. I just didn't know where to start or what to throw out. And guess what? I was a grumpy mommy and rotten partner. Household tasks were so time consuming… I couldn't relax at home. My stress and unhappiness were starting to go off the charts. I was tired of the same generic how to. It didn't give me support or change the way I thought about stuff. In fact all it did was make me waste a lot of money and end up creating even more clutter. And this is just the tip of the iceberg So here I was in my shrinking home... feeling more and more depressed because my dream of an easier lifestyle and beautiful home were drifting far away. I didn't seem to be able to get my head above it all. Have you ever felt like this, so stuck, not knowing what to do? Desperate to find some answers? Desperate to change? Luckily as chance would have it I came across a community organizing course. To make myself feel better I enrolled and I loved it. This course inspired me. I started to understand at a deeper level why decluttering was a problem for so many people. I asked my friends with great organizing genes about their habits, systems and routines. I talked to people I knew who had conquered their clutter to live happy simpler lives. I got a decluttering buddy and… started to test drive my ideas. As I downsized my stuff. I tried out the best of the best strategies to help others declutter their home and get organized successfully. I learnt so much from every decluttering project. As you can imagine all this experience really paid off. So I dumped the advice that was useless and kept the concepts that were inspiring, fun and worked. I thought just maybe there are other people like me out there? You know.... who would benefit from my experience… and make life so much easier by having all the solid consistent information in one place-in one easy to read book. And PRESTO-6 months later.... after many late nights and weekends at the computer I'd done it. Introducing a simple easy to read e-book that will make all the difference to your life, your family and your home. Here's a quick preview of the valuable information you'll have at your fingertips. What you get is a proven practical room by room, step by step blueprint with flexible strategies that you can make your own. Easy to understand language… and specific tips for all those clutter hot spots in your home like clothes, closets, files and paperwork. I've included 5 decluttering methods so you can swap, change and use what really works for you and the one decluttering technique that you must know. Not everyone is the same, or has the same amount of clutter so these strategies and techniques can be tailored to your energy, time and mindset. And that's just a small taste of what's in store I even have special sections to simplify and organize your life. Things like menu planning, staying motivated, how and where to start and organizing kid's things. I've even added quick routines that keep your house tidy and clean. There are motivating quotes, moral boosters and easy, organizing tips. Did you know that getting rid of clutter eliminates 40% of housework in the average home? (Ottawa Citizen, newspaper (1/14/00 80% of the clutter in most homes is a result of disorganization not lack of space (Ottawa citizen 1/14/0) Now I would like you to experience what your home can be: Just picture this for a moment. You come home tired from work or a day out. You open your door….smile and relax because you see a welcoming clean and tidy home. You walk into your spotless kitchen and make some tea. Your favorite dinner is in the fridge all ready to be cooked. Paperwork, bills, laundry are under control... everything is where it should be. You feel contented and confident. Every item has its home so putting away is easy. There is nothing for you to do but sit down, relax and enjoy your time. Your home is a creative inspiring place to be. Your weekend is free for fun. What a joy. There you have it... I don't know about you but I wish I had all that information when I was overwhelmed by my stuff and in the middle of my clutter crisis. Simple Solutions for Your Everyday Clutter Problems And there is even more Bonuses . The best part- the price, and to be honest with you if I added up the countless hours of hard work I've poured into this e-book, and all the evenings and weekends I sacrificed, I would have to charge you hundreds of dollars of labor. I could easily sell this package for $97, it would be great value. But I want to keep it reasonable for you. Considering you would have to pay at least a thousand dollars to hire a professional organizer for a few days… (not to mention all the mega costly decluttering mistakes you'll now avoid)…I want to keep it reasonable… around the equivalent price of a container or two at your neighborhood storage store. I don't know about you… but before I decluttered I would spend way more than $47 dollars every few weeks on useless stuff I didn't need like,… groceries we never ate, take away meals, toys the kids didn't need and containers to hold nothing but junk. Here's another little surprise. Since this is the launch of my book –I'd like to give you an extra bonus. But you've got to jump on it quick because I will be bumping up the price to $47.97 soon. So here's the thing, I'm not sure how long I can keep it at this special price but since you are here now you can grab the whole lot for 27.97. But you really have to jump on it quick because like I said I will be bumping the price up to the original $47 soon. How am I doing that? Simple. Here's my Zero Risk Guarantee. Check it out Still not convinced Get Organized Get Happy The Simple Guide to Declutter and Organize your Head Home and Heart is the best deal on the market? Don't Decide Now! Buy it, try for a few days and if you still don't think Get-Organized Get-Happy is worth every penny I'll buy it back, Procrastinating can be a costly mistake. So to avoid disappointment act now and order a book before the price goes up. Lets recap what you are going to get What You Get Value Get-Organized Get-Happy $47 BonusGet Organized Get Happy Blueprint Planners $30 BonusHow to make Cash from your Cutter $30 BonusThe One Stop Shop Home and Family Organizer $30 Total $137 So there you have it –you have two choices 1. Keep doing what you're doing and pray that things will get better OR 2. Take a stand and get rid of your clutter You have nothing to lose, right Here's to living a little lighter Jane Alais P.S. If you are serious about dumping your clutter baggage and taking action for a fresher more organized home …and you want an easy road map and… the right handholding from start to finish… your search is over…You are just a click away from having it all (and more) at your fingertips for only $27.97 P.P.S. Don't forget…the next time you come to this site the price might be back up to the original $47.97, (which is dirt cheap anyway) And remember you get $120 worth of bonuses as well P.P.P.S. Let me remind you that you're totally covered by my $100% "No Questions Asked" guarantee! So there's no risk on your part at all. So what are you waiting for? Enjoy!
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Birthroot Midwives | Birthroot Midwives and Birth Center Bellingham Welcome! We're so glad you found us. Birthroot Midwives is a team of three midwives whose mission is to provide exceptional midwifery care for those delivering at home or at our birth center. We are very proud of our team approach to giving you the best care during pregnancy and birth. Our clients love the benefits of having three midwives as their care team; they enjoy the diversity of our backgrounds, styles and our over 40 years of combined experience. We collaborate with each other and with our clients in shared decision making, a hallmark of midwifery care. Located in the heart of Bellingham at 1600 Broadway, our birth center features two large birthing suites designed to optimize the natural birth experience. Each suite is fully equipped with a deep, free- standing birth pool, a full bathroom including a walk-in shower, comfortable furnishings, and room to move. If you are interested in finding out more about our midwifery care or taking a tour of the birth center please contact us at any time. We offer complimentary consultations and would be happy to provide you with more information and answer any questions you may have. We are contracted with most insurance plans and Medicaid. What our clients are saying
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How I Generated 250 Hot New Leads Using Google | Coaches Internet Secrets by Karl Bryan, Internet Marketing, Internet Marketing for Coaches Karl Bryan reveals how he generated 250 hot new coaching leads in 90 days using Google. The Former Coach Turned Mega- Successful Internet Marketer Shows You How To Solve All Your Coaching Businesses Lead Generation, Prospecting, Marketing, And Sales Problems By Finally Learning the Real Secrets to Building and Profiting From Lead Generation Online and Tapping into the Power of Google Using a Powerful, Yet Easy and Proven Step-By-Step System... For Coaches
Right From the Hip | Observations & Opinions | Politics, Law & Current Events In which our Vagabond Seeks a City in Motion. It is early Saturday evening, the doors are open, the coffee house beckons. I enter into a crowd – young and old, in pairs, groups and singles, are standing in line, checking their phones, reviewing the menu board, sitting astride chairs, leaning on counters, stirring their mugs, contemplating their next move, and conversing with animation and verve. After securing a mug of herbal orange blossom tea and plain pound cake (something different and contemplative), no booths are available. I occupy a seat at a long, central bench and table with the other patrons. Immediately next to me sits a young couple, face to face, wearing various shades of blue denim (she also sports a floppy, soft-brim robin egg blue hat), who have stopped talking to enjoy one of the house's calorie-generous desserts. Their desserts are laden with strawberries, fresh, fragrant, jumbo-sized, strawberries, tumbling generously, abundantly, off the dessert cakes which shyly peek out underneath. These are six-dollar desserts, suitable for serious courtship. The whipped cream had disappeared already. Their strawberries are not shy - they flaunt their bright deep red strawberry color, their inviting texture, they flirt their white edges. These strawberries profligately cast about their unmistakable ripe fragrance. Indeed, the fragrance demands attention. For an unmeasured moment, these strawberries own the bench and my perceptions – my other senses have quietly stepped down and wait for the strawberry fragrance to master the stage, to take its bows, to aromatically speak for strawberries everywhere. Each strawberry is joined with all strawberries - connected in a web of genetic code, agricultural pedigree, sense perception and idea. The smell, the fragrance and appearance of these strawberries, and for a distinct slice of time, the connected picture, the taste, the idea of many strawberries, all strawberries, as an adjective as well as a noun, occupy my thoughts. If there had been no name for strawberries ever given, I would have conjured a name for them, then and there. Strawberries are versatile. We can give Latin names to their various genus, Fragaria. We may note that each apparent achene, or seed, on the outside is actually one of the ovaries of the flower, with a seed inside it, perhaps explaining why the couple beside me ordered them for dessert. Philosophers might debate whether or not there exists a non-physical essence of strawberry, an ideal Platonic form of strawberry, or be skeptical that we could ever be sure that what we perceive as strawberry was reliable. Mischievous children have picked them to throw at each other. We can observe them on wild vines, clip, transplant and cultivate them in our gardens, study what combination of sun and water gives them the greatest growth and sweetest flavor, pick them gingerly to set at our breakfast table, eat them singly or in groups in little morning fruit bowls. We have financed agri-businesses to grow them in vast number, might someday sell strawberry futures on a commodities exchange, have hired agricultural workers to pick them in mass quantity. Graduate students in economics might measure the economic impact of establishing a minimum wage for strawberry pickers, while employers make certain their immigration papers are in order. We can contest the right of strawberry pickers to go on strike, and use courtrooms to enjoin secondary strikes by other fruit pickers. Independent truck drivers can transport them in refrigerated, insured freight carriers at free-on-board rates. District managers of supermarket chains can offer them for retail sale in little green baskets at trendy supergrocers which have memorable advertising logos and trained-to-be-friendly checkout people, and serve them in coffee houses at upscale prices. In laboratories we can measure their molecular carbon chains, forensically identify them with gas and mass chromatography, and fit them into biochemical schema of study. We can mash them into lipstick or cream for purposes of skin and beauty enhancement, advertised by slender, photogenic models. We can handwash our dirty dishes in our neglected kitchen sinks, or shampoo our thinning hair with liquid soaps flavored with them. No small series of achievements, for an aggregate accessory fruit. But we have strawberries as descriptors also, as concepts and additions to the language in which we think and speak and describe, in which we write poetry and love sonnets. They act as triggers or stimulants, to remind us of things, things we may want to remember. I bend my head over my tea and soak a piece of my cake into my orange-blossom tea. But these strawberries are not yet done their work. The fragrances of my coffee-house neighbors' strawberries trigger vivid memories. A series of pictures is summoned up, interior miniatures composing a sequenced event in my life, a road trip of an altogether different sort. Gently unfaded, affectionately insistent, parading in silence one at a time yet making a whole, a set of gliding images from the past paints over my vision. ____________________ My wife, Erma, and I were dating, and engaged. I was just 32. At the time, she was just 23 years of age, not quite 5'2" unless she stood on her tiptoes (she was generous in describing her height on various health and application forms), slender, lithe, with quick, athletic reflexes, light brown hair never allowed to grow long, a bright upturned face full of energy, green-grey eyes that were never quite the same shade from day to day, and a stand-your-ground manner suitable for the youngest child who had five older brothers. Erma had been a Christian since her experiences as a teenager in church youth group, and had been well taught by a beloved senior pastor, Reverend Pusey. She could field a ground ball or steal third base, tell every player on the Philadelphia Flyers in 1977 (she still had a Bobby Clark doll) or quote scripture by memory, intelligently and to the point under discussion. She was a secretary at DuPont, a job she had held since the day after she graduated from high school. There was emotional trauma in her childhood, including a miserable relationship with her father (the misery shared by her brothers and sister), and a tragic gun accident which took the life of one of her brothers, after her father irresponsibly brought home a rifle and gave it to his children without supervision or safety instruction. The collapse of the family unit brought economic difficulties. Erma bubbled over with hope and energy – she was ready to wrestle wildcats, hid her fears, counted her pennies, and laughed loudly and easily. Erma pooled shock, grief, loss and anger in reservoirs of her soul. She introduced herself to a pair of young men attending a Christian singles conference in Sandy Cove, Maryland, one of whom was me, because she recognized the church my friend Dave had announced at the beginning of the conference, and that was enough of a conversational opening for her. We took a trip to North Carolina, to visit her brother Noel, the only one of her family to graduate from college. Noel was a marketing manager for a large agricultural chemicals company, and he was moved about the country every few years. For several years he had lived near Research Triangle Park outside Raleigh. Our trip was a happy one; we packed up Erma's silver Honda Civic, years old but running like a Swiss watch, and toodled down the highway one Monday in the early summer. Life was opening up. My disorderly life, spread across two coasts, was moving in a good direction. Erma, deeply emotionally cautious, was hoping that the world held good things as well. After staying the first night with friends in Virginia, we arrived after a day of easy driving at Noel's, still single. As always, he was a gracious host, owner of a sensible but well-maintained home. His practice of buying and selling homes as he was transferred around the company proved to be economically rewarding. I don't know whether he liked his job in its own right, but years later when he was offered a retirement package at the age of 50, he took it, and to my knowledge, has never worked 9-5 job since. Noel was working 9-5 when we arrived though, so during the day we were left to our own devices around Raleigh, Chapel Hill, Durham and the surrounding areas. Open to guidebook suggestions, we went to the North Carolina Botanical Gardens in Chapel HiIl. We walked the displays of native plants, violet-purple iris, milkweed, wood anemone, maidenhair ferns, wild indigo, water-plaintains, bluestars. The Gardens have a display of carnivorous plants, pitcher plants, Venus fly traps, along with their orchids and lilies. I found a very tiny spider among the carnivorous plant displays, picked him up with a leaf, and deposited him into a Venus fly-trap, which promptly, as advertised, closed its tender petals. The wispy trigger hairs of the plant quite quickly formed a bars-of-a-jail cell effect as the plant's leaves closed reflexively – I could see the tiny spider, looking out, as forlorn and puzzled as any prisoner would be. At the time, I had nothing to say to him, and regretted somewhat causing his fate. With the advantages of hindsight and advancing years, today, I might encourage him with words of sympathy – "you and me both, brother," a final salute, issued nunc pro tunc. Erma and I went to see a movie in the evening. Mr. Hulot's Holiday. Monsier Hulot, the French actor Jacques Tati, "decides to vacation at a beautiful seaside, resort. Rest and relaxation don't last long, given the gangly gent's penchant for ridiculous antics." Released in 1954, you have to be in the right mood to see this slapstick farce. Erma and I were nearly alone in the theater, it was a Tuesday evening. We were in the mood – I laughed hard. Erma laughed uproariously, full volume. I never heard anyone laugh so hard – her cackles filled the theater – no nook or cranny escaped the piercing volume of her laughter. Many times. How can you not fall in love with a girl like that? If anyone else was in the theater at all (maybe one other couple), they certainly knew they weren't alone. The next day, we visited Duke University in Durham. The lawns and grounds were green, immaculate, carefully maintained; the buildings, the Chapel, all were elite-college campus beautiful. I daresay visiting parents longed to expend vast sums of money to send their children there. After walking around for several hours, near the end of the day, we found a small restaurant/coffee-shop. Because of the day and hour we were again nearly alone. The shop featured a strawberry desert, loaded with whipped cream. They were the freshest, sweetest, most flagrantly-and-fragrantly-delicious strawberries imaginable. It was a lifetime trophy desert. The taste, the aroma of the strawberries filled our noses, our palates, our tongues – our sweet, ripe taste buds went off like bells. Erma was just swooning with joy. It seemed as if we just sat and ate for hours (which could not possibly be true), as if the strawberry dessert stopped local time to go on forever. These strawberries had royal, domestic, South American and continental antecedents. According to Wikipedia, the garden strawberry was first grown or bred in Brittany, France in the 1750s by crossing Fragaria Virginia from eastern North America with Fragaria Chiloenses, brought from Chile. The French began harvesting wild strawberries in the 14th century. Strawberries were added to cream in the Court of King Henry VIII. What can I add to that? World production of strawberries is in excess of nine million tons, and not a strawberry too many. After we had spent a few days at Noel's, we drove east to go to the Outer Banks of North Carolina. The Outer Banks are a resort area, but wilder, less cultivated than the homogenized resort areas one sometimes visits. We rented two separate hotel rooms to stay in the area around Kitty Hawk. I had sexual relationships prior to becoming a Christian. Erma had many dating relationships, but had learned her sexual ethics as a teenager at a conservative, evangelical church and drew a line she believed in. We did not sleep together on that trip. It helped to make our dating relationship simple, clean, pure, uncomplicated. (Our physical relationship began on our honeymoon - when Erma exited the bathroom and entered our bedroom the evening of our 11 a.m. wedding in Bear, Delaware. We had driven to a bed and breakfast in Milford, New Jersey, Linda and Rob Castagna's Chestnut Hill on the Delaware River. Looking at the teddy-bear decorated bed and room in the honeymoon suite and at me, Erma asked, "do you think we should pray?" I answered, "I already have.") But that wedding ceremony day was still in our distance, like a beckoning city on a hill. The next day on our excursion to North Carolina, we traipsed about on the Kitty Hawk beach. It was not yet warm enough for swimming; the beaches were nearly empty. I discovered that small fish, mullets or small kingfish, filled some of the deeper surf pools and beach ponds left by retreating waves. There is a picture of me taken by Erma, bending over at the waist, looking down, with my pants rolled up as I stood in the middle of one of these surf pools, wearing a plaid shirt with the sleeves rolled up, trying to catch little silver fish with my bared, cupped hands. Trying to catch small fish by hand was a predictably unsuccessful effort, but loads of fun to try. I looked perfectly ridiculous, and we were perfectly happy. On our trip back in the silver Honda Civic from North Carolina, driving north to Wilmington and Phoenixville, we sang hymns on the road. Neither Erma or I have any musical talent at all - neither of us can carry a melody. But there was no music critic in the car, no one to be distressed. We sang "Fairest Lord Jesus," in toneless acapella - it fit our mood and excursion well. _______________________ I was interrupted in my coffee-house reveries by a young man, of Asian background, whose face I recognized, but whose name I didn't know. He had been listening to me a previous week, when I was proclaiming out loud verses from the Book of Revelation, the lake of fire verses, the judgment verses, on a previous morning when the coffee house was much emptier than it was that Saturday evening. His interruption lead into quite an extended discussion, carried out over three locations in the coffee house. "Hello," he said. I responded with my own 'hello.' "I saw you here the other week. You were reading out loud. I was standing over there" – he indicated where he had been standing when I had my brief confrontation with the coffee house manager, Jen, over reading Bible verses out loud. I nodded 'yes' and offered my hand and introduced myself. "My name is Qi," he introduced himself with a small but perceptible bob of the head. His English was good, with a slight British accent. Qi looked to be in his early twenties, fifty years younger than I. His hair was black parted on one side, his chin and cheeks clean-shaven, his eyes brown, his lashes somewhat long, his build slim, probably 5' 10" in height and weighing 140 or 150 pounds, wearing blue jeans and a neat maroon pullover jersey. His facial expression was respectful, intelligent and friendly. "I wanted to ask you. Why were you reading out loud? And why did you choose those verses?" I had to think to recreate my thoughts and mood the previous week. "I can't answer that easily. God moves inside me without giving me explanations. Why those verses? I felt like I wanted to get somewhere - we ought to get somewhere. I saw those verses on the path." "I heard what you said to the manager. The owner doesn't mind?" His expression suggested that people reading out loud in a coffee house crossed a line in the culture he came from. "No," I told him, "the owner doesn't mind." We paused our conversation for a moment, so Qi could find a way around the bench and people to squeeze in opposite me. He was sitting right next to the strawberry-eating couple, also seated across each other on the bench, as I was. "Do you work, or are you a student?" I asked. Qi explained his background to me, responding to my questions. He was 23 years old, a graduate student seeking a Master's degree in statistics from the graduate department of a nearby university. He was an exchange student, a resident of China, whose family came from near Beijing. Much of his life was not spent in China however. His father was an investment banker, and they spent a number of years in different countries and cities, including London, where he learned as a teenager to speak English well, and learned his slight but discernible British accent. He was one of three children, and had two sisters, one older, who was married and living near Shanghai, and one considerably younger sister, who was living at home near Beijing, where his parents had returned. I asked him about China's one-child policy and he explained that his father had sufficient resources to obtain relief from the rule. Since the first child in the family was a daughter, apparently this exception was not difficult to obtain with respect to Qi. Having official sanction for having a third child was more difficult, but by then his father had political and economic connections. By this time the strawberry dessert-eating couple had left. Their seats were taken by others so it wasn't always easy to conduct our conversation. The coffee house was noisy, there was music in the background and people were sliding behind us at times to reach seats further down the long benches on which Qi and I were seated. When I paused my deposition-like questions, I asked if he attended any local church. He did, he explained, and had been for about a year. "What did you think when I read those verses out loud?" I asked. "How did you react?" "I like hearing the Book of Revelation read aloud. It doesn't often get read out loud. When you hear a sermon, somebody tells you what to think about it. There's always a doctrine or a system. Everything has to be explained." He thought for a few moments. "There's more in the words, than there is in the explanations." He said, and I quietly nodded in agreement. "Well, if you just listen to the words, read by somebody else, you wouldn't have a system," I offered. "You might have a language, though. A set of mutual symbols. Even if we didn't agree on what they meant." He listened to what I said and we talked about language, and symbols. His criticisms of symbolic language were well-thought out; a person whose native tongue is Chinese understands well the strengths and weaknesses of symbols to communicate. I suggested that symbols and graphic pictures cut through many language systems. The phrase "a woman clothed with the sun," eludes precise rational understanding, but it's an accessible image everywhere. We had the mutual and considerable pleasure of two people speaking thoughtfully to each other. "You don't agree with any systems about it?" I asked, meaning the Book of Revelation. "I don't know. My church teaches a system." "Which one is that? Dispensationalism? Premillennialism?" "Yes." "The Rapture, any minute. The Jews left to face the anti-Christ." "Yes. Yes." "You're not defending it very hard," I suggested. His facial expression indicated that I had discerned his feelings accurately. "Is that what you believe?" Qi asked me. "No. I'm a Postmillennialist. I believe in the Great Commission. Christ gave us an order. Go into the far reaches of the world. Convert the nations. So we will succeed. It's the prayer he taught us. 'Thy Kingdom come. Thy will be done.'" "How does reading about the burning lake of fire out loud, help that?" Qi queried. "I'm not sure. Does the Spirit have to explain everything to me? I respond as I'm called. But I think everybody wants good news. Ask them, and they'll tell you the world is a mess. But then they want good news - warm and reassuring. God's judgment in a burning lake of fire is a very unpopular topic. But it wakes people up. It made you ask me questions." "Do you think bad news is more likely to win converts?" Qi was looking at me with a certain amount of respectful skepticism. "I think telling people the truth helps people see the truth." "But you, too. You didn't recite the burning lake of fire verses with a big smile on your face." "Perhaps so. Me too," I admitted. "Maybe there's enough bad news already," Qi suggested. "Sufficient unto the day is the evil thereof. That's true too. You're right. But why are all those burning lake of fire verses there? Fierce warnings, aren't they?" I asked rhetorically. "Maybe it's the bad news that already exists. Maybe the world loves judging. Maybe the world needs judging. There's a lot of judging inside of us already." As he said this, I thought I detected some personal history in Qi – perhaps his father was a judgmental person. "I think it's a warning - a guide and a look to the future. But I'll be careful about trying to interpret it, with you around. I'll let the words be the words. Burning lake of fire and all." I raised my hands slightly to indicate surrender – the acknowledgment of my limitations. "Don't some people believe the whole book was just meant for the 1st century Christians? They think it all relates to the destruction of the Temple in Jerusalem by the Roman armies. That's it – nothing else." Qi's knowledge suggested some study; his tone suggested questions, perhaps questions deeper than interpreting the Book of Revelation. "Are you a preterist?" I asked him. I wasn't sure whether his question was a narrow, specialized question over eschatology, or rather a deeper question that any young person might have, about whether the whole structure of religion is connected to anything real at all. "I'm not sure what that means," he admitted. "About what you said. Preterists believe most of the Book of Revelation has already been fulfilled. It was a warning for the 1st century, for the early church. A tract for the times. Now it's done – it has no future significance," I explained. "If that's what you're asking." "No, I haven't thought about it much, but don't think I think that. How about you?" Qi asked. There were questions in this young man, but I didn't know quite what they were. "I think it's prophecy. The Word of God to us. It's no more fulfilled and done than the Sermon on the Mount is fulfilled and done. Does that answer your question?" I returned. "I guess we'll never know, this side of Final Judgment," he offered. "Maybe we just wait for the Rapture?" "It makes a difference now. It changes how we act, because of what we expect. If all you're doing is sitting around here, waiting for the Rapture, that's one kind of answer. But I'll buy you a cup of coffee, and we can wait together." As I was about to get up to buy coffee, a young woman, talking to her friend following behind her, was trying to make her way behind the bench to a seat. She was holding a sandwich on a plate and a glass. Someone moved on the crowded bench, not knowing anyone was behind him, and bumped directly into her. Her sandwich spilled and tumbled across the back of an unshaven but pleasant-looking blonde young man and onto the floor. There, visible for the world, near Qi's feet, were the ingredients for her sandwich, two slices of multi-grain bread, two chunks of avocado, two generous slices of tomato, and a large stack of bean sprouts, scattered across the floor along with a slice of dill pickle. She moved back apologetically, waving the now-empty sandwich plate in her hand, obviously embarrassed. The young man stood up, rather mildly and saw who had spilled sandwich fixings on him. He didn't seem angry - he was apologetic and rather embarrassed himself. No one quite knew what to do. For a few moments the two of them milled about each other in rather disorganized fashion. The coffee house manager was nearby. She saw what had happened and signaled for a staff person to assist. Qi and I both stood up to move out of the way and sidestepped our way to leave the benches and table. As we were moving, I made brief eye contact with the manager and we mutually and quickly nodded. I didn't want her to think I had been a problem again, but she saw I was an innocent bystander, not an repeat instigator of disturbances. While the clean-up was being accomplished, Qi, seeing our mutual nod, asked if I knew the coffee house manager. "Yes, her name is Jen Geddes. She's a Christian. She's nice – a calm person." We watched the cleanup. I thought I would share a bit more, thinking still about what Qi's questions might be. "Years ago, she was in the newspaper, picture and all. She had a bit of a temper. I think she came from a very fundamental background. She was in a church, and for whatever reason, something was going with a visiting pastor she definitely didn't agree with. She expressed her theological disagreement by shouting out loud, picking up a stool, and heaving it at this visiting pastor. She actually hit him with it and there were disturbances in the church. The police had to be called. As a sentence I think she got what is called ARD, a non-trial diversion. It usually means she had to do some community service and get some counseling. I was practicing as a lawyer at the time, so I paid attention. Some years later, she got the job here. I recognized her when she started. Very calm - very welcoming to everybody these days. I never talked with her about it. I always wanted to ask her what it was about. Part of it was reported in the newspaper – apparently, whatever it was the visiting pastor was saying, her response was along the lines of "are you really going to say that, in my ear?" The cleanup was over, but Qi and I found a different place to sit and resumed our conversation. He wanted to know more about the type of law I had practiced, which was a general community practice. We started talking about the law and about the U.S. Constitution and some well-known constitutional principles, which were not, as Qi described, the rule or norm in China. He described a culture and circumstance in China which might be characterized as intense and ubiquitous favoritism. "We have those problems here - in a big way," I acknowledged. "You have laws about it, though. In China, there is no law to appeal to, to correct such things. The party is the law, and the party officials who operate without needing any approval." "We do have laws," I acknowledged. I narrated for Qi a United States Supreme Court case, which is a staple of the Constitutional Law curriculum in law school. "In San Francisco, around 1880, most of the laundry workers were Chinese. Laundries used heat in wooden buildings. There was a statute that said you couldn't operate a laundry without a permit. The statute itself wasn't crazy - there was a genuine fire risk with boiling water used in the laundries – not a joke in San Francisco. But Yick Wo had been operating his laundry for years, when he was told he couldn't operate his laundry anymore without a permit. Unfortunately, if you were Chinese, you didn't get a permit. If you weren't Chinese, then you got one. Yick Wo was fined for operating without the permit, and he couldn't or wouldn't pay the fine, so he was put in jail. The Supreme Court ruled that the administration of that permit law was unconstitutional – even if the laundry owners weren't citizens. Even if the law itself made sense considered in isolation. The Chinese laundry owners still had a right under equal protection, under the equal protection laws of the 14th Amendment." "You would not find such laws in China," Qi lamented. "Well, it took us years to take the legal principle serious," I told him. "Taking your principles seriously takes time." Our conversation continued. We talked about Chinese coolies and how they worked. We talked about Christianity in China. We talked about the beginning of the movie Crazy Rich Asians where they're having a Bible study. We talked about missionaries and Hudson Taylor and the Chinese Inland Mission, and when Qi's family had become Christians. We talked about wars in Asia – in the Pacific against Japan. Qi had a very distinct opinion about the treatment of the Chinese by the Japanese in WWII, which flowed over to his opinion over disputed islands in the South China sea. We talked about the wars in Korea and Vietnam. We talked about Mao, and Communism and the treatment of Christians in China during the cultural revolution. Qi's family had suffered and practiced their faith in secret, but had emerged. We talked about the Three-Self Church in China. "Sanzi Jiaohui" Qi explained, trying to help me to pronounce it correctly. "But my family has spent so much time overseas, it was not critical to us. We didn't argue about religion, we argued about how many hours my father worked." He looked not as happy making this last statement. I decided to change gears altogether. "You'll be married someday. You'll have a wife and probably children. Do you have a girlfriend?" I asked. "Yes. But she is in graduate school in Michigan now. So I only get to see her on vacations. Sometimes we meet in Chicago. We are making some plans, but they have to wait. We text. She likes it, but she thinks it's cold there." We talked about the weather in China, and in the U.S. We moved our location one more time, when a booth opened up. Time passed, but the Rapture still lay in the future. In the meandering talk and silence of our time together, we made friends. The Holy Spirit, as known to coffee houses as He is to great cathedrals, entered somewhere. Eventually Qi said it was time for him to get back home, and we parted company with the idea that he would be back in the coffee house, and we would have a chance to talk again. Perhaps further, on the Book of Revelation, he suggested. ___________________ And in the Spirit he carried me away to a great, high mountain, and showed me the holy city Jerusalem coming down out of heaven from God. Revelation 21:10. Those trained in theology and ministry should present the bulk of the inspired message of Rom. Ch. 12-15. But there is an element of those passages I want to address. I have a law degree, was valedictorian at law school, have practiced law for many years, and have held elected office. I serve as a volunteer on various boards with legal and executive authority over substantial matters. The business of law and government is something with which I am familiar. Although words like "law and government" don't sound San Francisco hippy-ish, don't seem to blend into a coffee-house or a road trip to the last chapters of Revelation, that is my direction now. Rom. 13:1-10 is my topic. Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. Rom13:1a. The passage is central. It does not stand for, nor should it be understood, to be a command to political authoritarianism. It is an invitation to law, to legitimacy, to ascertaining the will of the people in a democracy, enacting that will within the confines of a constitutional system, and then respecting the laws that flow therefrom. Within the world at large, we may be subject to, or may become the governing authorities – but we are always Christians. The Apostle Paul had multiple purposes in so writing – he had a concern with the relationship of Christians to the outside world and to the political authority of the Roman empire. Paul was also concerned about how Christians relate among ourselves. Christian religious/political conflict among ourselves has been a challenge for Christian theology. Theological disagreement may be the reason or the excuse for the ecclesiastical, political or social separation of Christians. Once reasons develop, theological disagreement, leading to differing communions and groupings, becomes the vehicle for separation. As the Reformation commenced and continued through the 16th and 17th centuries, it appeared the immovable object had met the irresistible force. When Christian conscience met Christian government in vehement disagreement, the results were tragically unacceptable in individual cases. Theologically, the issues have never been resolved. One person wishes to pray to the saints, another does not, one expects an early Rapture with no warning, another does not, one thinks the Holy Spirit proceeds from the Father and the Son, another does not. There are innumerable such differences. The continuing disagreements demonstrate that we have no recognized method of either resolving the dispute, or even a recognized method of staying in communication with each other. The argument continues unresolved. The fallback position for various Christian disputants is spiritual distance and intentional distancing, and attrition over time. Politically, we have addressed the most negative consequences of those 16th and 17th century conflicts by privatizing religious conscience. The results of privatizing Christian conscience are only partially satisfactory, as the 21st century is demonstrating. Organizing a better society is problematic, if each Christian has no greater loyalty than to his or her conscience. Conscience slides into self-will. Beyond denominational or theological boundaries, no one is able to present, to debate, to respond, to adjudicate, to give, or to obey an order issued by a recognized body of Christians, on any issue – not just very large important issues. All issues are 'off the table,' as it were, beyond joint resolution. No one could today post 95 theses on the door of a church and have an audience. We are stalled on Christian conscience-autonomy. No one says 'my conscience is God' but that is the net result. Each spider sits on her own web. The Old Testament analogue is the Book of Judges. The civil and political theory and authority that God has established pertinent to us, and to all, has been two thousand years in the making. The development of this theory is an argument for and an example of common grace, extended by God to all, who makes his sun to shine on the good and on the evil, and sends his rain on the just and on the unjust. "All peaceful beginnings of government have been laid in the consent of the people," John Locke, the British philosopher wrote in his Second Treatise on Government, Sect. 112. His work was instrumental in the framing of American constitutional ideas. Within the United States, we are both the governed, and the governing authorities. Perhaps odd, perhaps obvious to say, but if we as Christians want to reach the heavenly city of God, we have to be capable of governing and being governed by each other. This does not suggest extinguishing the ordinary and necessary debate and contentions that accompany civil and religious life. But at some point, a methodology of decision-making has to be established. Decisions are to be made, and they have to be respected. These 'decisions' are Christian decisions, critical to the communications and communal life of all Christians. That is not intended as a challenge to fundamental theological positions. When our government formed, Maryland did not become Pennsylvania – each state assigned certain powers to a federal government, and retained the rest. Lawful is not lawless, even where there is hard questioning and debate over what is really or ought to be 'lawful.' There are many different ways to connect with each other in the exercise of our Christian faith. Our movement toward the Jerusalem from above is obstructed, if we are situated like a collection of hermit crabs, each communion barricaded in its own shell of theological position, ecclesiastical organization and personal conscience. The authorities that exist have been established by God. Rom. 13:1 b. God created and enables all things, in providing the motive power for all events, outside of whose permissive will nothing ever can happen or could happen. Such establishment includes "the authorities that exist." As Jesus said to Pilate, "You would have no power over me if it were not given you from above." God is the source of lawful authority. The present state of world and national affairs, including our legal and political structures, is not accidental. It may be temporary, or cause us to pray "How long, O Lord, will the wicked by jubilant?" But if we cannot obey our own lawful authority, exercising decisions derived from faith, there is no possibility of building a genuinely lawful structure. If we cannot debate our Christian statements, decrees, findings or laws, enable and enact our Christian decrees, respect or obey our Christian laws, because they come from the authority already announced and ordained by our God and Savior, we're not going to move. We are stranded in the valley of stasis. I am postmillennial, a believer in the Kingdom of God that comes into this world. The extension of Rom. 13:1 b is necessary. This verse sends us forward, makes us look to the future. The current set of authorities have been established by God. The next set of authorities will be established by God - and the next set, after that. We want this set of authorities, each set of authorities, to be better, more Christ-like. When we say more 'Christ-like,' it is not reasonable to expect that denominational and theological differences are going to evaporate. We want to be Christ-like as we assume, or obey, or exchange, this developing authority which expresses itself in constitutional forms among us - not because it results in theocracy or theonomy (or any other system of being ruled by the laws of the Old Testament). Rather, we remember that the "authorities that exist" may be us, or may not be; and if we're not holding office at the moment, we may retain our theological positions or political differences. Do unto others as you would have them do unto you, has special significance when we are talking about different groups of Christians contending over beliefs, ideas, or courses of conduct which may be supported and advanced by force of decree, statement or law. If we are going to move toward a more complete Christian community, theological convictions count, inspiration counts, but also, impartiality counts. We want the debate (and the penalties for losing the debate on whatever topic is at hand) to be just and impartial. The rules, the conduct, the doctrine, whatsoever it is under discussion, and the statement or law that issues from them, or us, are to be impartial. The means and procedure of discussing, debating, challenging or appealing the decision regarding the resolution of Christian issues, have to be impartial. Due Process is a legal term but it paves a spiritual road. It means notice of the issue at hand, before the time and place of decision, and the opportunity to be heard on the point by the decision-makers. We hope valued impartiality flows into our political and national lives. But whether it does or does not flow nationally, we have to communicate these exchanges and accord this due process among ourselves in an impartial manner – and then voluntarily respect the outcome. The amorality of the present state of our national political life is not ultimately acceptable, but neither it is acceptable to go back to the political situation, rife with religious persecutions, that characterized Great Britain (and here in New England) in the 17th century. We do not criminalize people with whom we disagree. We will not move toward a golden, millennial age until we capture solutions to both sets of problems – spiritual unity which enables voluntary association and cooperation, and spiritual dissent. Our risen Lord Jesus has set us a mid-term examination. God has graciously provided us guidance. As explained by Locke in his Second Treatise, sect. 131: And so whoever has the legislative or supreme power of any commonwealth, is bound to govern by established standing laws, promulgated and known to the people, and not by extemporary decrees; by indifferent [impartial] and upright judges, who are to decide controversies by those law; and to employ the force of the community at home, only in the execution of such laws; or abroad to prevent or redress foreign injuries, and secure the community from inroads and invasion. And all this to be directed to no other end but the peace, safety, and public good of the people. The peace that Jesus confers - "Peace I leave with you, my peace I give unto you" (John 14:27), connects to this Lockean peace, safety and the public good. The kingdom of God ("Thy kingdom come," Jesus taught us to pray, Mat. 6:10, "on earth as it is in heaven.") and "the leaves of the tree are for the healing of the nations," Rev. 22:2, converge on this peace. They are intended for this-world Christian implementation, and this implementation and obedience to God's will is not beyond us. John Locke described the "peace, safety and public good of the people" in terms that were attainable. He presented his solution at the time of intense religious persecution that frequently was the excuse, rather than the reason, for political persecution. The experience of the Amish community in self-regulation provides some useful guidance. The Nashville Statement, signed initially by more than 150 evangelical leaders, affirming what is set forth or implied in Scripture about sexuality, particularly Romans ch. 1, is a productive step toward our self-regulation and our movement toward a Holy City. The Nashville Statement engendered disagreement and resentment. Nor do I endorse all views, on all issues, of those Christians who developed the Nashville Statement. The point is to cooperate as actively and as far as we can, but no further. Theological statements and decisions are presented to address conflicting positions. The resentment within large elements of our national society, of the Christian position on the sexual issues addressed in the Nashville Statement, is intense – but that is acceptable. Disregard of God's Word engenders its own consequences. We want to be frog-marched off the Titanic of modern secular culture and nominal Christianity - thrown unceremoniously into a little lifeboat named Jesus and the Bible. We expect to be marginalized with the world's imprecations following, as the Titanic leaves us behind. We may bob in the ocean of broad societal disapproval for a short season. It's not hard to see the iceberg coming. After the iceberg has done its work, we, the Christian community, build a better world. We may communicate our own internal understandings and direction without surrendering those theological positions which are essentially non-negotiable. John Locke calls out the following elements in the above-recited passage: legislative power, established law, impartial judges, a judicious use of 'force' to execute such laws, directed to peace, safety and public good – and we would add, for the community of our faith. The challenge is to connect that political peace, of which we are clearly capable, with Jesus' spiritual peace. The alternative, the Valley of Christian Stasis, is incapable of being characterized as good faith. That is not how the Book of Revelation ends. To disconnect the two kinds of peace, to say that the peace that Jesus provides is always and forever not of this world, is to take a position on eschatology. That is to take the position that the Kingdom of God is not coming (despite praying "thy Kingdom come") in this world except by the visible return of Christ but in no other way. It is to take the position that the Great Commission does not fully succeed (apparently, then, a command to partial failure?). It is to take the position that the ending of Romans ch. 16 ("so that all nations might believe and obey him") doesn't count. If the Kingdom of God is coming in this world, then those good ends that John Locke asserted - peace, safety, the public good - have to be realized in the context of a multitude of Christian expressions (the 'Seven Churches' of Revelation), giving rise to our City in Motion. The political events of the last two thousand years include what has politically taken place in this country in the last 250 years. We may begin with the Deist-influenced proclamation of the Declaration of Independence (which, despite its Deist influences, repeatedly and insistently invokes God, the Creator, the Supreme Judge, and Divine Providence), which is also directly of God. The Declaration of Independence, like all other expressions of common grace, is directed by and under the authority of our risen Lord, Jesus. Pilate's authority derived from Roman military and civil power gets the benefit of God's imprimatur, as spoken by Jesus. Then surely also so does the Declaration of Independence, the U.S. Constitution, and the Federalist Papers. We have political tools. We need to use them. We don't want to supplant the state, we want to create a miniature of a Constitutional and legislative system, for ourselves, entered into by three gates: by Christian faith, by subscription to the doctrine of Scriptural inerrancy, and by a commitment to a forward-looking eschatology. Beyond that, once through those gates 'of the outer courtyard,' we acknowledge a diversity of views, a gathering of seven churches, a lively exchange of ideas. We will make and find our city and move toward peace, joy, and the enjoyment of the presence of God, characterized by our love for God, and our love for each other. There, we will be in a position to lead useful and interesting lives and have enjoyable and interesting discourse. We do not resurrect the past, look to the past, long for the days of ancient Israel, look for theocratical forms of government, or long for the days when our particular theology will be adopted by everyone. Christianity is just beginning. "By calling this covenant new, he has made the first one obsolete. And what is obsolete and aging will soon disappear." Heb. 8:13. The orchestra is just tuning up - we're barely getting started. I have no use at all for nostalgia. To quote a modern theologian, Greg Bahnsen: Postmillennialists believe, therefore, that the kingdom of God will gradually grow on earth, visibly, publicly, and externally. . . It will grow through the gradual conversion of the nations – through the preaching of the Word of God. . . . This salvation of many people must have visible expression and influence and be seen in an outward culture in society. (Victory in Jesus, Bahnsen, CMP 1999, p. 27). (See also, Postmillennialism, an Eschatology of Hope, Keith A. Mattison, P&R Publishing, 1999; The Victory of Christ's Kingdom, John Jefferson Davis, Canon Press, 1996; Prophecy and the Church, Oswald Allis, Presbyterian and Reformed Publishing, 1978 (critique of dispensationalism); He Shall Have Dominion, Kenneth Gentry, Apologetics Group Media, 2009 (thorough defense of postmillennialism); and An Eschatology of Victory, J. Marcellus Kik, Presbyterian and Reformed Publishing, 1971) ("the Holy City is situated in time and history . . . " p. 245). (Noting also with all these authors, that their theology is learned, their eschatology is inspiring, their legal and political theory needs better direction.) Consequently, he who rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves." Rom:13:2. Paul instructed Christians in the Roman Empire, where we began as a tiny minority. Stay out of trouble, direct your energy away from rebellion, stay away from political revolt or disobedience. Move in our spiritual life and the witness to the growing faith. Paul was concerned about building the church locally and across geographical distances and cultural groups. It was the Holy Spirit saying, "it's okay to obey the Roman authorities – in fact, you should, this is part of your obedience to me, unless (as is clear from the Book of Revelation), you are being asked to deny Christ or otherwise blaspheme." Christ warned his disciples to stay clear of the military and political disaster coming because of the Jewish rebellion brewing against Roman authority in his pointed discourse at the Mount of Olives. In whatever direction we decide to move, it must meet the fundamental standards enunciated by Paul. For rulers hold no terror for those who do right, but for those who do wrong. Do you want to be free from fear of the one in authority? Then do what is right and he will commend you. For he is God's servant to do you good. But if you do wrong, be afraid, for he does not bear the sword for nothing. He is God's servant, an agent of wrath to bring punishment on the wrongdoer. Therefore, it is necessary to submit to the authorities, not only because of possible punishment, but also because of conscience. That is also why you pay taxes, for the authorities are God's servants, who give their full time to governing. Give to everyone what you owe him; if you owe taxes, pay taxes, if revenue, then revenue; if respect, then respect; if honor, then honor. Rom. 13:3-7. Christian, don't do the crime, if you can't do the time. The bearing of the sword is intended for punishment. The state has a monopoly on the use of force, for a good reason. Generally, Christian conscience acts in conjunction with the state (but not always, see, e.g., Martin Luther King's Letter from a Birmingham Jail). In his Letter to the Romans, Paul meant a number of different things by 'the Law,' understood by context: the Ten Commandments, the Law of Moses implying a special revelation of God's will to the Jews, natural law available to and applicable to all people, spiritual law to be followed by Christians out of obedience to the gospel, the law of love, Roman civil or criminal law to be obeyed at the risk of punishment, the law of conscience, including accusations or defenses of conscience, the law of interior struggle with sin, sin and death itself, and the new life of the Spirit - all are referenced in Paul's letter, all characterized in his writing as or associated with the Law. The Law shows us our sins by holding up a mirror to our conduct in the light of God's Law, sending us to call on Christ's atoning mercy. The Law protects the weak from wrongdoing at the hands of those stronger and is essential to a civil society. The Law in all its forms and expressions is surely the great chain, wielded by an angel, which binds Satan in Rev. 20:1 and 2. As the Holy City comes down out of heaven as described in the 21st Chapter of Revelation, it is not described as the City of Law. By implication, the City may be protected by Law. Law may reinforce its walls and its gate. Spiritual law may flow from and through the Church to separate those who may enter the City of God from those who may not. But the Holy City's light, foundations, jewels, gates, streets, river, fountains, or its Tree of Life are not described in terms of Law. In the Sacred City of divine and human joy, where Christ reigns by acclamation, by love and by power, the purposes of the Law have been fulfilled. Lawlessness has no place in the City as it can never enter in. The Abyss may be escaped, only to give rise to further battle and fire, but the Holy City is prepared as a bride. The description of the Millennial City calls us to something higher, further and more perfect than Law as a goal and end of human society. The Law has a purpose and an end, and it reaches fulfillment in Christ's work on the Cross. In a more perfect society, where equity is done everywhere, there is no need to petition a court of equity for relief. Where love and trust are more perfect among people, no judge is needed to assert jurisdiction, hear argument or rule for one party or the other. In a meeting with our beloved, we who love fold our papers, close our law books and put our contracts aside. Their purpose has been served. Love keeps no record of wrong, so we may leave the courtroom. We go to meet for a wedding ceremony and a feast. The beauty of the meeting calls us to travel the road. Questions arise about doing right, what obedience means, in a Constitutional democracy where we are asked to play a part. The part we play nationally, whatever it is, to which we are also called and from which we refuse to be disenfranchised, is not the same as the spiritual movement we pursue among ourselves. We are called to something higher than the surrounding political confrontation and factionalism (not an easy problem to solve; see Federalist No. 10 – Madison thought the danger of factionalism would be solved by the new Constitution, and clearly that has not been the case). John Locke thought the solution was self-evident. "[F]or nobody has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. . . Thus the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make . . . must be conformable to the law of nature, i.e., to the will of God . . ." 2nd Treatise, sect. 135. To say something must be conformable to the will of God, or the law of nature or an eternal rule, has proved to be guidance not so obvious, beyond the first application, of not destroying life. Many Christians are united on this point at least. Given the number of abortions being performed annually in the United States and western world generally, even Locke's standard of 'not taking away life' appears to have given way to a notion of personal rights that is practically unlimited in its scope or application. In the case of abortion on demand, the notion is tragic on a massive scale, leads to infanticide (and the purposeful abortion of Downs' syndrome babies), is contrary to God's will, is destructive of our national political fabric, and presents an irresistible temptation to federal courts to exceed their Constitutional jurisdiction and intended scope of authority. Next to the Dred Scott decision, Roe v. Wade is the worst decision ever made by the U.S. Supreme Court, and its consequences have been destructive. The decision raises political problems regardless of religious faith – there is no serious legal question of any type that cannot be formulated into a query about individual rights and then answered in such a way as to make individual rights (defined to assure the preferred outcome) preempt and supersede any other type of right. In the case of abortion, all that is necessary is to deny the definition of human life to children in the womb. The definitions decide the outcome. When we now use the term 'civil rights' the meaning is – rights of the individual. In current judicial reasoning, advancing individual rights is always expansive of the good, as long as the individuals are out of the womb. In current judicial reasoning, the rights of the group are nearly always oppressive, subtracting from the net benefit of civil society. My civil rights cannot be added to the civil rights of my fellow citizens, in such a way as to develop a society promoting religiously-based ethical views. One hundred thousand people may not be lead in prayer at a government-sponsored or funded event, if one objects. If it is necessary to justify protecting children in the womb from destruction by making a religious argument, because the definition of the beginning of life implies theological and ethical reasoning, then the destructive consequences of advancing individual rights above other rights are wrongly justified as compelled by the implied language of the Constitution. An intellectual shell game has been played by our federal judiciary, of which Roe v. Wade is the most notorious example – get the definitions right, set up the conflict as the individual vs. the group (included in 'the group' is any assembly of state legislators) – and the desired judicial result will pop out like candy from a dispenser. From this Christian's viewpoint, and I am also a citizen of this nation, this is unacceptable. As an individual, my name is not "Congress," as in the 1st Amendment ("Congress shall make no law"). The idea that ethical decisions, which result in law, may not have religious foundations, is to be rejected. The idea that I may not join with others to vote for or to pass laws which at some point in their chain of reasoning, rely on religious belief or revelation, is to be rejected. A method of judicial reasoning which relies on carefully-crafted initial definitions and nomenclature to avoid the obvious, observable acts of medically terminating life, with the resulting infant body parts available for marketing, is to be rejected. Political acts which have ethical foundations, which themselves have religious foundations, are ordinary acts of Constitutional self-rule, not the establishment of a theocracy. We will do better, because God will compel a better result. The City of God is a promise to seven churches, standing for a society of communities engaged in the voluntary worship of God and obedience to Christ. Discovering the will of God, in our own relations with other Christians, raises harder questions than challenging bad national law or opposing abortion on demand. Discovering God's will mean moving forward to our own better self-governing society, even if we construct a model first on a 'table-top,' as it were. I quote a passage from Locke which will have a familiar sound to any reader familiar with the Declaration of Independence: Great mistakes in the ruling part, many wrong and inconvenient laws, and all the slips of human frailty, will be born by the people without mutiny or murmur. But if a long train of abuses, prevarications, and artifices, all tending the same way, make the design visible to the people, and they cannot but feel what they lie under, and see whither they are going; it is not to be wondered, that they should then rouse themselves, and endeavor to put the rule into such hands which may secure to them the ends for which government was at first erected . . . 2nd Treatise, sect. 225. Locke observed that the people may "rouse themselves." Indeed, 'rousing ourselves' is essential. But in what way did the Apostle Paul view 'rousing ourselves?' The difficulty with Paul's passage in Romans ch. 13:3-7, is its static nature. Those admonitions made sense then, for a small religious minority in a vast pagan empire. The Roman authorities were there, and the Roman Christians submitted to them, and were grateful to God for the opportunity to worship him in peace. There was no political development implied; it was intentional separation from Roman interference, by giving no cause for offence, for purposes of Christian religious practice. A difficulty with the passage of Locke cited above is that it takes the matter one, but only one, drastic step forward. If the authorities are inflicting a "long train of abuses . . . all tending the same way" then the people ought to put "the rule into such hands as may secure to them the ends for which government was at first erected." Locke's concepts are binary, but they also will become static – either the people accept the "great mistakes and wrong laws without mutiny or murmer" – or, as the American people did in 177 6, they "rouse themselves" to "put the rule into such hands, etc.," in other words, to put governmental rule into American hands in the legislatures of the American states. Continuing, aspirational movement was not contemplated by John Locke either. The wasn't the problem he was facing 320 years ago, but it is a problem we are facing now. There is much the Book of Revelation does not do. There is one thing it does do, beyond its powerful encouragement in the face of persecution – it says, 'look, there's a goal here, a destination, and we want to get to it.' The Book has an end, and the end is a City. The Great Commission is equally dynamic – Jesus telling us "Go, make disciples." There's a goal here, a command, something we are supposed to be doing – and disciples, discipling and discipline has to extend to more than personal conscience, to the exclusion of Christian community. The argument against amillennialism is parallel to the argument against premillennialism (whether in its dispensational presentation or classical presentation) – those doctrines don't go anywhere. When it comes to Revelation ch. 21 and 22, these doctrines 'sit on their hands.' Rather, our doctrine of eschatology is postmillennial (Christ comes after ("post") the millennium) by our voluntary choice, by Revelation's destination, by inspiration of the Holy Spirit to reach a millennium in this world. Jesus is awaited at the end of the golden, millennial period, however long and wonderful that period may be, a thousand years or a ten times a thousand years – and we have acted in obedience to him in making or moving to such a society and such a world. (For the Kingdom of God will be like a man going on a journey, who called his servants and entrusted to them his property - one to receive five talents, one to receive two, another, to receive one). Our goal is forward. Neither John Lock or the Apostle Paul, or Jesus, say: "let's go back to an Old Testament theocracy as soon as we have a chance." Hence, my profound disagreement with all forms of political theocracy, theonomy, etc. We move to the future here, in terms of our political understanding – our Lord Jesus has not been asleep for the last 2000 years. For that matter, if you need open-heart CABG surgery as I did, you will not seek out a doctor who applies the methods of healthcare available in the days of Moses – there are no instructions in the Old Testament for a triple-bypass procedure. Common grace has done something with respect to medical care, as it has done something with respect to political theory which the churches may apply. After the passage quoted above about obeying the authorities, the Apostle Paul moved directly, with no further transition, to a society characterized by love that has already internalized the Law. The movement is sudden between Rom. 13:7, extolling obedience to external Roman authority, sharing neither political power or a faith with us, to Rom. 13:8. Here is our endpoint: Let no debt remain outstanding, except the continuing debt to love one another, for he who loves his fellow man has fulfilled the law. The commandments, "Do not commit adultery," Do not murder," "Do not steal," "Do not covet," and whatever other commandment there may be, are summed up in this one rule: "Love your neighbor as yourself." Love does no harm to its neighbor. Therefore love is the fulfillment of the law. If we wish to go On the Road now (and we find ourselves On the Road whether we wish it or not) – static conceptions will not do. We construct with the law in the manner of a homebuilder, using our tools to lay on progressively wiser and more effective structural elements, until we reach the fulfillment of home-building, a home where we may love. That is the postmillennial vision – a millennial world, a golden age of faith, love and peace, before Christ returns. The thousand years of the millennium in Ch. 20 is both a reality and a symbol for that vision. The reality of God's ordaining will is a driving movement. Growth through the Holy Spirit is neither limited to or circumscribed by the symbol of a thousand year time period. We travel to an end and a society good beyond words. Our driving force and our destination comes from God. Golden ages are hard to come by, but not only can we get there, we will. Christ has called us to this, and his sobriety and his power in doing so is beyond question. ____________________________________
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Bucharest With Kids | The online resource for families in Bucharest All parents want the best for their children and the very first steps in your child's life are the most important ones. Choosing the perfect school for your child can be difficult. To help you, there are some aspects you might want to take into consideration. Firstly, what ages does the school cover? Would you like your child to be in a school dedicated to early years only or part of a larger community that they could grow up in? Secondly, let's think about the learning facilities in the early years and the possibility of having extra-curricular activities. What are the indoor and outdoor facilities like? Are children able to play indoors and outdoors and what toys or provisions are there for them? Are there options for choosing some fun extra-curricular activities? Moreover, for some parents, the languages spoken in the classroom are important. Do you want your child to be in a single language environment, or offered a dual language learning environment? What support is there for children who are learning a new language? We all know how important it is for children to play. Through playing, a child can learn to develop all their skills, they can feel and act independently, make friends, socialize, be part of a group and learn to express their emotions, thoughts and feelings. How does the school regard the importance of learning social skills or learning through play? Is there an emphasis on teaching and learning certain skills and knowledge? Excellence in education is another important aspect you might take into consideration. What about great teachers, who can take care of each child independently, in a secure, safe and happy environment? To find out more information about these you can ask what an inspection report says about the school, look at the teacher qualifications or you could ask to meet the teachers. In the early years, it is not easy for a child to get used to a new environment and new people, that's why children need to be understood and to feel comfortable and secure. Is there any chance to ease this transition in some ways? For example, can teachers make a home visit before term starts? Or is there any possibility for parents to collect their child earlier, in the first week of school? The relationship between teachers and children is important. What does the school do to develop and support this relationship and create a positive learning experience for children? To try to find all the answers you need you will probably start by reading a school's website and looking for recommendations from other parents. The opportunity to visit a school and see for yourself how they care for early years children though is often the best way of making decisions about which school is best for you. Open mornings, or arranging a visit directly with the school will allow you to see all of these things and ask your own questions. We hope the ideas in this article help you to choose the best start in life for your child. Take it step by step, think about your child's needs, about what's best for him to grow and develop completely, and for sure you'll take the right decision! This article was written by British School of Bucharest. Come to the Early Years Open Morning, at British School of Bucharest (BSB) Join British School of Bucharest's Early Years Open Morning, on Tuesday 13th November, to feel the safe and caring environment BSB creates, to see how the Early Years children can develop confidence, self-esteem and creativity through play and meet the unique team of teachers and staff, which truly supports their emotional and personal development. For three hours, between 09:00 and 12:00, come to BSB's campus, on 42 Erou Iancu Nicolae Street, Voluntari, Ilfov County, and be part of this unique event, created especially for all the parents and their little ones, where you can also visit the campus, see all the facilities and participate in fun activities. Find out more about BSB and this event, and book your place, on British School of Bucharest website: We also welcome visitors any time. Please request a visit on our website: . An Admissions Representative will contact you to establish a day to visit our school. British School of Bucharest is an established, well-resourced top private school, located in Bucharest, providing a comprehensive international education, based on the National Curriculum for England. The British School of Bucharest serves more than 500 students aged between 2-18. It is a richly diverse learning community, with students representing approximately 50 nationalities.
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courtweek.com - Archives: 2011November 1, 2011The Law of Post-Halloween Legal StandardsToday is All Saints Day or All Hallows, a holy day of obligation for some. To others, it''s just the day after Halloween -- a day they forget was once merely All Hallows Eve. Some spend All Hallows recovering from the revelry of the night before, and some are still on the streets in the wee hours of the holy day. Our Case of the Week examines once such alleged citizen on the streets and the unfortunate lesson she learned about differing standards of legal review in a California appellate decision handed down last week.Let''s Make a DealAngelique Bongiovanni found herself in the legal system in 2009, charged with possession of methamphetamine in two separate cases. In a deal that would come back to haunt her on the day after Halloween, she made a plea bargain in one of the cases. Under the plea agreement, Ms. Bongiovanni pleaded no contest, and was placed on probation for three years. As an added bonus, her 365-day jail sentence was suspended to run concurrently with the sentence from her other drug bust.It seemed like a good deal at the time, and it would have been...if only she hadn''t allegedly been out with the witches, warlocks, goblins, and alleged gang members on the streets of Los Angeles on All Hallows 2009.All Hallows HijinksOn Nov. 1, 2009, Wendy Diaz lived with her husband and three children in a Los Angeles neighborhood with a gang problem. Perhaps not unlike Chauncey and Wadsworth fighting over tee times, the proper procedure for shaking martinis, or the best way to train a polo pony, Ms. Diaz''s neighborhood faced fights from the gentlemen and ladies of the rival gangs, "Vincent Town," and "Columbus Street." Police arrested a Columbus Street gang member for breaking into the Diaz home.After taking her children trick-or-treating on Halloween evening, Ms. Diaz ventured outside at approximately 1:00 in the morning of All Hallows to look for a friend parking on the street. Instead, Ms. Diaz said she saw Ms. Bongiovanni accompanied by a companion in a pumpkin costume.According to Ms. Diaz, Ms. Bongiovanni proceeded to engage in an expletive-laden tirade of threats. To accommodate the gentle readers of Courtweek.com who would rather witness a debate between Chauncey and Wadworth on the best ways to make covert contributions to the Republican National Committee instead of enduring the vile threats of alleged gang members, we will attempt to sanitize the vulgarity of Ms. Bongiovanni''s alleged utterances.Ms. Diaz said Ms. Bongiovanni approached her and called her an [expletive deleted] snitcher, adding, "You been [expletive deleted] snitching.""You and your family are coming down," Ms. Bongiovanni stated allegedly, as she is said to have added for emphasis, "You [expletive deleted] rata," and "[expletive deleted] all biccicletas."To assist our readers in appreciating the full flavor of Ms. Bongiovanni''s supposed soliloquy, we should note that each deleted expletive is a version of the same slang word referring to an act of sexual intimacy. In addition, "rata" can refer to a Soviet fighter plane from the 1930s, plants from the Metrosideros genus in New Zealand, or rat in Spanish. We''ll let you decide which one Ms. Bongiovanni might have meant. Also, biccicletas is a derivation of the Spanish word for bicycles. Seems innocuous enough. However, in Ms. Bongiovanni''s case, People v. Bongiovanni, California''s Second District Court of Appeal noted biccicletas was also a term Columbus Street gang members used as a sign of disrespect (or "dissing" in gangspeak) when addressing the upstanding citizens of the Vincent Town gang.Ms. Diaz reported the incident to police the same day and gave law enforcement a description of the woman who threatened her. She then identified Ms. Bongiovanni from a photo line up. Police knew Ms. Bongiovanni to be a member of the Columbus Street gang for almost a decade and that she went by the gang name, "Diabla." It wasn''t difficult police work...Ms. Bongiovanni sported Columbus Street gang tattoos on her body. If that weren''t enough, police said she also admitted she was a member.Winning 10-2?However, nifty tattoos notwithstanding, Ms. Bongiovanni denied she was a member of the gang at trial. In addition, Ms. Bongiovanni noted she was approximately 50 pounds heavier than Ms. Diaz had described her. Then again, it was Halloween, and with her friend in that pumpkin costume, she probably got a lot of candy. Despite Ms. Diaz''s testimony and police testimony citing various Columbus Street gang activities including murder, assaults, car theft, and narcotics distribution, the jury deadlocked, and it''s vote was 10-2 in favor of acquitting Ms. Bongiovanni. The court declared a mistrial and thus granted prosecutors'' motion to dismiss the charges pursuant to California Penal Code section 1385.So, it was time for Ms. Bongiovanni to do the happy dance. Sure, she was on probation, but the charges were dropped. No probation violation there...or so she thought.At an ensuing probation violation hearing, Ms. Bongiovanni argued she had not violated her probation in the All Hallows morning incident. She claimed the whole thing was a case of mistaken identity, and she argued the jury''s 10-2 vote in her favor showed she hadn''t done anything wrong.Most members of the jury may have believed her, but the judge wasn''t buying it. More importantly, for purposes of sending Ms. Bongiovanni to the slammer for a probation violation, the opinions of those 10 jurors didn''t matter.You see, California probation violation determinations differ from a criminal trial in that the fact-finder in a probation violation hearing is the judge -- not a jury. In addition, where in a criminal trial, the legal standard is proof beyond a reasonable doubt, in a probation violation hearing, the standard is only a preponderance of the evidence. In other words, there can be a fair amount of doubt as to whether you did it, but if the judge weighs the evidence, and there''s more evidence indicating guilt rather than innocence, you lose.In Ms. Bongiovanni''s case, the judge noted the cops testified at trial that she was a member of the Columbus Street gang, a Columbus Street member was arrested in connection with the break-in at the Diaz home, and that Ms. Diaz identified Ms. Bongiovanni as the woman who threatened her. In the minds of 10 of 12 jurors, that wasn''t enough to prove anything beyond a reasonable doubt. However, under the preponderance of the evidence standard, that''s all the judge needed.In upholding the trial court''s decision that Ms Bongiovanni violated her probation, California''s Second District Court of Appeal wrote, "Appellant''s argument that a jury vote of of 10-2 for acquittal supports her credibility is not persuasive because the fact finder in the probation violation hearing was the trial judge, not the jury. Because probation revocation differs substantially from criminal prosecution and the facts supporting the revocation need only be proved by a preponderance of the evidence, we find substantial evidence to support the trial court''s finding that the appellant violated her probation."So, Ms. Bongiovanni had her probation revoked, and it was three years of incarceration for her. The moral of this week''s Case of the Week: if you''re on probation and walking around with a giant pumpkin on All Hallows, study legal standards of review before you go calling someone an [expletive deleted] Soviet fighter plane. __________________________October 22, 2011The Law of Flying DwarfsThose readers who enjoyed -- or perhaps didn''t enjoy -- this writer''s On Trial column in The National Law Journal may remember the saga of Dave the Dwarf. He fought to save the Constitution...while saving his livelihood in dwarf tossing. To commemorate the 10th anniversary of Dave the Dwarf''s epic legal battle--and because a Florida state representative is now trying to do in the legislature what Dave could not do in the courts--we now revisit the Law of Dwarf Tossing...and what it tells us about the 5th and 14th Amendments to the United States Constitution...as well as legislative and regulatory drafting in the state of Florida.Big Fun in a Little PackageDavid Flood is a gentleman of somewhat small stature: three foot two, to be exact. He''s also a Tampa, Fla., radio personality and quasi-celebrity. Known as Dave the Dwarf to his legions of little listeners and big fans on Tampa''s 93.3 FLZ radio, Mr. Flood also has had a side business, and that''s what made him a legal star. You see, for a fee, you could bring Dave the Dwarf to your birthday party, St. Patrick''s Day festival, bar mitzvah, or Millard Fillmore Inauguration Day celebration, and Dave would let you engage in the time-honored tradition of dwarf tossing.That''s right, you could put little Dave in a harness and toss him to your heart''s content. Dwarf tossing was a cultural phenomenon in the 1980s. It was the biggest thing since Members Only jackets. It seemed a good time was being had by all, as tiny torpedoes of humanity went airborne at parties.That was, until the Little People of America and their friends in the Florida Legislature intercepted the toss.Little LobbyistsNot everyone was amused by this zany brand of miniature fun. Among the concerned populace was a public interest organization known as Little People of America, Inc. The non-profit organization provides support and information to people of short stature, and states it is the only dwarfism support organization providing services to those afflicted with all of the over 200 types of dwarfism.Little People and others lobbied the Florida Legislature, and the result was the passage of Section 561.665, Florida Statutes, governing activities involving exploitation of people with Dwarfism in establishments selling alcohol.Not all little people supported the law, and one of them was Dave the Dwarf.Dave the Dwarf sued then-Florida Governor Job Bush in an attempt to overturn the law, arguing the law was an unconstitutional violation of his rights under the Due Process Clause of the 5th Amendment and the Equal Protection Clause of the 14th Amendment.Specifically, Dave the Dwarf argued in Flood v. Bush, No. 8:01cv02261 (M.D. Fla. filed Nov. 28, 2001), that his due process rights were violated because the law failed to properly define those covered by the law, making the law unconstitutionally vague. He argued also that the law violated his equal protection rights because the law treated him differently than others. For instance, you could be tossed, I could be tossed, and Oprah Winfrey could be tossed (with a great degree of difficulty), but Dave the Dwarf could not be tossed...or so he thought.Banned or Not?The governor''s lawyers swung into action in an attempt to toss Dave the Dwarf right out of court. They argued dwarfs needed protection. Dave counted that was hogwash. Also, in addition to maintaining Gov. Bush should be dismissed from the suit, the Florida Attorney General''s Office argued that there was no constitutional violation because the law didnt really ban dwarf tossing.Turns out they were right.The law itself banned only "undertaking or permitting any contest or promotion or other form of recreational activity involving exploitation endangering the health, safety, and welfare of any person with dwarfism" in establishments selling alcoholic beverages. Nowhere did the law ban dwarf tossing specifically.Dave the Dwarf argued dwarf tossing was good for his welfare because he made money doing it. Note the language is "health, safety, and welfare," as opposed to "health, safety, or welfare." Dave the Dwarf might have been better off leaving the law alone, continuing his aerial acrobatics, and arguing he was in compliance with the law because dwarf tossing promoted his welfare.As it was, the trial court tossed Dave out of the courthouse, holding the law did not ban dwarf tossing and that -- although the law mandated that the Division of Alcoholic Beverages and Tobacco of Floridas Department of Professional Regulation promulgate regulations on the issue -- they had failed to do it. While the regulators may have been out at the beach listening to Jimmy Buffet tunes and drinking margaritas, Dave the Dwarf could have been spending his days flying through the warm Florida breezes.So why is Florida State Rep. Ritch Workman trying to repeal the law while everyone from Jon Stewart to your short Uncle Freddy is weighing in on the issue?Well, it appears those regulators finally finished getting wasted away in Margaritaville, cruised on back home to Tallahassee, and did some regulating.The Oprah RuleThe Division promulgated Section 3.048 of Chapter 61A of its regulations, entitled, "Exploitation of Dwarfs." Unlike their friends in the Legislature, the regulators did more precise drafting and included dwarf tossing specifically. The regulation provided in subsection (2): "Any activity described as dwarf-tossing is specifically included within those acts of exploitation prohibited by this rule."Of course, there was also subsection (3), which could be called the Oprah Rule. It provided: "Nothing contained herein shall be construed to prohibit dwarfs from engaging in non-exploitative sporting or recreational events of the type engaged in by persons who are not dwarfs."So now we''ve come full circle: Oprah Winfrey can be tossed (if one has a large catapult), but Dave the Dwarf is, once again, left out of all the fun...unless Rep. Workman has his way. His bill, HB 4063, is pending in the Florida Legislature. In the meantime, you can catch Dave the Dwarf on his radio show, What Would The Dwarf Do?, where presumably, he is not being tossed...at least not yet.__________________________August 25, 2011The Law of Wiener WarsOnce the gentleman from New York''s Ninth Congressional District resigned his House seat for exposing his wiener, you may have thought you would be finished with bad wiener jokes for a while. You would be wrong.This week, mighty corporate litigants have been battling it out in the U.S. District Court for Northern District of Illinois in a wacky wiener war. The case of Sara Lee Corp. v. Kraft Foods Inc., features charges of hot dog blasphemy. Sara Lee, the makers of Ball Park Franks, and Kraft, the friendly folks bringing you the venerable Oscar Mayer wiener, both claim the other has disparaged its products in violation of federal and state law.Seriously though, we all read Upton Sinclair''s The Jungle in school. Thus, everyone thinks hot dogs are comprised of animal parts swept up off the factory floor anyway. How can one disparage a hot dog?Oh, I Wish I Were...Sara Lee fired the first shot in the Weiner War, suing Kraft in May 2009, claiming Kraft violated both the federal Trademark Act of 1946, 15 U.S.C. 1051 et seq., known commonly as the "Lanham Act," the Illinois Consumer Fraud and Deceptive Practices Act, and other Illinois state laws.In its federal complaint, Sara Lee alleged Kraft claimed falsely that Oscar Mayer wieners were the "100% pure beef hot dog" when it knew Oscar Meyer wieners contained other mouth-watering ingredients, such as sodium lactate, sodium diacetate, sodium phosphates, salt, corn syrup, and dextrose. Sara Lee claimed non-beef ingredients comprised approximately 20 percent of an Oscar Meyer wiener. Of course, Sara Lee conceded that most of this non-beef 20 percent was water.Sara Lee claimed Ball Park Franks were disadvantaged becausebeing the honest dudes they are Sara Lee would not compete with Oscars little lies by claiming falsely that Ball Park Franks were 100 percent pure beef.But, Oscar Meyers alleged crimes against humanity and hot dog harmony didn''t end there.In advertising paraphrasing Oscar Mayers famous jingles for its hot dogs and bologna, Kraft claimed, The best tasting beef hot dog has a name. Its O-S-C-A-R, and These days, its Ball Park and Hebrew National who are wishing they were an Oscar Mayer wiener. In addition, Kraft invited customers to Try the taste that knocked the others out of the park.Just as it claimed the 100 percent beef claim was false, Sara Lee claimed these comparisons against its hot dog were false as well.Sara Lees attorney, Richard Leighton of Washington, D.C.''s Keller and Heckman LLP, claimed the evil Oscar Mayer even cheated on taste tests, claiming testers were served boiled Ball Park franks on a paper plate with no bun, no ketchup, no mustard, nothing.It must have been a big taste test error because the bouquet of the sodium lactate and dextrose really pairs well with mustard.Not only were these claims placed in print and electronic media, Sara Lee claimed Kraft even put them on its Wienermobile, a vehicle described by Sara Lee as a hot dog-shaped vehicle that promotes Oscar Mayer and its products in interstate commerce.Have you ever seen the Wienermobile? This writer has. It looks like a rolling phallic sex toy designed to appeal to the prurient interest in violation of the U.S. Supreme Courts holding in Miller v. California.Sara Lee argued that, by making these allegedly false claims in interstate commerce, Kraft violated section 43(a)(1)(B) of the Lanham Act. Section 43(a)(1)(B) prohibits false or misleading advertising or marketing that damages another''s product. In addition, Sara Lee argued these false claims violated the applicable Illinois state laws.Not surprisingly, Oscar Mayer saw things differently.My [Fill in the Blank] Has a First NameMighty Oscar fought back, counterclaiming against Ball Park''s protective corporate mother, Sara Lee. Kraft argued the 100 percent beef was accurate because, although Oscar Mayer contained additives, beef was the only meat in Oscar Mayer. In addition, Kraft believed it needed to illustrate Oscar''s beefiness because of the public perception that hot dogs contain mystery meats.Damn you, Upton Sinclair!In addition, Kraft argued Sara Lee had its own hot dog advertising shenanigans.In a corporate legal battle example of Pee-wee Hermann''s famous retort, "I know you are, but what am I?," Kraft argued Sara Lee made its own false claims about how much beef there was in Oscar''s tubesteak. In addition, Kraft argued Sara Lee mislead consumers with taste tests by professional chefs proclaiming that Ball Park was America''s best franks.All jokes aside, the Wiener War in Sara Lee Corp. v. Kraft Foods Inc., may change the way companies market their products and establish limits for what merchants can say about their products and their competitors in advertising.Meanwhile, the court battle continues with weighty questions, such as "Do a bunch of San Francisco chefs know anything about Chicago hot dogs?" and, if you thought hot dog litigation was bad, just wait until companies start suing each other over other meats lots of people hate.When commenting on the litigation, Sara Lee''s Ball Park product director, Chuck Hemmingway said, "Simply put, we believe that these untrue statements are a bunch of bologna."First, they attack Oscar''s hot dogs, and now Oscar''s bologna? Mr. Hemmingway may want to watch out for the speeding Wienermobile. Oscar is not happy.____________________________August 12, 2011The Law of A&E''s Reality TV TroublesReality television tends to get lots of people into lots of trouble. From going to the slammer for failing to pay taxes on reality winnings to shooting sweet, innocent puppies with arrows, reality TV contestants have often been models of bad behavior. But what happens when it''s the reality show''s network getting in trouble? Our Case of the Week examines what happens when a reality show insinuates falsely that a woman tried to smuggle drugs into a jail via her vaginal cavity.Family DayMarlorita Battle was minding her own business visiting her husband, an inmate at the Riverbend Maximum Security Institution in Nashville, Tenn. Little did she know she was about to become a big, big star.On the day she chose to visit the prison, the A&E Television Network reality show, The Squad: Prison Police, was there, too. The Riverbend facility apparently had a drug problem, and there were allegations the contraband made its way into the prison compliments of visiting family members.It was time for some riveting reality TV drama.The episode of The Squad: Police Prison entitled, Conspiracy, began with Tennessee Corrections Special Agent John Fisher describing the Riverbend prison''s drug problem. He noted that an informant had indicated a woman was smuggling drugs into the prison on a regular basis."We''re expecting this lady today," Agent Fisher said, as A&E splashed Mr. Battle''s face on the screen.As Ms. Battle began what might have been a pleasant visit with her husband and small child, the A&E cameras moved in, and agent Fisher said, "We''ve identified the female subject and inmate," as a mugshot of Ms. Battles husband is shown to television viewers.Keystone Kops and the Nitty GrittyMs. Battle''s husband had the toddler on his lap, and the couple sat next to each other. Ms. Battle''s husband caressed her, and then Ms. Battle visited the restroom, causing Agent Fisher to use his supposedly excellent cop skills to determine a crime was in progress. Not unlike the Keystone Kops, Agent Fisher and his bumbling band of merrymen swung into action."Hold on now, she''s going to the bathroom," Agent Fisher says, adding, "Typically, these women hide stuff up their vaginal cavity [sic] and then go to the restroom to take it out. Now we are starting to get to the nitty gritty."The camera then shows the doors to the bathroom, triggering more amazingly astute analysis from Agent Fisherthis time its about the size of Ms. Battles bladder and her efficiency in the latrine."There she is, right there. See how fast she went in there. She didn''t have time to pee," Agent Fisher says.Apparently, Agent Fisher, unaware of a bygone era when gentlemen and ladies would not utter the verb, "pee," on national television, has a special mathematical formula for computing travel times for urine through the urethra and into the toilet, hand washing, mirror check, and egress from a restroom.Ms. Battle, allegedly carrying something in her hand, proceeded to kiss her husband, A&E provided a crashing cymbal sound to enhance the reality TV drama, and Agent Fisher exclaimed, "Some [expletive deleted] just happened. I think we got ''em. I think we got them."It was time for the brave men of law enforcement to swing into action with A&E there to capture all the zany fun.First, they conducted a strip-search, and then, they placed Ms. Battle''s husband in a so-called "dry cell." Its called a dry cell because there''s no running water, and thus, no way to get rid of contraband.They kept Ms. Battle''s husband in the dry cell for 24 hours. He neither urinated nor defecated any contraband.After releasing Ms. Battle''s husband from the dry cell, Agent Fisher called the incident a "false alarm," but he added more commentary during the closing credits of The Squad: Prison Police that would become significant in subsequent litigation. This is Courtweek, after allyou know someone''s gonna get sued."If you are dirty, if you are smuggling in contraband, drugs, cellphones, tobacco, then we''re going to catch you. We might not get you today, maybe next week, next month, next year, but eventually, we''re going to catch up with you, and we''re gonna get you. That''s what we do," Agent Fisher said.Reality TV in CourtMs. Battle sued A&E Television Networks, Inc., and Wild Eyes Productions, Inc., the producers of The Squad: Prison Police, in federal district court in Tennessee, alleging defamation and intentional infliction of emotional distress.A&E and Wild Eyes moved to dismiss the suit, arguing on the defamation claim that The Squad: Prison Police was not capable of defamatory meaning, noting that the program doesn''t claim Ms. Battle committed a crime, but instead "accurately reports the results of an investigation."The court didn''t buy it.Noting the camera angles, the ominous music, and the made-for-TV commentary of Agent Fisher, U.S. District Judge Kevin Sharp wrote:"Even though the Program indicates that a search of Plaintiff revealed no drugs, a jury could conclude from the overall way that the Program is presented that Plaintiff was a drug smuggler who just happened not to get caught on September 12, 2009. Such an impression is enforced by Agent Fisher''s parting comments to the effect that while we might not get you today, we will get you sooner or later if you are smuggling drugs into a Tennessee prison."In rejecting the attempt by A&E and Wild Eye''s to dismiss Battle v. A&E Television Networks, Inc., the court cited also the U.S. Supreme Court case of Milkovich v. Lorain Journal Co., and held that statements of opinion were not automatically protected from libel and slander claims on First Amendment grounds."After all, ''expressions of ''opinion'' may often imply an assertion of objective fact," the court said.The lesson we take from this week''s Case of the Week is that, before airing a show, A&E might want to make sure the subject is guilty of genital smuggling--or at least not put a cop on the air insinuating the innocent party just got lucky on that one occasion. After all, they could just put a bunch of people on a desert island, have a some obnoxious people become roommates, or have really untalented people sing.________________David Horrigan is an attorney, journalist, analyst at The 451 Group, editorial director at Courtweek.com, and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in The Washington Examiner, Law Technology News, The American Lawyer, The New York Law Journal, The San Francisco Examiner, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: email@example.comAugust 5, 2011The Law of Pig FumesHave you ever had a neighbor who cooked food they may have found tasty and delicious, but that emanated aromas reminiscent of aged Roquefort cheese and dirty baby diapers left in a garbage can in the hot sun? It would be most annoying, but would it be unlawful? Would the pungent aromas be trespassing onto your property?Believe it or not, the issue has been litigated, and, in this week''s Case of the Week, we learn whether various airborne items--chemical particulate matter, sewage plant smells, and pig farm fumes--are trespassing when they waft onto your property. People may disagree, and that''s okay. As we''ll discover, the courts disagree as well.Organic AirOluf and Debra Johnson had decided to get back to nature. They converted their Minnesota conventional family farm into an organic farm, hoping to achieve an organic food certification that would allow them to charge more for their farm fresh products.Soon the Johnsons were ready to enjoy their new organic Eden. As they began their new all-natural existence, they stopped using pesticides, and Mr. Johnson posted signs around the property, letting everyone know that the Johnsons'' new tree-hugging Utopia was a chemical-free zone.There was just one problem. The neighbors hadn''t joined the eco-friendly bandwagon.The Johnsons may have embraced Mother Nature, but their next-door neighbor, the Paynesville Farmers Union Cooperative Oil Company, was still spraying away. Pesticides and herbicides drifted onto the Johnsons farm.Seeing the neighboring farm much like a chinchilla sanctuary might view a petrochemical plant as a neighbor, the Johnsons filed complaints in 1998, 2002, 2005, 2007, and 2008. The Minnesota Department of Agriculture cited Farmers Union four times for violating Minn.Stat. 18B.07, subd. 2(b) (2010), which made it illegal to apply a pesticide resulting in damage to adjacent property.Having had enough of chemicals wafting onto their pristine, virginal, chemical-free land, the Johnsons sued in Minnesota state court in January 2009, alleging, among other things, that Farmers Union committed trespass by allowing its chemical fumes to invade their property.A state trial court was unconvinced. It granted summary judgment to Farmers Union, on all claims, including the trespass claim, holding that trespass by particulate matter was not recognized in Minnesota.Leading the charge for Birkenstock-wearing lovers of fields and streams everywhere, the Johnsons appealed.The Law of Pig FumesIn rejecting the Johnsons'' claim, the trial court relied on the Minnesota Court of Appeals'' decision in Wendinger v. Forst Farms, Inc., 662 N.W.2d 546 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003). The facts leading to the court battle in Wendinger are every homeowner''s worst nightmare.The Wendingers and the Forsts had been neighbors for years. They had also farmed their lands for years, and the Wendingers built a new home on their land in 1984.In 1994, the Forsts entered into an agreement with Wakefield Pork, Inc., to construct and maintain a pig farm to house Wakefields'' pigs. In a design sure to make anyone nauseous, liquid pig waste was stored in an outdoor concrete lagoon. The pig poo was then pumped and spread on the fields each fall.As the scents from farmyard feces filled the ambient air, the Wendingers began to complain. Then, they filed scores of complaints with state and local authorities. Finally, they sued.Among their allegations was a claim for trespass, arguing the pig fumes entering their property constituted trespass.A trial court dismissed the trespass claim, and the Wendingers appealed. The Minnesota Court of Appeals affirmed, holding that the Wendingers'' claim was one for nuisance--not trespass--because the odors of which the Wendingers complained interfered with the use and enjoyment of their land, not with their exclusive possession of it.The trial court in Johnson used the Wendinger decision for the proposition that particulate matter traveling from one property to another could not constitute trespass. However, the appellate court in Johnson held the trial court read too much into the pig fume decision.Pesticides are not Pig FumesAlthough the appellate court in Wendinger used the phrase, "particulate matter," the appellate court in Johnson held all particulate matter is not alike."Nothing in our Wendinger analysis indicates that we intended the term particulate matter to define a unique category of physical substances that can never constitute a trespass," the court said. Basically, the court held pesticides are not pig fumes."Unlike the plaintiffs in Wendinger, the Johnsons do not claim trespass based on transient odors. Instead, they primarily complain that the liquid chemicals that the cooperative sprayed into the air from neighboring fields drifted, landed, and remained on the Johnsons'' organic crops in detectable form, contaminating them." Judge Kevin Ross wrote for the court.Where the Wendinger court said there was no trespass because the pig fumes only affected enjoyment of the land, not possession of it, in ruling for the Johnsons, the appellate court in Johnson held that pesticides can affect both possession and enjoyment."The errant dispersion of pesticides, which contain chemicals designed to affect the land, can interfere with possession," the court said.So, the next time youre cooking your Aunt Betsys Garlic and Sauted Sardine Surprise, youre probably okay--even if it does ruin the ambiance of your neighbor''s garden. But, if you spray Raid, and it ends up in your neighbors Cheerios, he may just lawyer-up.______________________________July 28, 2011The Law of Protecting Celine DionHow important is protecting Celine Dion?After all, she sells millions of records, and many middle-aged women adore her. However, there are millions more who would rather spend a weekend in an Iranian torture chamber than listen to Ms. Dion sing the theme from Titanic for the 4,761st time.The woman may need some protection.Well, in a development that may damage U.S.-Canadian relations and come as a shock to fans of syrupy, schmaltzy pop music, a federal appellate court has held that serving as Celine Dion''s bodyguard does not constitute an original contribution of major significance in a field of endeavor sufficient to warrant the granting of a EB-1 visa.The BodyguardHad the court heard the case of Kevin Costner''s character protecting Whitney Houston in The Bodyguard, the whole thing might have gone differently. Mr. Costner''s character had made a major contribution in the field of celebrity personal protection by serving as a U.S. Secret Service agent. Such a high level of demonstrated skill and accomplishment might have brought him a visa.But what if, instead of being employed by the U.S. Department of the Treasury to be part of elite squad of livesavers, Mr. Costner had been employed to protect the top-selling female Canadian recording artist of all time by the pride of Charlemagne, Quebec herself?Would the United States grant a visa to the man who had protected Canada''s fourth most famous export--next to Keanu Reeves in Bill and Ted''s Excellent Adventure, maple syrup, and those deeply disturbing Sarah McLachlan commercials with the abused puppies and kittens?Nikolaos Skokos thought they should.Mr. Skokos, a security consultant for Celine Dion, applied to the United States Department of Homeland Security (DHS) for an EB-1 visa, and DHS rejected him. Apparently, DHS didnt think protecting the vocal cords that brought Beauty and the Beast to warm the hearts of little children was important enough.To see what an affront this might be to Ms. Dion''s throngs of adoring fans, it helps to know a little bit about the legal process behind granting visas to enter the United States.Legal TitanicIn addition to establishing a lottery for certain visas and dropping homosexuality as a basis for exclusion from the United States, the Immigration Act of 1990 created the EB-1 visa to attract immigrants with exceptional talents and skills.The EB-1 visa has three types, one for multinational executives and managers, one for professors and researchers, and one for applicants of extraordinary ability. Two of the ways an applicant can demonstrate this extraordinary ability are showing he had made original contributions of major significance to his field of endeavor under 8 C.F.R. 204.5(h)(3)(v) or showing she was paid a high salary compared to others in her field under 8 C.F.R. 204.5(h)(3)(ix).Not only did DHS feel that protecting Celine Dion did not meet this standard of excellence, the U.S. District Court for the District of Nevada agreed with DHS, holding for the government and rejecting an appeal filed by Mr. Skokos.In the legal equivalent of running the Titanic into an icebergwhile listening to Celine Dion sing about it as Leo and Kate flail in the frigid waters of the North Atlantic, Mr. Skokos appealed to the U.S. Court of Appeals for the Ninth Circuit in Skokos v. Department of Homeland Security, and fared no better.The appellate court held Mr. Skokos failed to establish that his work for Ms. Dion constituted an original contribution of major significance to the field of bodyguarding. In addition, the court held he failed to establish that he was paid more than most celebrity bodyguards.The court noted Mr. Skokos claimed he was far more than a bodyguard--he supervised guards, made security arrangements in the exotic destinations where Ms. Dion shot her mesmerizingly dramatic videos, and provided around-the-clock protection for Ms. Dion and her family. Nevertheless, the court was unmoved that protecting the valuable Canadian export was sufficiently significant to get a visa.The court noted the high standard for granting an EB-1 visa, citing the case of Kazarian v. USCIS, where a physicist who had published articles, written a textbook, and lectured extensively didnt even qualify for an EB-1 visa because his work--although satisfying the criterion for authorship of scholarly articles--did not establish that his work was of major significance in the field of physics.But, is writing scholarly articles and lecturing on physics at universities really as important as ensuring the gaffer and the best boy don''t snag Celine Dion''s Perrier from the buffet table?Of course, some people have managed to prove they are important and accomplished enough to get an EB-1 visa. Golfer Nick Price got one, but--unlike Mr. Skokos--he had won multiple championships, earned over a million dollars in prize money, and he had Jack Nicklaus, Lee Trevino, and Hale Irwin execute affidavits supporting his position.If only Mr. Skokos had managed to get a raise from Celine Dion and recommendations from Gladys Knight and the Pips.______________________________David Horrigan is an attorney, journalist, analyst at The 451 Group, editorial director at Courtweek.com, and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in The Washington Examiner, Law Technology News, The American Lawyer, The New York Law Journal, The San Francisco Examiner, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: firstname.lastname@example.orgJuly 20, 2011American Idol''s American LitigantMany contestants on the hit television show, American Idol, may believe Simon Cowell is a somewhat nasty fellow. He berates participants, calls them names, and generally makes people wonder if his momma taught him any manners. Nevertheless, most of these verbal salvo victims don''t sue. But, one did, leaving us with the question: Does Simon Cowell''s boorish behavior on American Idol violate Title VII of the Civil Rights of 1964?Effeminate Idol?In what some take as evidence of the decline of Western civilization, American Idol, the American spin-off of the British program, Pop Idol, has become one of the most successful shows on television. Contestants participate in singing competitions to win recording contracts, and the winners, including singers Kelly Clarkson and Carrie Underwood, have gone on to fame and fortune.Some of the contestants weren''t as talented. One of those contestants was Ian Bernardo.Mr. Bernardo first appeared on American Idol in 2006 on the opening show of the season. These season-opening audition shows feature a few acts that will advance in the competition and a few acts that will come close. They also feature performers with no reasonable chance of advancement. These contestants--possessing little or no talent--apparently appear to provide comedic material by making fools of themselves. Apparently, Ian Bernardo was one of these comedic contestants for the 2006-2007 season.Not surprisingly, Mr. Bernardo was unsuccessful in his American Idol audition. However, Mr. Bernardo--who described himself as "having a non-conforming appearance based on gender stereotype," which a U.S. District Court interpreted to mean that "he appears to conform to a stereotype of an effeminate homosexual male"--did make subsequent appearances on the show for the 2006-2007 season finale and for Simon Cowell''s final appearance on the show in May 2010.The Courthouse AuditionClaiming he was an employee of American Idol Productions Inc. on each of his appearances, Mr. Bernardo claimed also that he was subject to discrimination and harassment due to his sex on each of his appearances. He claimed American Idol Productions employees told him to "gay it up" and that producers conditioned his appearance on Mr. Cowell''s farewell show on Mr. Bernardo''s willingness to be "outrageous, flamboyant, and really gay."Claiming he was also subject to epithets such as "fag" and "homo," Mr. Bernardo filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC). He obtained a right to sue letter from the EEOC and sued American Idol Productions for violations of Title VII of the federal Civil Rights Act of 1964 and New York State law.American Idol Productions moved to dismiss the case, making several arguments. In addition to claiming Mr. Bernardo suffered no adverse employment action, the producers argued Mr. Bernardo had failed to make a case for hostile work environment under Title VII. Although the court conceded that--if true--the conduct at the Simon Cowell farewell show would constitute a hostile work environment, the court rejected Mr. Bernardo''s legal argument.Noting Title VII is not a civility code and that discrimination on the basis of homosexuality is not prohibited under Title VII, the court held Mr. Bernardo had not established that gender stereotyping, which is prohibited by Title VII, had so permeated the workplace so as to create a hostile work environment.The court went on to dismiss all Mr. Bernardo''s claims, noting, "He, like everyone else with a modicum of talent (or less) who auditions for American Idol, chose to appear on a program that was famous for its judges'' insulting behavior. Benardo went on the air after being told what was expected of him, and he knew what to expect. Having volunteered to be insulted, he cannot now claim that he was sexually harassed."There was no word as of press time as to any possible Ian Bernardo appellate audition at the Second Circuit._____________________July 10, 2011Suing After Ferocious Puppy PanicPeople are injured in Americas stores, streets, and subways all the time, making personal injury law a big business. Its also one of the most contentious. Some cases may seem easy, but what if youre injured after being chased down a supermarket aisle by a charging dog owned by a store employee? Should the store be liable? Two Mississippi courts disagreed recently. Of course, it helps if you know something about the dog.Attack in the Artichoke AisleLenetra Outlaw decided to do some shopping at her local Penny Pinchers discount grocery store in West Point, Miss., one day in Aug. 2006. An otherwise pleasant shopping day took an unfortunate turn when Ms. Outlaw heard a sound that gripped her with fear and panic.She heard a dog bark.Ms. Outlaw then heard the terrifying sound of dog claws on Penny Pinchers'' floors as the possibly ferocious beast came charging down the aisle. Ms. Outlaw, who said she was extremely afraid of dogs, decided it was time for drastic evasive maneuvers.She ran down the aisle, made a turn, and sought refuge from her brutal foe. Not finding a safe place in the aisle, she ran into a freezer. Thinking that wasnt safe enough--after all, she probably saw the movie, Cujo--Ms. Outlaw leaped on top of the freezer. In her Quixotic quest to escape Armageddon, Ms. Outlaw exacerbated a previously existing hip injury, and decided to sue Penny Pinchers and Cindy Scott, the store manager who owned the attack dog.A Mississippi state court jury found for Ms. Outlaw and awarded her $130,000, finding Penny Pinchers 70 percent at fault and Ms. Scott 30 percent to blame.At this point, you may be wondering, What''s so interesting about this case?Remember at the beginning we told you it would help if you knew a little about the dog?Baby Weiner DogIt turns out this allegedly ferocious attack dog was nothing more than a four-month-old Dachshund puppy. That''s right. A little weiner dog weighing four pounds.It seems Ms. Scott brought the adorable puppy named Sophie to work every day. The pleasant little puppy had never attacked anyone before. Ms. Scott kept Sophie behind the counter--not to protect customers, but so that no one would step on the little thing. Rather than a 150-pound Rottweiler with a spiked collar, Ms. Outlaw jumped on top of a freezer in mortal fear of a tiny weiner dog puppy.Given this fact pattern, Penny Pincher and Ms. Scott decided an appeal was in order. The issue facing the Mississippi Court of Appeals in Penny Pinchers v. Outlaw: Did the presence of the four-month-old Dachshund puppy create an unreasonably dangerous condition at Penny Pinchers that day?The court noted that the Mississippi Supreme Court had held that dogs are not dangerous per se. The Magnolias State''s dog-loving supreme court held in Poy v. Grayson that to impose liability on a dog owner for personal injuries, a plaintiff must show the dog had a propensity for violence and that the owner knew it.The court in Penny Pinchers noted that the four-month-old, four-pound bundle of love, Sophie the Weiner Dog, had a clean record.Citing the Mississippi Supreme Courts 1969 decision in General Tire & Rubber Co. v. Darnell, the court went on to hold that a premises does not have to be completely safe from any hazardonly reasonable safeand that the plaintiffs own actions can be a factor."We acknowledge Outlaw''s extreme fear of dogs. However, we cannot say that it was reasonable for Penny Pinchers to anticipate that anyone, even someone with a great fear of dogs, would have such a reaction to Sophie''s presence in the store," Judge Thomas Griffis wrote for the court.Thus, we feel confident in saying, if you hurt yourself jumping on top of a freezer to escape a four-pound Dachshund puppy, don''t bother suing anyone because its probably your own fault.__________________________June 29, 2011A Defamer''s Guide to ''Dirtbag v. Dirtbag''What does it really take to slander or libel someone? The law of defamation can be complex, but a New York state court recently tried to sort out this weighty issue: What is a "dirtbag," and is the term defamatory?The issue arose after a man named William Schumacher penned comments that another man, John Acheson, was "the biggest dirtbag" he had ever met in his life. Acheson sued Schumacher before Westchester City Court in what, amusingly, could become a seminal case of black letter law. Apparently, no other U.S. court has ever issued a reported decision on the issue of whether it is defamatory to call someone a "dirtbag."Citing a New York precedent, the court in Acheson v. Schumacher said libel or defamation was "a writing or broadcast that tends to expose the plaintiff to public hatred, contempt, ridicule, or disgrace." The court went on to cite the five proving elements of the tort, including the truth or falsity of the statement and whether the complaining party actually sustained damages.Without offering any citation, the court defined "dirtbag" as "an informal term" meaning "a dirty, grimy, sleazy, or disreputable person." The court went on to explain various possible meanings for Mr. Schumacher''s allegedly defamatory statement. Did Schumacher mean that Acheson was the physically largest of the dirtbags he had known? Or perhaps just one of the most powerful? The court surmised also that Schumacher may have believed Acheson to be "just a tad worse" than the other dirtbags he had known.The point the court was making was that -- in any case -- these statements would all be opinions. Citing the case of Gilliam v. Richard M. Greenspan, P.C., the court held that statements of opinion are not defamatory. (In Gilliam, one lawyer penned a nastygram, saying unflattering things about another lawyer. The court held it was opinion and threw out the case.)But don''t take these court decisions as a license to spew any insult you please. In Lund v. Chicago and Northwest Transp. Co., a Minnesota appellate court held that certain epithets -- in that case, the unfriendly word "s---head" -- used alone might be only "unactionable rhetorical hyperbole," but combined with other defamatory words or statements, such words could "take on actionable characteristics."It also matters where and when insults are hurtled. In National Recruiters Inc. v. Cashman, the Minnesota Supreme Court found it slander when a plaintiff was called "a no-good loser; a no-good son of a bitch" in the context of an employment reference.Other courts are more hostile toward such lawsuits. When ESPN posted a photo of daredevil Evel Knievel and his wife with the caption, "Evel Knievel proves you''re never too old to be a pimp," the Knievels sued the network for defamation. They lost on the grounds that a reasonable person would not have taken the photo and caption to mean Evel was literally a pimp and Krystal his prostitute, despite their 29-year age difference and his rose-tinted glasses in the photo.And Florida courts have held that even such insults as "cockroach" and "mega-scumbag" do not constitute defamation, nor do references to a woman''s "poor feminine hygiene." Despite being "crude and indecent," such comments were considered permissible as "satirical hyperbole."The bottom line is that you can freely call someone a dirtbag or a mega-scumbag, but be careful the next time you write a letter of recommendation. If you can''t say something nice, at least don''t say anything that will get you sued.___________________________David Horrigan is an attorney, journalist, analyst at The 451 Group, editorial director at Courtweek.com, and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in The Washington Examiner, Law Technology News, The American Lawyer, The New York Law Journal, The San Francisco Examiner, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: email@example.comRead more at the Washington Examiner: http://washingtonexaminer.com/opinion/op-eds/2011/06/defamers-guide-dirtbag-v-dirtbag#ixzz1Qfc82pzXJune 12, 2011The Law of Ben & Jerry''s and Natural BeansHave you ever wondered just what "all natural" means? There was once a professor who reminded his students that the bubonic plague was all natural. Various merchants--from sellers of cereal to purveyors of popcorn--claim their products are "all natural." Ben & Jerrys claimed its ice cream was all natural, but the Center for Science in the Public Interest didnt agree, so they got someone to sue Ben & Jerry''s.So, we can attempt to discover once and for all just what all natural means, the tale of Chubby Hubby, Chunky Monkey, and Cherry Garcia defending their honor gets to be this week''s Case of the Week.Activist ice creamIn the 1970s, childhood friends Ben Cohen and Jerry Greenfield took a correspondence course in ice cream making. Then they scraped up $12,000, opened an ice cream shop in an old Vermont gas station, and delivered dairy products in a station wagon. Ben & Jerry''s Homemade Inc. was born, and, as they say, the rest is history.Ben & Jerry''s expanded quickly. Not only was the company known for its tasty ice cream with imaginative names, Ben & Jerry''s became known as a leader in social and environmental activism. The growing company tried to promote world peace, and--from green dairy farms to recycled supplies--Ben & Jerry''s made environmental stewardship a focal point of its operations. In addition, Ben & Jerry''s donated 7.5 percent of the companys pre-tax profits to charity through the Ben & Jerry''s Foundation. In 2000, Ben and Jerry sold the company to Unilever.Although they are now very rich dudes, Messrs. Cohen and Greenfield and their ice cream operation still conjure up images of granola, Birkenstocks, peace signs, and...well...things that are all natural. Of course, the labels of Ben & Jerry''s ice cream read all natural, too. Some people didn''t think it was natural enough.Dutch chocolateAlthough Amsterdam may be more famous for Rembrandt, the Rijksmuseum, and reefers, some people believe the Netherlands is also famous for Dutch chocolate. But, does anyone really know what Dutch chocolate is? Hint: it''s a little more complicated than just being made near The Hague.Chocolate is produced when seeds from cocoa beans are fermented and dried and mixed with fat and powdered sugar. Cocoa powder can be made in two forms: unalkalized cocoa or Dutch-process alkalized cocoa. The unalkalized cocoa is made by merely pressing the beans. The process produces a light brown, very acidic powder.Dutch-process cocoa, on the other hand, is produced by cocoa nibs with a mild alkali solution to raise the pH and thus, lower the acidity. This process improves taste, color and solubility, but it also destroys many of the flavonols, which are believed to have health benefits. Ben & Jerry''s used the Dutch alkanization process.All Natural?The Center for Science in the Public Interest (CSPI) doesn''t think alkanized cocoa is all natural, so it contacted Unilever, demanding that the company remove the words all natural from both Ben & Jerry''s and Breyers ice cream, another brand the company owns. Ben & Jerrys agreed to remove the phrase, all natural, from any products containing alkanized cocoa. Breyers did not.CSPI organized a class action with the ice cream-enjoying Skye Astiana as lead plaintiff of a band of ice cream eaters who hate the allegedly unnatural Dutch chocolate, and sued Ben & Jerry''s in the U.S. District Court for the Northern District of California in Astiana v. Ben & Jerry''s Homemade Inc. They alleged violation of both federal and California law in the labeling of the ice cream as all natural even though its cocoa contained potassium carbonate from the alkanization process.Specifically, the CSPI plaintiffs argued Ben & Jerry''s committed fraud and engaged in false advertising in violation of California Business & Professions Code 17500. In addition, CPSI claimed Ben & Jerry''s violated regulations promulgated by the federal Food and Drug Administration (FDA).Ben & Jerry''s filed a motion to dismiss the case, making numerous arguments, including debating the definition of all natural.The ice cream makers argued that "all natural" was a term of art under FDA and U.S. Department of Agriculture (USDA) regulations. Thus, Ben & Jerry''s argued, for the CSPI plaintiffs to have been deceived by the all natural packaging, they would have had to have possessed an intimate familiarity with the FDA''s natural policy as well as the USDA''s regulations about what constitutes a synthetic process.Ben & Jerry''s was taking the position that Ms. Astiana was merely an ice cream lover and not a federal regulatory expert.In addition, Ben & Jerry''s argued a prospective class plaintiff would have had to taken that extensive regulatory knowledge, then actually have seen the all natural phrase on the package, and then made her own analysis that the ice cream was either not alkanized or that the alkali used in the Dutch cocoa process was not synthetic under the USDA regulations.After all that, under Ben & Jerry''s argument, the potential plaintiff would have had to have relied on that regulatory analysis in deciding to enjoy that pint of Chubby Hubby. Ben & Jerry''s argued that when the reasonable consumer bought her Chunky Monkey, she was not assuming all natural meant alkanized with sodium carbonate and not potassium carbonate.The court wasn''t buying it--at least not for now.The court denied Ben & Jerry''s motion to dismiss, holding that the dispute was too fact-dependent to be thrown out at this point."Moreover, the fundamental dispute--what is a natural product?--will likely present some factual disputes. The only FDA guidance appears to be a distinction between natural and synthetic in the policy, but that definition in the Federal Register is qualified as meaning something that would not normally be expected to be in food. Surely, that characterization raises multiple linguistic and philosophical questions, not to mention factual questions," U.S. District Judge Phyllis Hamilton wrote for the court.So, the battle between Ben & Jerry''s and the enemies of Dutch chocolate will continue. What have we learned this week? Well, according to the U.S. District Court for the Northern District of California, there really isn''t any definition of "all natural"...at least for the moment._______________________________June 5, 2011The Law of Bees and BudsWhat does it mean to operate a motor vehicle? It seems to be a simple question. Get a bunch of lawyers and judges involved, and it becomes anything but. Although alleged drunk driving cases are where this question is asked most often, this week''s "Case of the Week" asks it in a different setting.What about when that motor vehicle is attacked by a swarm of bees?Unhappy HiveOne May day in 2009, Michael Corpus called animal control for the city of McAllen, Tex. It seems he was having a bit of a problem with a beehive.City of McAllen Animal Control Officer Roberto Mata responded to the call, and upon arrival at the scene, Mr. Corpus asked Officer Mata to accompany him to the hive with the swarming army of displeased bees.Possibly remembering what happened to the fools who tried to go into a hotel room with Mike Tyson''s tiger, Officer Mata said something along the lines of: "I don''t think so; Homey don''t play that," and refused. Officer Mata insisted Mr. Corpus accompany him to the hive.So the two gentlemen entered Officer Mata''s animal control vehicle, equipped with animal protection equipment. Officer Mata donned protective gear and approached the hive of danger, but he instructed Mr. Corpus to remain safely in the animal control vessel as the engine remained running.Things would have been just fine and dandy had Officer Mata not done something that may have been somewhat unwise.Insects Attack!Not unlike a Saturday Morning Super Hero decked out in protective gear as he makes Saturday mornings safe for kiddie sales of sugary cereal and overpriced toys, Officer Mata approached the hive in his protective animal control gear. Then, the swashbuckling hero of animal protection began spraying the bees.Guess what happened next?Shockingly, the bees attacked. But, no worries. Officer Mata was protected by his animal control gear. The problem was what Officer Mata did next.To escape the mighty swarm, Officer Mata ran to the truck, opened the door, and hopped in.The only problem, of course, was that, when he opened the door to the animal control truck, he let in a bunch of very angry bees--who proceeded to have a field day biting the [expletive deleted] out of the unprotected corpus of Mr. Corpus.Mr. Corpus was not amused.What do unamused people do in this column? They sue.The Law of Bees and CarsMr. Corpus sued the city of McAllen, alleging Officer Mata''s negligent operation of his city-owned vehicle cased serious injuries to Mr. Corpus.Operating a motor vehicle? What about spraying the bee hive and opening the truck door so the bees could turn Mr. Corpus into a walking, talking pin cushion.Actually, Mr. Corpus had a smart lawyer.You see, government entities are usually only liable in civil suits if they waive what lawyers call sovereign immunity, the government''s immunity from legal actions. Governments waive sovereign immunity for certain activities. Basically, you can sue the government only if the government says you can sue the government.One of the exceptions to sovereign immunity in Texas is for operation of motor vehicles. If Mr. Corpus'' lawyer could show Officer Mata was operating the animal control truck, then he would have a case under the exception to sovereign immunity.So just what does it take to be operating a motor vehicle?If you asked a bunch of convicted drunk drivers, they would probably tell you Officer Mata was operating the animal control truck. That''s because courts have held that, to be guilty of drunk driving, all one must do is sit in the drivers seat with the key in the ignition.Bud or Bees?For instance, in People v. Wood, Andrew Wood had a very unfortunate night at McDonald''s. When he pulled up to the drive-up window in his van, he passed out--with his car running--and, giving new meaning to the phrase, "This Bud''s for you," he had a can of Budweiser between his legs. At least it wasn''t hot coffee. Oh yeah, he also had a cooler full of marijuana on the front seat.The legal story from the bad night at the Golden Arches wasn''t so bad for Mr. Wood at first. Both a trial court and an intermediate state appellate court threw out the evidence against him, holding he was not operating his van at the time of the arrest and search.However, the Michigan Supreme Court reversed both courts and held Mr. Wood was operating the motor vehicle even though his van wasn''t moving, and he had his foot on the brake. Noting that his van was running and in drive, the state''s high court held he was operating the vehicle because he had put the vehicle in motion, was still in control of it, and the vehicle still posed a danger to the public. In doing so, the court reversed two previous Michigan cases that held one could not be sleeping and operating a motor vehicle at the same time.Actual physical control of the vehicle is the standard used by many jurisdictions, and in Illinois, Michigan, Minnesota, and Nevada, that control can be maintained while sleeping.Putting the key in the ignition will get you in some states, including Vermont. In the Vermont Supreme Court case, State v. Helton, one hapless, inebriated fellow was convicted of DUI for merely putting his keys in the ignition to roll up his car windows--after he had gone to retrieve his vodka from the car.Note to self: appoint a designated sober window operator.So what about Officer Mata, was he in control of the vehicle and thus operating it for purposes of Mr. Corpus bee attack case?Departing from the case law of other states, both the trial court and the Texas Thirteenth Court of Appeals said "no.""The animal control truck was not in operation; it was parked. Corpus was injured when the bees entered the cab of the truck where he happened to be sitting. Although we do not condone Mata opening the truck door and exposing a passenger not wearing protective gear to agitated bees, we nonetheless cannot conclude that Corpus''s injuries resulted from the operation or the use of the truck," Judge Nelda Rodriguez wrote for the court.So for this week, we''ve established that you are operating a vehicle in Michigan if you''re asleep at the wheel in the McDonald''s drive-through with weed on the seat and Budweiser between your legs, but that you''re not operating a running vehicle in Texas with a swarm of bees on the seat and between your legs.Either way, its not a Happy Meal._____________________________David Horrigan is an attorney, journalist, analyst at The 451 Group, editorial director at Courtweek.com, and former staff reporter and assistant editor at The National Law Journal. His articles have appeared also in The Washington Examiner, Law Technology News, The American Lawyer, The New York Law Journal, The San Francisco Examiner, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: firstname.lastname@example.orgRead more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/06/law-bees-and-buds#ixzz1OXOJfS6kMay 29, 2011The Law of Rambo and Air FreshenersOur column two weeks ago about the Fourth Amendment has generated some discussion about just what will negate yourFourth Amendment protections and allow the cops to haul your posterior end to jail. As a public service to help our readers remain free from bondage, we will, from time to time, present our Case of the Week: Fourth Amendment Follies edition.This weeks helpful hint: Don''t use too much air freshener.Druggies from CharlotteRobert Little was traveling through the pleasant North Carolina hamlet of Thomasville early one August morning in 2008. It might not have been any big deal, but it was 4:03 in the morning, and Mr. Little was driving an old Buick with a malfunctioning headlight.Bonus reader helpful hint! If you''re carrying contraband, don''t drive through a small Southern town at 4:03 in the morning in an old Buick with a busted headlight. Bad things will happen. At least wait until 5:00 when the first batch of doughnuts comes off the conveyor belt at the local Krispy Kreme.Because Mr. Little didn''t get the memo on suspicious vehicles lurking through the Bible Belt during the wee hours of the morning, he got to meet Officer Adam Kallfelz of the Thomasville Police Dept.Officer Kallfelz observed three things that made him decide it was time for back-up.First was Mr. Little''s nervous and agitated demeanor. Second, Mr. Little said he was traveling from Charlotte. Finally, Mr. Little had approximately 10 tree air fresheners hanging from the rear-view mirror.Before we get to those pesky air fresheners, please allow us to defend the good people of Charlotte, North Carolina. You''re a fine city with an economy built on good barbecue and Bank of America overdraft fees, and--unlike Office Kallfetz--we don''t think you''re a bunch of druggies. We don''t think people should be stopped by the cops just because they''re coming from Charlotte.But, back to those tree air fresheners.Rambo RaidA nervous dude driving from Charlotte with 10 air fresheners made Officer Kallfelz realize he needed a crime deterrent.It was time for Rambo.At 4:07 AM, Officer Kallfelz called Officer Christopher Leonard, asking him to bring his partner, Rambo.Not unlike Sylvester Stallone searching swamps for sadistic Viet Kong alumni, Rambo, a drug dog, went over that old Buick like a frat boy going through sofa cushions looking for that lost last joint.Rambo signaled for the presence of narcotics in the Buick''s door, and Mr. Little was arrested for being a felon in possession of a firearm.Mr. Little moved to suppress the evidence, arguing the search was illegal, but a trial court denied the motion, holding that the stop and the search were lawful. Mr. Little appealed.Air Freshener JurisprudenceIn his appeal to the North Carolina Court of Appeals, the Tar Heel State''s intermediate appellate court, Mr. Little argued in State v. Little that the search was improper because the cornucopia of air fresheners did not provide reasonable suspicion for extending the stop until Rambo arrived.Unfortunately for Mr. Little, North Carolina has a proud tradition of air freshener jurisprudence. They even go after Santa Claus if there''s air freshener involved.In State v. Hernandez, the North Carolina Court of Appeals held a stop was proper when it was based, at least in part, on Christmas tree air fresheners.In Hernandez, Trooper Jonathan Whitley of the North Carolina Highway Patrol stopped a vehicle when driver Jose Hernandez removed his seatbelt while still operating his vehicle. Not unlike with Mr. Little''s arrest, air fresheners would help lead to Mr. Hernandez''s undoing."I noticed there were several of these Christmas trees, air fresheners in the vehicle. I noticed a strong odor coming from the vehicle," Trooper Whitley testified in defending his actions.Christmas tree air fresheners as a basis for detaining a motorists? Well, the court upheld the stop, and the court in Little followed the court in Hernandez."Facts giving rise to a reasonable suspicion include nervousness, sweating, failing to make eye contact, conflicting statements, and strong odor of air freshener," Judge Martha Geer wrote for the court in Little.And, if you think North Carolina is the only state fighting the war on air freshener, you would be wrong.In Commonwealth v. Watts, the Massachusetts Appeals Court held reasonable suspicion could be based, in part, on the presence of fabric softener drier sheets.The federal courts have joined this attack on pleasant aromas as well. In United States v. West, the Tenth Circuit proclaimed, "The Tenth Circuit has consistently held that the scent of air freshener is properly considered as a factor in the probable cause analysis, and in the Eleventh Circuit held in United States v. Wright that evidence of a drug conspiracy existed based partially on the fact that two persons entered the Winn-Dixie together to purchase carpet freshener and fabric softener; materials known to be used to mask the odor of cocaine.Many other federal circuits, including the Third, Fifth, Seventh, Eighth, and Ninth, have upheld convictions based, in part, on the presence of fabric softener, and in United States v. Edmonds, the Third Circuit upheld a trial court''s refusal to believe a drug mule was a mere unsuspecting courier. Why? She brought along a box of Bounce fabric softener sheets.So, the lesson from this week''s Case of the Week: with a Mountain Fresh scent filling the air, your dorm hall monitor in college didn''t believe you then, and the cops don''t believe you now. If you have contraband and notice Rambo sniffing your car, ditch the fabric softener...Bounce can get you busted.____________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/05/law-rambo-and-air-fresheners#ixzz1Nvzi9iNpMay 22, 2011The Law of Airport TipsHave you ever been sitting in a hotel room, staring at a room service bill, trying to determine whether the service charge added to your bill is the tip? And let''s not even get started with deciphering the cryptic hieroglyphics known as the cable bill.But what if your employer hoisted a sign informing customers there would be a two-dollar charge for your services? Would that payment be your tip? Would posting that sign get somebody sued? Of course, it would. This is the Case of the Week.Air a la carteOur story begins in Sept. 2005, when American Airlines began charging a $2.00 fee for passengers to check a bag at curbside.Before this policy began, curbside check-in was free, but customers tipped the skycaps--usually a dollar per bag--for curbside service. Until American went and messed up things, most skycaps earned most of their earnings from tips.As the airline industry faced significant financial problems, airlines began charging for many services that had been free. This a la carte fee system affected everything from headphones to handbags.Want to watch the in-flight movie? No problem. That''s free. Want to hear it? Two dollars for headphones, please. Want to eat? Pay up.Pay2Pee, the world''s first aircraft pay toilet, can''t be far away.At the moment, we can add curbside check-in to our non-complimentary airline a la carte menu.American--and its subcontractor actually employing the skycaps--made out like Tijuana bandits. The charge was designed to defray the cost of curbside service in a dark and dreary economy, but it actually became a profitable business venture for all...except the skycaps themselves.Many passengers thought American''s $2.00 fee was the tip. Others felt $2.00 per bag was enough to pay for curbside service. The end result was the same: the skycaps lost a significant amount of their income as tips plummeted.Suing SkycapsTwo skycaps at Boston Logan International Airport sued American and the contractor, seeking class certification and arguing that American''s curbside fee violated the Massachusetts statute governing tips, Mass. Gen. Laws, ch. 49, 152A (2008), constituted tortious interference with an advantageous relationship, unlawful conversion, and unjust enrichment under Massachusetts law, and that the skycaps were entitled to restitution under the legal theory of quantum meruit.The skycaps'' employer was dismissed due to an arbitration agreement, and American removed the case from a Massachusetts commonwealth court to federal court.The skycaps argued Massachusetts law prohibited American from charging the curbside baggage fee because the fee qualified as a service charge under the commonwealth law because it was a fee that a consumer would reasonably expect to be given to the skycap.American countered that the skycaps suit was preempted by the federal Airline Deregulation Act of 1978. When a federal law preempts a state law on an issue, the federal statute has sole jurisdiction, and the state statute is preempted and nullified for purposes of that dispute.The District Court held for American on several grounds, but held for the skycaps on the preemption argument. Thus, the claims under the Massachusetts tips law and for tortious interference were tried to a jury.Big TippersIt turned out the jury was a bunch of big tippers. The jury found for the skycaps in April 2008 and awarded damages in the amount of $2.00 to each skycap for every bag handled between Sept. 2005 and the verdict.Thus, the jury awarded the nine prevailing plaintiff skycaps approximately $333,000 in damages plus interest and attorney fees. One plaintiff skycap from the St. Louis airport did not get to share in the bounty because--as a citizen of Missouri--he was not covered by the Massachusetts tip law.But, our story is not over. Cheap tippers can rejoice. American appealed, and the First U.S. Circuit Court of Appeals handed down a decision bound to make Parisian tourists do a happy dance.The First Circuit reversed the district court and ruled for American in DiFiore v. American Airlines, Inc., holding that the Massachusetts tip statute was, in fact, preempted by the federal Airline Deregulation Act.Although the appellate court conceded there was conflicting case law, it relied on three U.S. Supreme Court cases, Morales v. Trans World Airlines, Inc., American Airlines, Inc. v. Wolens, and Rowe v. New Hampshire Motor Transport Assn, in holding that the federal law preempted the Massachusetts tip statute vis--vis the skycaps tips.The court held the commonwealth''s law was preempted when applied to Ameircan because it was related to a price, route, or service, noting that related to and service were statutorily broad terms.The First Circuit rejected the skycaps'' argument that the tip law''s connection to airline price, route, or service was so tenuous, remote, or peripheral as to not trigger preemption under Morales or Rowe."This, to borrow an apt airplane image, is walking into a rotating propeller: the advertising and service arrangements are just what Congress did not want states regulating, whether at high cost or at low. When the Supreme Court invoked the rubric ("tenuous, remote, or peripheral"), it used as examples limitations on gambling, prostitution, or smoking in public places--state regulation comparatively remote to the transportation function," the court said.So, next time you go to the airport, please remember that--because a federal court has ruled that curbside check-in is not like betting on ponies, retaining the services of a hooker, or smoking a joint at baggage claim--these guys aren''t protected by the Massachusetts tip statute.Even if you pay an airline curbside baggage fee, please, folks, tip your skycap.________________________May 14, 2011The Fourth Amendment and the Law of Bongs and BaggiesThe Fourth Amendment provides some of our greatest protections from government. It keeps colonial constables out of our tea, J. Edgar Hoover and the FBI out of our mothers underwear drawers, and seizure-hungry sheriffs out of our Chevys.Yet, as with anything, the Fourth Amendment is not absolute. The Fourth Amendment prohibits only unreasonable searches. Thus, if police have probable cause for a search, its not unreasonable, and the Fourth Amendment won''t stop it. In fact, the Fourth Amendment has a specific clause allowing searches with probable cause.A recent Massachusetts case gets to be our Case of the Week because it addresses the novel legal question: Does the presence of a bong and Baggies constitute probable cause for a search for marijuana?Speeding and SeizingWhen Shawn Smith decided to do some urban drag racing with friends, he probably should have left his bong at home. For readers who may be unfamiliar with the household appliance known as the bong, it is a water pipe--used by some to smoke marijuana.The speeding Mr. Smith was attempting to outduel a fellow motorist when police clocked him traveling 67 miles per hour in a 40 mile per hour zone.When police stopped the Smithmoblie, they noticed a bong and an open box of plastic sandwich bags in the car. The police testified that, based on their experience, a bong and Baggies usually meant one thing...and it usually happens a lot in Cheech and Chong movies. Yes, police thought they were dealing with that plague on humanity: marijuana.Having spotting the offending bong and Baggies, law enforcement swung into action.Police ordered Mr. Smith from the car, and frisked him. They asked him if there were any marijuana in the car, and he said there was not. However, Mr. Smith admitted he had some herbal enjoyment in his pocket. Police seized it, arrested Mr. Smith, and impounded his speedy car. Shockingly, they found more marijuana.However, in a development that will be significant legally later in our story, police did not detect any marijuana smoke or residue in the bong.Evidence Up in Smoke?Sure, police get to do an inventory when they seize a car. In this week''s case, police were arresting Mr. Smith for his weed, so they got to go through his car and inventory everything. However, when police misbehave, there is a judicial remedy known as suppression of the evidence. For those who never have time to watch Law and Order, that means the evidence is thrown out because the cops got it illegally.In this case, because the police failed to give Mr. Smith his Miranda warnings before giving him the Spanish Inquisition, Mr. Smith moved to suppress evidence of the search.However, Massachusetts prosecutors argued the bong and Baggies sitting in the car in plain sight gave the police all the probable cause they needed to search the carMiranda or not. In essence, the Commonwealth argued, it was the probable cause supplied by the bong and Baggiesnot the Mirandaless utterances of Mr. Smith that gave police the pot.Both a trial court and the Massachusetts Appeals Court, the commonwealths intermediate appellate court, rejected prosecutors'' arguments and threw out the evidence--and thus, the case. Citing Massachusetts case law, the court held that bongs and Baggies--and nothing more--do not give the police probably case for a search.Bong and Baggies LawThe Appeals Court distinguished Mr. Smith''s case from two previous Massachusetts Appeals Court decisions where bongs did lead to probable cause for a search: Commonwealth v. Dolby from 2000, and Commonwealth v. Correia in 2006.It is true the facts in all three cases were somewhat similar: cops stop car, cops see bong, cops arrest driver. However, Smith differed from Dolby and Correia in one, key respect. Unlike in Dolby and Correia, in Smith, there was neither marijuana smoke nor residue present in the bong.The Appeals Court said that distinction was critical. In Dolby and Correia, the evidence was not suppressed, but it was because there was residue in the bong--not because police spotted an innocent bong just hanging out, minding its own business, with no nefarious residue or smoke.Baggies get the same constitutional protections.Citing its decision in Commonwealth v. Garcia, the court held, the observation of two lawful items--the bong and the box of sandwich bags--did not supply probably cause. The court articulated its rationale in Garcia:"The trooper''s experience, coupled with his observation of an apparently empty baggie, is not enough to provide probable cause to conduct a warrantless search of the automobile. Benign objects such as spoons, mirrors, and straws are often used in the narcotic trade. To allow police officers, experienced in narcotics investigations, to conduct a warrantless search whenever they observe one of the above items, and nothing more, would permit random searches, which are condemned by the Fourth Amendment and the Declaration of Rights," the court said.So, Mr. Smith got off: the evidence was suppressed, and the charges were dropped. The moral of this week''s Case of the Week: if you''re going to go drag racing with your bong in the back seat, at least make sure it is clean._________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/05/law-bongs-and-baggies-fourth-amendment-searches-probable-cause-miranda-marijuana#ixzz1MKivXiVWMay 8, 2011The Law of Cow Bones and BungeesWhen you buy a product or service, how much information should the seller disclose to you? This week''s Case of the Week examines that issue in a case involving breast implants, bungee cords, a surgeon''s eyesight, and the jurisprudence of cow bone implants...not necessarily in that order.Manmade ChassisDenise Dalien decided she wanted to augment the chassis God gave her, so she consulted plastic surgeon Stanley Jackson of Puyallup, Wash. Dr. Jackson performed breast augmentation on Ms. Dalien in 2000, using saline implants.After a diet and exercise regimen caused her to lose weight, Ms. Dalien noticed some indentation and rippling on what was once her soft and supple upper left bosom.No problem. Dr. Jackson went in again, removed the saline implants, and replaced them with gel implants.Turns out there was a problem. Ms. Dalien was not happy with her new gel bosoms, so under the surgical theory of more is more, Dr. Jackson performed additional revision procedures on Ms. Dalien during 2005 and 2006.Blinding BungeeJust before all this happened, and--importantly for our story--unbeknownst to Ms. Dalien, Dr. Jackson was having issues with a bungee cord. Dr. Jackson went into mortal combat with the killer cord in July 1999.The bungee cord won.Dr. Jackson received surgery on his eye, and took over a month off from his practice. In July 2006, Dr. Jackson reported additional changes in his vision. He retired in October 2006 after unsuccessful surgery.Citing her allegedly unsuccessful surgeries, Ms. Dalien sued the good doctor twice. In one suit, Ms. Dalien argued negligent medical malpractice in the botched boob job.In her second civil action, Ms. Dalien sued under Washington States Consumer Protection Act (CPA). Ms. Dalien argued, among other things, that Dr. Jackson violated the law by failing to disclose his eye injury.Cow Bone LawDr. Jackson argued that the nondisclosure of his eye condition did not occur in trade or commerce and that any alleged professional malpractice or negligence was exempt from the CPA.Ms. Dalien countered that the nondisclosure of the eye condition was, in fact, done in trade or commerce because Dr. Jackson solicited and retained patients by failing to disclose this condition.In siding with Dr. Jackson, Washington State''s Court of Appeals cited the Evergreen State''s jurisprudence on cow bone disclosure and the case of Michel v. Mosquera-Lacy.In Michel, Mystie Michel sought treatment from Lucy Mosquera-Lacy, a periodontist employed by Bright Now! Dental, Inc., and the doctor said Ms. Michel needed a bone graft.When completing her pre-procedure paperwork, Ms. Michel was given the choice of human bone, cow bone, or synthetic bone for her graft. Stating she could not fathom the thought of having animal parts in her body, Ms. Michel declined the opportunity to get authentic cow bone.Well, unfortunately for Ms. Michel, supplies were running low in the dental office that day.When Dr. Mosquera-Lacy ran out of human bone, she finished the job with cow bone.Although the dentist claimed she merely finished up with cow bone--and that cow constituted no more than 10 percent of the graft--Ms. Michel said she now had a McImplant with the doctor having implanted a cow bone in her mouth.Whatever damages or urges to graze on her front lawn Ms. Michel may have experienced, her case wasn''t actionable under the Consumer Protection Act, the Washington Supreme Court held, because the use of cow bone was not an entrepreneurial activity in trade or commerce."Michael failed to show that Dr. Mosquera-Lacy''s use of cow bone is entrepreneurial. It does not relate to billing or obtaining and retaining patients. It simply relates to Dr. Mosquera-Lacy''s judgment and treatment of a patient. There is no evidence that cow bone was used to increase profits or the number of patients. When the supply of human bone ran out during the procedure, Dr. Mosquera-Lacy used her judgment and skills as a periodontist to finish the procedure. This is not actionable under the CPA," the court said.Bovine Bones and BungeesFollowing the Washington Supreme Court''s holding in Michel, the Washington Court of Appeals held in Dalien v. Jackson that Dr. Jackson''s nondisclosure of his eye condition was also an activity that fell outside the scope of Washington''s Consumer Protection Act. Thus, the court declined to certify her class action, and it affirmed a trial court''s dismissal of her case."As in Michel, Dalien has failed to show that Dr. Jackson''s nondisclosure of his eye injury is entrepreneurial. Dr. Jackson''s nondisclosure does not relate to Dr. Jackson''s billing or obtaining and retaining patients. Dalien has presented no evidence that Dr. Jackson represented that he had better vision than his competitors or somehow relied on his vision to promote his business," Judge Russell Hartman wrote for the court.However, the court didn''t say Ms. Dalien didn''t have a case--just that she didnt have a case under the CPA. Referencing her other suit, the court said, "To the extent that Dr. Jackson''s eye injury may have affected his ability to examine, diagnose, treat, or care for his patients, that question is actionable under the negligence theory, which Dalien is pursuing in her original lawsuit."The lesson of this week''s Case of the Week? If you want to sue under Washington''s Consumer Protection Act, make sure they advertise their excellent vision allows them to see your head before they implant a cow bone in it.____________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/05/law-cow-bones-and-bungees#ixzz1Ll8lzZ00May 1, 2011The Law of Bait Car JournalismDavid Broder, Edward R. Murrow, William F. Buckley Jr., Walter Cronkite, and now Bait Car?As the old Sesame Street song said, it would appear that one of these things just doesn''t belong here. Well, that''s not what the producers of the television show, Bait Car, say. They argue their show is real journalism, and--in an attempt to avoid producing evidence in a California court proceeding--they say their photographers are journalists. In recognition of this creative legal argument, their case gets to be our Case of the Week.What is a Journalist?The proliferation of new media sources has created a novel question: Just what is a journalist? Must one possess government-issued press credentials, sending shivers down the spines of First Amendment advocates? How about a requirement that you earn your living from journalism? Perhaps there should be a requirement that at least your Aunt Betsy actually read what you write?This question has taken on real legal significance as the U.S. Congress and many states have tried to implement so-called reporters'' shield laws. These laws attempt to protect reporters and their confidential sources by shielding confidential information from disclosure to courts and third parties.Although there has been substantial progress, a federal shield law has not yet passed. However, 40 states and the District of Columbia have shield laws, with many states enacting them after what some argued were Bush administration abuses, prosecutorial attacks on the press, and the prosecution of New York Times reporter Judith Miller.Some Republican lawmakers cited national security concerns with reporters'' shield legislation, and others had a more fundamental issue: How do you go about deciding which writers get to be journalists in a New Media world vs. Old Media world?Many hipsters sipping lattes at Starbucks like to bash so-called Old Media. As they iPad away their afternoons, bowing before the altar of New Media, they mock institutions such as The Wall Street Journal as the old media of their grandparents, and--bless their little black turtlenecks and Birkenstocks--they weren''t fooled by Rupert Murdoch''s purchase of Myspace. Silly, Rupert, New Media is for hip kids.But, the beautiful world of blogging Brown alumni opining on global warming and Maya Angelous contributions to literature while their conservative brethren blog on banks and hedge funds may be in for a shock to its modern sensibilities. There may be unwanted guests at this post-modern, online clambake, and it may be a sign of things to come.Bait Car as New MediaThe folks at truTV, that network of cop shows that used to be Court TV, have come up with a new show called, Bait Car. In Bait Car, the producers work with local police to place an unlocked car with keys in the ignition out on the street. Its the bait for would-be car thieves. Get it, bait, car?Many unsuspecting citizens, including Joseph Bullard, took the bait.Or did he?In the case of People v. Bullard in the Superior Court of California, San Francisco County, Mr. Bullard argued that he was merely being a good citizen, moving the Bait Car out of its illegal parking spot.He also argued selective prosecution. Mr. Bullard, a gentleman who enjoys cross-dressing, argued it was no coincidence that the unholy trinity of producers, police, and prosecutors arranged for the Bait Car to be placed outside Divas, a well-known, somewhat risque San Francisco transgendered club. Police countered that they just picked an area known for car theft.To prove Mr. Bullard''s Good Samaritan claim, his legal counsel wanted to see the tapes of the filming from KKI Productions, the producers of the San Francisco episodes of Bait Car. Not unlike Judge John Sirica sending an order to the Nixon White House, Judge Gerardo Sandoval ordered KKI to turn over the tapes.Not so fast, said KKI. Arguing that Bait Car was journalism and that the intrepid Bait Car photographers were, in fact, journalists and so under California''s reporters shield law, KKI refused.Judge Sandoval wasn''t buying it. He rejected KKI''s reporters shield argument, and demanded the tapes.Funny thing. You may have laughed at Mr. Bullard''s "I was only helping by moving the car" argument, but prosecutors dropped the charges against Mr. Bullard.Future of Journalism?Bait Car''s producers were working with prosecutors, turning over their tapes to the district attorney''s office, and that cooperation with cops was fatal to their legal argument, according to Judge Sandoval and legal journalism experts."You can''t have it both ways. You can''t cooperate with one side and not the other," said Lucy Dalglish, Executive Director of the Reporters Committee for Freedom of the Press."You can make a very strong argument that the cooperation with one side is a waiver of the privilege," Ms. Dalglish added.People v. Bullard does not decide the law on the contentious issue of who gets to be a reporter in the eyes of the law--although it does put Californians on notice that, if youre in cahoots with the cops, you probably don''t get to be one, at least for reporters shield purposes.The case also illustrates that the cozy little blogging world at Starbucks and beyond is also in the midst of a culture shift. The latter day hipsters may have make room on the Starbucks sofa for Bait Car journalists, Dog the Bounty Hunter, Big Brian the Fortune Seller, and the zany, fun-loving staffs of Ma''s Roadhouse, Lizard Lick Towing, and Hardcore Pawn.Yes, the Fourth Estate is becoming a very big tent in every respect imaginable...and in some not so imaginable.________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/04/law-bait-car-journalism#ixzz1LCFs9nEyApril 24, 2011The Law of Gwen Stefani AvatarsAt the time of this week''s legal tale, Gwen Stefani was a big, giant rock star, and Activision Publishing''s Band Hero videogame series was extremely popular. Combine the two - the theory went - and you would have what one of those MBA-types might call, synergy.Activision and Ms. Stefani thought so...until they ended up in court.This week''s Case of the Week illustrates the legal principle of the right of publicity. It also puts us on notice with the following legal poetry: Make Gwen Stefani a dude, and you''re gonna get sued.California Dreamin''In the 1990s, Gwen Stefani and Activision were both living the Southern California dream. Ms. Stefani and her Orange County band, No Doubt, achieved critical and commercial success, including Grammy nominations and huge recording contracts, while hitting the top of the charts with their 1995 single, Don''t Speak.Meanwhile, the friendly folks at Activision were building a videogame empire in Santa Monica with hit games such as MechWarrior 2: 31st Century Combat and Civilization: Call to Power. They also made some money off a game series based on the adventures of skateboarder Tony Hawk.Entering the 21st Century, one of Activision''s biggest games was its Guitar Hero series, which basically allows players to engage in computer-assisted air guitar. Band Hero was a similar, spin-off production.One of Band Hero''s features allowed players to create avatars based on real life rockers.Thinking it would be just nifty to have No Doubt avatars in the game - or at least thinking that it would be just nifty to have some of Activision''s cash -- No Doubt executed its Professional Services and Character Licensing Agreement with Activision, allowing the gamemaker to create avatars -- or computerized characters -- based on the band, and use them in Band Hero.Gwen is not a dudeMuch to their horror, the members of No Doubt learned about a special feature of Band Hero shortly before the product''s launch -- it was a special feature No Doubt may have worried pubescent punksters might manipulate.In their Agreement, Activision and No Doubt agreed Activision would license only a limited number of No Doubt songs for use in the game. However, that provision failed to consider another potential use of Band Hero.When players reached a certain level of the game, Band Hero allowed them to unlock their avatars, changing their song selection and personal characteristics.For instance, Activision licensed only a few No Doubt songs, but if Little Johnny were proficient enough in Band Hero to get his avatar -- say, perhaps, a lasciviously alluring Ms. Stefani -- to reach Level Nine of Band Hero, he could unlock her and free her from the bondage of her current condition, in every way, including gender.No Doubt was most displeased to discover that, once your Gwen Stafani avatar were unlocked, not only could Avatar Gwen be singing Janet Jackson, she could also be singing Tito Jackson.You see, once unlocked, an avatar''s voice could be changed from male to female.Not surprisingly, Ms. Stefani and her bandmates were not excited about the prospect of having their voices replaced with the manly sounds of Boy George.Ska vs. SuitsCould Activision really use the twisted avatars without No Doubt''s permission?No Doubt didn''t think so, and the band sued Activision in California state court. In No Doubt v. Activision Publg, Inc., the band sued for injunctive relief and damages, arguing Activision had engaged in the unauthorized exploitation of No Doubt''s name and likeness.The band sued on several grounds, including Activision''s alleged violation of No Doubt''s right of publicity.The right of publicity gives an individual control over the commercial use of her name or likeness. About half the states have a statutory right of publicity and others protect the right of publicity as part of their right of privacy laws.There has been a movement to extend the right of publicity beyond death. Not surprisingly, this movement is led by the heirs of some very famous dead people, including the heirs of Marilyn Monroe.California is one of those states with a codified right to publicity, contained in section 3344 of the California Civil Code.However, Activision countered that No Doubt''s right of publicity claim was barred as a matter of law because Activision''s actions on the avatars constituted constitutionally protected activity under the First Amendment.A Los Angeles Superior Court judge denied Activision''s motion to strike No Doubt''s complaint, and Activision appealed to California''s Second District Court of Appeal.Citing Comedy III Prods., Inc. v. Gary Saderup, Inc., the appellate court applied the transformative use test, a method to determine whether a use of a likeness was transformed from something more than a mere impersonation.The appellate court sided with No Doubt and the trial court. The court ruled that a transgendered avatar did not qualify as a transformative use. Thus, the appellate court held, the First Amendment did not excuse Activision''s alleged violation of its right to publicity."Nothing in the creative elements of the Band Hero elevates the depictions of No Doubt to something more than conventional, more or less fungible, images of its members that No Doubt should have the right to control and exploit. Thus, the trial court did not err in denying Activision''s motion to strike the right of publicity claim based on Activision''s assertion of a First Amendment defense," Judge Thomas Willhite Jr., wrote for the court,The court compared and contrasted Ms. Stefani''s avatar with the image in another case involving a Sega videogame and the former lead singer of Dee-Light, Kirby v. Sega of Am., in holding Avatar Stefani was not a transformative use. The First Amendment may be powerful, but -- at least in this Case of the Week -- it provides no constitutional protection for a Gwen Stefani avatar in a Boy George voice singing, Do You Really Want to Hurt Me?_________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/04/law-gwen-stefani-avatars-band-hero-No-Doubt-v-Activision-Publ-Inc#ixzz1KUS9gVwHApril 17, 2011The Law of Urinal TrademarksTrademarks and the legal disputes involving them may be the most entertaining area of intellectual property law, and a recent Pennsylvania federal court case illustrates just how entertaining trademark fights can be. You might think this fight over the name, "Pint," was a beer dispute. You would be wrong.This week''s Case of the Week examines what happens when two urinal manufactures get into a legal dispute over the names of their products.Pint of Yellow LiquidThe urinal and its bathroom cousin, the toilet, use a lot of water. As people have become more concerned about the environment, manufactures have joined the party, developing so-called green products, and urinal makers are no exception. After all, no self-respecting urinal manufacturer wants to be known as a truck stop eco-terrorist.Among the leaders in the urinal market are Zurn Industries and Sloan Valve Co. Both Zurn and Sloan wanted to help save the planet by making eco-friendly urinals.Zurn developed a urinal Mother Nature would love and named it, The Pint. The U.S. Patent and Trademark Office awarded Zurn the United States Trademark Registration No. 3,389,517 for The Pint, part of Zurn''s EcoVantage line of environmentally friendly "fractional flush" urinals. They''re called fractional flush because they use a fraction of the water regular urinals use when you flush them.Not to be outdone, the nature-loving folks at Sloan came out with their own environmentally sound urinal, the Sloan 1 Pint Urinal System.Not unlike a fraternity pledge spotting someone swiping his pint of Guinness from the bar, lawyers for Zurn swung into action.Urinating ContestAfter noticing a Sloan press release for the Sloan 1 Pint Urinal System on the website, greenlodgingnews.com, Zurn''s lawyers sent Sloan a cease and desist letter, arguing Sloan''s name infringed on Zurn''s registered trademark for The Pint. Zurn demanded that Sloan stop marketing its allegedly infringing urinal with "pint" in its name.In an apparent attempt to maintain peace and harmony in the urinal world, Sloan changed the name of its urinal from the "Sloan 1 Pint Urinal System" to the "Sloan Pint Urinal System."It was a nice try, but Zurn was unsatisfied. Simply deleting the numeral, "1," from the name wasnt enough. Not unlike Carrie Nation on a bar raid, Zurn wanted the Pint the h*ll out of there.Sloan refused, and Zurn''s trademark lawyers did what it takes to become the Case of the Week. They sued.In its case, Zurco, Inc. v. Sloan Valve Co., filed in the U.S. District Court for the Western District of Pennsylvania, Zurn argued Sloan''s use of its name violated the federal Trademark Act of 1946, known commonly as the Lanham Act. Specifically, Zurn argued that Sloan''s name caused a likelihood of confusion among potential customers.Sloan countered that -- despite Zurn''s federal trademark registration --The Pint was not a legally protectable trademark for a urinal because the mark was generic, a trademark legal term meaning the name is a common, general term with no secondary meaning.Sloan argued that pint was merely an identification of a type of urinal -- one that uses one pint of water when flushed. Thus, Sloan argued, urinal purchasers would associate the term, pint, with the flush volume of the urinal, not the maker of the urinal, Zurn.In attempting to decide the dispute between the fighting flushers, the federal court applied the so-called primary significance test, used in many cases, including A.J. Canfield Co. v. Honickman. Under the primary significance test, the court determines whether the primary significance of a term in the minds of the consuming public is the product or the producer.The court illustrated the difference by citing E.T. Browne Drug Co. v. Cococare Products, Inc., where the court made the distinction that cola was generic because it described a product, but Pepsi-Cola is not generic because it describes the producer.Zurn disputed the generic label by noting that, in the toilet and urinal industry, flush volumes are described -- not in pints -- but with the terms, gallons per flush (GPF) and liters per flush (LPF). In fact, Zurn claimed the use of gallon and liter by those other wasteful water-hogs in the toilet and urinal industry was precisely why it chose the unique term, pint.However, Sloan countered that pint had become an industry standard, noting that American Standard has used pint and 1 point since 2008, Mansfield Plumbing Products has used 1-pint for its Brevity line of urinals, and Caroma USA had used one pint for its Cube Ultra line of urinals for two years.Unfortunately for Sloan, the court noted that none of those urinal craftsmen had used the term before Zurn introduced the Pint in 2007. In addition, Zurn argued it had been diligent in sending cease and desist letters to the allegedly infringing urinal producers, a requirement for protection under trademark law.To Be ContinuedIn denying motions for summary judgment on most issues, the court held that there were genuine issues of material fact as to whether The Pint was generic. As a result, the case will move forward, and more evidence about urinals and what people call them can enter the hallowed halls of American jurisprudence.________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/04/law-urinal-trademarks#ixzz1K9cmh600April 10, 2011The Law of Chicken HeadsEmotional injuries and related damages may be one of the most contentious areas of the law, especially when -- as in thisweek''s Case of the Week -- that emotional injury is based on an employer''s forcing a worker to wear a chicken head mask in order to get medical benefits. Yes, this week, we go to Massachusetts to bring you the law of chicken head damages.Poultry ProblemsKaren Cappello worked full-time for Cricket Productions, where she processed orders. Because she was a full-time employee, she asked her boss, Victor Grillo Jr., for medical coverage.Mr. Grillo was very happy to give Ms. Cappello the medical coverage she desired, but it seems there was a catch.Mr. Grillo said Ms. Cappello could have the medical insurance only if she wore a chicken head mask."No head, no payment," Mr. Grillo wrote in an e-mail.We''re not making this up. We couldn''t come up with stuff this good.Even with major medical and hospitalization coverage for her young daughter on the line, Ms. Cappello declined to don the chicken head, which was part of a complete chicken costume kept in the office. You see, according to court papers, the employees at Cricket Productions considered themselves a fun-loving group that often socialized after hours.Apparently, none of the production place''s playful pranksters thought there was anything odd about making a session in the chicken head a prerequisite to health coverage.Ms. Cappello did.Saying she became too depressed to work as a result of the alleged harassment, Ms. Cappello sought medical attention and claimed she was unable to work.Of course, this is the Case of the Week, so you know what happens next.Colonel Sanders or Jack Daniels?Ms. Cappello decided to file a claim for her alleged injuries, and an administrative legal action ensued. Cricket carried no workers compensation coverage, but an administrative law judge held that, because Cricket was doing the business of DTR Advertising, Inc., DTR''s insurer, The Hartford Insurance Co., was liable for Ms. Cappello''s claim.Based on the opinion of her psychiatrist, Mark Cutler, Ms. Cappello argued Mr. Grillo''s alleged chicken head harassment was the predominant contributing cause of her adjustment disorder and major depressive disorder. The administrative law judge agreed and held for Ms. Cappello, but The Hartford appealed, arguing the chicken head incident was not the predominant contributing cause of Ms. Cappello''s alleged injuries.Hartford argued there could be other potential causes for the alleged injuries, and -- on appeal to the Commonwealth of Massachusetts Department of Industrial Accidents in the case of Cappello v. DTR Advertising, Inc. -- the judges noted that Ms. Cappello had received previous psychiatric treatment for issues related to a divorce and an alcohol-dependent husband.Ms. Cappello rejected the notion that marital warfare or her husband''s close, personal relationship with Jack Daniels and Johnnie Walker caused her injuries.It was all about that chicken head.Foul fowl?Because of her preoccupation with the perceived harassment at work and her disbelief that she was being asked to do what her employer asked her to do, which she perceived as very humiliating, she has been unable to return to any work for which she is reasonably trained by virtue of her education and job experience, Ms. Cappello''s psychiatrist told the administrative law judges.In a legal ruling sure to shock the San Diego Chicken, Mardi Gras revelers, and others who actually enjoy wearing chicken head masks, the judges sided with Ms. Cappello.Rejecting the insurer''s argument that there were other causes for Ms. Cappellos psychiatric issues, the judges ruled Ms. Cappello had shown those problems were not the cause of her present injuries. Although the judges conceded she had past psychiatric problems, they noted she had not experienced her present symptoms until the chicken head incident.The judges held that Dr. Cutler''s medical opinion satisfied the Massachusetts standard for predominant contributing cause of injuries established in the Massachusetts Appeals Court decision, May''s Case, and the Massachusetts Supreme Judicial Court decision, Robinson''s Case.In addition, citing Bouras v. Salem Five Cents Savings Bank, the judges held that, because Dr. Cutler''s opinion satisfied the predominant contributing cause standard, the chicken head incident was the only legal cause of her injuries."Because the doctor''s opinion effectively ruled out the previous stressors in the employee''s life as causes of her emotional disability, his opinion can be understood to implicate the events at Cricket Productions as the only cause," the judges wrote.The Massachusetts case of the chicken head was remanded to the lower judge on additional claims Ms. Cappello made, but she was victorious on this day...so was her lawyer.For their efforts on behalf of their client and for furthering the jurisprudence of chicken heads in the Commonwealth of Massachusetts, the judges awarded Ms. Cappello''s lawyer $1,488.30 in legal fees.__________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/04/law-chicken-heads#ixzz1J7TcDYNfApril 1, 2011The Law of April Fools'' JokesFor our April Fools'' Day edition of the Case of the Week, we visit the California Court of Appeal, which supplies us with a case touching on constitutional law, contracts, defamation, and, of course, the law of April Fools'' jokes. Not surprisingly, our case involves Sasha Baron Cohen, known popularly as Borat and Ali G.A 2004 episode of Mr. Cohen''s British television show got his network into a bit of trouble, and it had to pay the alleged target of his jokes $90,000. When the infuriated supposed subject came back for more, it ended up in American court, raising the question: could a reasonable viewer take the show seriously, resulting in a judgment for defamation?The Art of AmendingOn a 1987 youth trip to Israel, Sasha Baron Cohen began a friendship with a woman known only as "Jane Doe" in court proceedings. The friends lost touch over the years, but Ms. Doe followed Mr. Cohen''s increasingly successful career as a comedian, and, apparently, Mr. Cohen never forgot Ms. Doe''s real name.On the Aug. 15, 2004, episode of Mr. Cohen''s television show, Da Ali G Show, Mr. Cohen interviewed the American author, Gore Vidal. Among the topics of conversation were the United States Constitution and the practice of amending it.Mr. Cohen asked Mr. Vidal if it were not sometimes better to get rid of something rather than amending it. As an example, Mr. Cohen referred to Ms. Doe. Using her real name and referring to her with a term also used to describe a female dog, he said Ms. Doe was always trying to amend herself by such means as highlighting her hair, adorning herself with tattoos, and shaving her private regions.Mr. Cohen said Ms. Doe''s amending was for naught because he dumped her after he impregnated her. (Ms. Doe denied her relationship with Mr. Cohen was ever romantic or sexual in nature.)Given what Mr. Cohen claimed were Ms. Doe''s unsuccessful attempts at amending herself, he reasoned that amending anything -- including the Constitution of the United States -- was ill-advised.With no apologies to Vidal Sassoon, the people of the Eastern Hemisphere, or George Washington, in his role as Ali G, Mr. Cohen went on to suggest that Mr. Vidal was an internationally famous hairstylist, that euthanasia was a means of exterminating the elderly in Asia, and that Denzel Washington resided at Mount Vernon.Ms. Doe was not amused.Costly ComedyDa Ali G Show was produced by Britain''s Channel Four Television Corp. and distributed in the United States by HBO. After complaints from Ms. Doe, HBO settled with her in 2004 for $40,000. As part of the settlement, HBO agreed to edit the episode so Ms. Doe''s name would be removed in any future broadcasts.Well, Ms. Doe''s fame -- or infamy, depending on ones perspective -- continued. When HBO presented the episode on Comcast, it left Ms. Doe''s name in the airing of the show, resulting in another settlement with Ms. Doe in 2006 with the same terms as the 2004 settlement, except this time Ms. Doe received an additional $50,000 payday.Nevertheless, viewers of Da Ali G Show had not heard the last of Ms. Doe.When a friend of Ms. Doe''s saw the unedited version -- that would be the one with Ms. Doe''s name -- on YouTube after the second settlement, he contacted her, and they discovered a viewer in Estonia had uploaded the clip from Finnish television, which had received the unedited version from Channel Four.No more settlements. Ms. Doe decided to take her battle to court.The Law of April Fools''Ms. Doe sued HBO and Mr. Cohen in California state court, and later added Channel Four as a defendant. She sued on multiple grounds, including libel, slander, breach of contract, invasion of privacy, and negligent infliction of emotional distress.Channel Four moved for summary judgment -- a legal ruling where one side wins the case before it even gets to trial -- arguing, among other things, that no reasonable person could have understood Mr. Cohen''s statements as factual.The trial court sided with Channel Four."No reasonable person could consider the statements made by Ali G on the program to be factual. To the contrary, it is obvious that the Ali G character is absurd and all his statements are gibberish and intended as comedy. The actor, Sacha Baron Cohen, never strays from the Ali G character, who is dressed in a ridiculous outfit and speaks in an exaggerated manner of a rap artist. Ali G''s statements are similarly absurd," the trial court said.Ms. Doe appealed, but she fared no better with the Californi''s Second District Court of Appeal in Doe v. Channel Four Television Corp. Citing cases involving comedian Robin Williams and an April Fools'' joke, the appellate court agreed that no reasonable person could have taken Mr. Cohen seriously. Thus, the court held, there was no defamation.In the case involving Robin Williams, Polygram Records, Inc. v. Superior Court, California''s Third District Court of Appeal held there was no defamation when Mr. Williams did a skit where a wine distributor complained that there was white wine and red wine, but no black wine.The court noted Mr. Williams said the so-called black wine was tough enough to be advertised by Mean Joe Green, was black in color, tasted like urine, and went with anything it damn well pleased. The court added that no reasonable person could have taken Mr. Williams seriously and that to hold the skit defamatory would run afoul of the First Amendment.Likewise, in San Francisco Bay Guardian, Inc. v. Superior Court, California''s First District Court of Appeal held there was no defamation when, in its April Fools'' Day edition, the San Francisco Bay Guardian newspaper ran a fictitious letter from a landlord stating that he found his tenants who had undergone electroshock therapy where much more cooperative because no reasonable person would take the fake letter seriously.Today''s legal lesson is thateven if it involves an electroshocked tenant with shaved privates drinking black wineits tough to win a defamation action against a comedian.________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/03/law-april-fools-jokes#ixzz1ISyc57fbMarch 27, 2011The Law of Cantaloupes and Inflatable SharksHave you ever been really impressed by marketing displays constructed at your local store, where industrious employees create displays of commerce only slightly less impressive than the Taj Mahal?Well, Joyce Henderson may have felt that way before she broke her hip falling before a marketing temple of stacked cantaloupes at her local supermarket.Adding insult to injury, Ms. Henderson lost again in this week''s Case of the Week as the U.S. District Court for the Eastern District of Oklahoma grappled with the weighty issue of whether cantaloupes are the legal equivalent of inflatable sharks for premises liability purposes.Cantaloupes of DoomThe story of Henderson v. Harps Food Stores, Inc., began on a fine June day in 2009 when Ms. Henderson visited the Harps Food Store in Fort Gibson, Okla. Harps employees had created a display of cantaloupes, which was actually a giant octagon of wholesome, fruity goodness.Harps displayed the cantaloupes in large cardboard containers resting on a wooden pallet. The cardboard containers were roughly square in shape with the corners slightly recessed, forming the muskmelon octagon.Ms. Henderson admitted spotting the pallet beneath the pile, and even considered the pesky pallets potential as a pitfall. Nevertheless, she plowed ahead.While examining one of the succulently sweet cantaloupes, Ms. Henderson''s foot caught on the pallet, and she hurt her hip hitting Harps'' hard floor.The stage was now set for Ms. Henderson and Harps to debate the jurisprudence of cantaloupes vis-a-vis inflatable sharks.Ms. Henderson sued Harps in Oklahoma state court in a tort action, alleging Harps was negligent in its dangerous display of the killer cantaloupes and in its negligent failure to warn customers of its alleged fruity booby trap.Harps removed the case to federal court and filed a motion for summary judgment, arguing it was not liable because the exposed cantaloupe pallet was an open and obvious condition.Generally, under Oklahoma premises liability law, which applied even though the case was in federal court, businesses are not liable for damages sustained from these so-called open and obvious conditions. However, there is a possible exception in the law for conditions or defects visible but unseen by a plaintiff.Ms. Henderson and Harps battled over the case law. For instance, both parties cited the Oklahoma Supreme Court case of Phelps v. Hotel Mgmt., Inc., where an unsuspecting patron hit her head on a decorative glass bowl that protruded into the seating area of a hotel lobby.Sure, the thing was open and obvious in the literal sense, but the court in Phelps held a reasonably prudent person might not have noticed the risk of injury from the protrusion of funky art into the seating area and -- for the condition to be open and obvious as a matter of law -- the potential for injury must also be noticeable.The court in Henderson rejected Ms. Henderson''s reliance on Phelps and another court decision, Zagal v. Truckstops Corp. of Am., a case where things went horribly awry in the aisle of a truck stop. The court held those cases did not apply to Ms. Henderson''s case of the killer cantaloupes because -- not only did Ms. Henderson see the open and obvious collection of cantaloupes -- she knew it posed possible danger.However, all hope was not lost for Ms. Henderson. It was time for her lawyers to launch a legal shark attack.But could an inflatable shark really save Ms. Henderson''s case?Shark TaleMs. Henderson''s attorneys cited the Oklahoma Court of Civil Appeals case of Hansen v. Academy, Ltd., where Kimberly Hansen, an unsuspecting customer, was apparently in awe of a large inflatable shark that was part of a boat display on the sidewalk in front of an Academy sporting goods store.So mesmerized by the inflatable shark was Ms. Hansen that she proceeded to walk straight into the tongue of the boat, causing her to trip and break both her arms. Ms. Hansen sued Academy, but a trial court ruled for the sporting goods store, holding that the boat tongue was an open and obvious condition.But, remember...Jaws had a sequel.Ms. Hansen appealed, and the intermediate appellate court ruled for her. Noting an Academy employee testified the purpose of the inflatable shark was to get people''s attention, the appellate court reversed the trial court''s grant of summary judgment to Academy, holding that, although the boat tongue was visible, the plastic, air-filled fish of terror changed the legal outcome."The evidence certainly raised a question of fact as to whether Academy intended for its customers to devote their attention to the merchandise on display rather than to the sidewalk," the appellate court held in Hansen. Unfortunately for Ms. Henderson, U.S. District Judge James Payne wasn''t buying the shark argument in her case.Noting that arrows on the cantaloupe boxes actually pointed to exposed pallet on cantaloupe display, Judge Payne held the inflatable shark case didn''t apply."Because the cantaloupe display actually drew attention to the alleged hazardous condition, the Hansen case is distinguishable and does not provide an exception to the open and obvious rule," the judge wrote.The lesson of our Case of the Week? Apparently, at least in Oklahoma, a cornucopia of cantaloupes provides no exception to the open and obvious rule...but, an inflatable shark does._______________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/03/law-cantaloupes-and-inflatable-sharks#ixzz1HonZsGj9March 13, 2011The Sixth Amendment and another Texas Chicken Ranchby David HorriganIn the film adaptation of the Broadway musical, The Best Little Whorehouse in Texas, Burt Reynolds, playing a Texas sheriff, falls in love with Dolly Parton, portraying the good-natured, warm-hearted proprietor of a local brothel. That theatrical house of ill-repute was based on a real life bordello known as the La Grange Chicken Ranch.Although many local residents supported the Chicken Ranch -- and the entertainment and tax dollars it brought to Greater La Grange -- its closing involved law enforcement at the highest levels of Texas government.For those whove always wanted yet another sequel, we have one for you. It doesn''t have Ms. Parton, Mr. Reynolds...or even Dom DeLuise. What is does have is an intriguing question of constitutional law, which is why it gets to be our Case of the Week.Texas cathouse jurisprudence now considers: Does memory loss render a witness absent for purposes of the Confrontation Clause of the Sixth Amendment to the United States Constitution?Before we get to any of that legal stuff in the case of Woodall v. Texas, let''s take a look at the story of the latest little whorehouse in Texas.Naughty HaremPhyllis Anne Woodall may or may not have a lot in common with Dolly Parton''s Best Little Whorehouse in Texas character, Miss Mona Stangley, but Texas prosecutors alleged they were in the same profession.Ms. Woodall was the co-owner and operator of the Naked Harem, an El Paso, Tex., establishment some would refer to euphemistically as a "gentlemen''s club." Ms. Woodall and her business partner, Jeannie Coutta, ran a strip joint empire, El Paso Cosmopolitan, which not only operated the Naked Harem, but also its sibling club, the El Paso Cosmopolitan Topless Show Bar.Sadly for the ladies and their clients, those Texas prosecutors thought they were having a little too much fun.After repeated incidents of alleged prostitution at the Naked Harem, authorities arrested the ladies, charging Ms. Woodall with aggravated promotion of prostitution and engaging in organized criminal activity.At trial, prosecutors called dancers who testified prostitution was plentiful at the club, while Naked Harem loyalists testifying for Ms. Woodall cited Naked Harem policy forbidding dancers from having sex with its gentile clientele. Ms. Woodall then called a dancer, Lucia Pinedo, to testify.It was a bad move.Forget Me NotMs. Pinedo testified she sustained memory loss after an automobile accident and that she could not remember her prior testimony before a grand jury -- nor could she remember even being part of the Naked Harem. However, when Ms. Pinedo didn''t show up for a subsequent day of the trial, prosecutors -- over Ms. Woodall''s objections -- read her grand jury testimony for the jury.Before the grand jury, Ms. Pinedo had testified she had sex with patrons many times in the club''s private rooms, and -- in an unfortunate turn of events for Ms. Woodall -- Ms. Pinedo testified that, although she lied about her age to Naked Harem staffers, she was only 15-years-old when she began dancing at the club. To make matters worse, Ms. Pinedo contradicted the testimony of one of Ms. Woodall''s managers who said Ms. Pinedo showed a birth certificate as part of her identification upon being hired.Instead, in a moment worthy of X-rated versions of High School Musical or Glee, Ms. Pinedo testified her identification to get her job as an exotic entertainer was not her birth certificate, but was, in fact, her high school ID card.As they did with the La Grange Chicken Ranch, the good people of Texas may turn the other cheek when it was just a bunch of adults having consenting, albeit illegal, fun...prostitution by 15-year-olds is a very different story.After prosecutors made numerous references to Ms. Pinedo''s impressionable youth during closing arguments, the jury sentenced Ms. Woodall to 16 years in prison.Ms. Woodall appealed, arguing, among other things, that introducing Ms. Pinedo''s grand jury testimony was a violation of Ms. Woodall''s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution because Ms. Pindeo''s memory loss prevented Ms. Woodall from being able to cross-examine her.Constitutional ConfrontationA Texas intermediate appellate court reversed the trial court and sided with Ms. Woodall, holding that allowing prosecutors to read Ms. Pinedo''s grand jury testimony to jurors despite her memory loss violated Ms. Woodall''s Sixth Amendment Rights because the State used out-of-court testimonial statements [the grand jury testimony] about which the declarant [Ms. Pinedo] could not be cross-examined due to memory loss.The state argued also that, because Ms. Woodall refused the trial judge''s offer to issue a so-called writ of attachment forcing Ms. Pinedo to return to continue her testimony, Ms. Woodall was precluded from arguing Ms. Pinedo was absent for Confrontation Clause purposes.However, Ms. Woodall argued that Ms. Pinedo''s memory loss made recalling her futile, and the intermediate appellate court agreed."She did not remember giving the grand jury statement, nor could she remember working at the Naked Harem. A writ of attachment would not have changed Pinedo from an absent witness into a witness available for trial and examination. Her undisputed testimony about the car accident and resulting memory loss established that she was unavailable as a witness regarding the relevant subject matter," the intermediate appellate court held.Yet, in another legal twist, on Mar. 2, the Texas Court of Criminal Appeals, the states highest court for criminal matters, reversed the intermediate appellate court on both issues.First, citing three U.S. Supreme Court decisions, California v. Green, Delaware v. Fensterer, and United States v. Owens, the Texas high court rejected the argument that a Confrontation Clause violation could be based on witness memory loss.Second, Ms. Pinedo''s memory loss notwithstanding, the court held Ms. Woodall''s failure to take the trial judge up on the offer to haul Ms. Pinedo back into court was fatal to her Confrontation Clause argument. The court said Ms. Woodard induced the alleged error of which she now complains, and she may not argue on appeal that her confrontation rights were violated.In the movie, Burt and Dolly went off happily into the sunset. It doesn''t look as though thats happening here._________________________Read more at the Washington Examiner: http://washingtonexaminer.com/blogs/opinion-zone/2011/03/sixth-amendment-and-another-texas-chicken-ranch#ixzz1HaDgOkKeMarch 6, 2011Labor, Lassie, and the LawIts been a tough week for the First Amendment and labor unions, but perhaps not for puppies.In this space, we attempt to look at the lighter side of the law, but there''s just nothing funny about a Marine making the ultimate sacrifice for his country or alleged followers of Jesus thinking the Messiah wants them desecrating other people''s religious services. However, Americas courts never let us down when we need comic relief, and free speech cases are no exceptionThis week, California''s Second District Court of Appeal ruled on a particularly perplexing constitutional quandary. It''s a question not yet addressed in the current labor unrest in Wisconsin:Does labor union speech enjoy greater constitutional protection than speech about puppies?Well give you the court''s answer in Best Friends Animal Socy v. Macherich Westside Pavilion Prop., LLC, in a moment, but let''s start off by saying that -- not unlike fallen heroes and violated funerals -- theres nothing funny about animal abuse or unfair labor practices. Nevertheless, what we''ve got here is an appellate court of law weighing the constitutional rights of terriers versus Teamsters.Puppies and PicketersThe Best Friends Animal Society does good work. Not only does the Utah-based organization have adoption programs for dogs and cats, it has programs for parrots and pigs as well. In addition, it operates an animal sanctuary, and its Pup My Ride program transports dogs from overpopulated areas to places where they are more likely to find homes.Best Friends also operates the Puppies Aren''t Products campaign with the stated goals of fighting against so-called puppy mills and irresponsible breeding.One of the weapons in Puppies Arent Products arsenal is the staging of protests at shopping malls where the evil puppy mills alleged middle men -- the pet shops -- attempt to sell their canine cargo.Although Puppies Arent Products bills its mission as a fight against the puppy mills, unlike more militant animal rights groups, Puppies Arent Products stresses the peaceful nature of its protests...a Gandhi for golden retrievers, if you will.Peaceful or not, one shopping center didn''t want to give the puppy protesters free rein over its establishment. When Puppies Arent Products targeted the Barkworks Pups & Stuff store at Los Angeles Westside Pavilion, the owners of the mall swung into action.Not unlike abortion protesters at a Democratic convention or anti-war protesters at a Republican convention, the puppy protesters were confined to undesirable areas -- in this case, mall space far away from Barkworks. Incidentally, Barkworks denies its dogs come from puppy mills, stating it takes great pride in having built a reputation of bringing healthy, happy puppies to loving families and homes.Look for the Union Label?Westside Pavilion had rules about when people could protest in its common areas. The rules applied to so-called noncommercial expressive activity, and covered various forms of expression, such as political and religious speech, soliciting for signatures on petitions, and the dissemination of noncommercial leaflets and fliers.The rules were what constitutional lawyers call content neutral, meaning the rules didnt vary depending on what a speaker was saying. There was just one catch.Labor unions got special treatment.The mall had special rules for qualified labor activity, which was defined, in part, as activity authorized by the National Labor Relations Act (NLRA) or applicable state labor laws.Non-labor expressive activity -- such as the puppy protest -- was limited to certain areas of the mall and was subject to certain blackout days, days when no protests were allowed, such as the busy business days of Valentines Day, Halloween, and the Christmas shopping season.In contrast, labor expressive activity had no blackout dates, and the workers'' expression could take place near the targeted, allegedly union-busting establishment.The litigating Lassie lawyers saw this distinction as the way to get the puppy protesters within pawsteps of the alleged villains at Barkworks.Collies in CourtBest Friends sued Westside Pavilion''s owners in California state court, arguing the mall''s restrictions violated the free speech provisions of article I, section 2 of the California Constitution. Specifically, Best Friends argued, among other things, that it was unconstitutional for the mall to give labor union protesters preferential treatment over the Puppies Arent Products protesters.Westside Pavilion countered that the restrictions passed constitutional muster and that the mall was forced to give labor union protesters special treatment in order to comply with state and federal labor law.The mall won the first round when California Superior Court Judge Linda Lefkowitz ruled against the puppy protesters, holding that, under the 1997 California appellate decision, Union of Needletrades, Indus. & Textile. Emp. v. Superior Court, the shopping mall was within its rights to limit the activities of the puppy protesters and that the NLRA and state law required the mall to make special accommodations for labor protesters.But, this dogfight wasnt over.Best Friends appealed and found a more fur-friendly tribunal in California''s Second District Court of Appeal. In a 3-0 decision on Mar. 2, the appellate court overturned Judge Lefkowitz, and ruled in favor of the puppy protesters.The appellate court rejected the holding of the case on which Judge Lefkowitz relied and instead followed two other California appellate decisions, H-CHH Associates. v. Citizens for Representative Government and Snatchko v. Westfield LLC, in holding the mall could not restrict the puppy protesters in the manner it sought, and it rejected the mall''s preferential treatment of labor protesters.The appellate court said the mall suggests that the law compels it to discriminate. But federal and state laws do not require shopping malls to give labor speech more access to common areas than political and other types of free speech.Celebrating its victory and the apparent end of Puppies Arent Products banishment to the dark corners of the mall where one wouldn''t expect to find Jennifer Grey, Best Friends issued a statement entitled, Nobody Puts Baby in a Corner.______________________________________________Read more at the Washington Examiner:http://washingtonexaminer.com/blogs/opinion-zone/2011/03/labor-lassie-and-law
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Twitter Dear Past, thank you for all the lessons. Dear Future, now I'm ready! It's that time of year again when we're caught somewhere between squeezing in all the work we want to achieve before the end of the year, and daring to think about winding down and having a bit of a break. Throw in the additional activities of Christmas shopping, prepping and partying and you find yourself in this weird mix of excitement and exhaustion. Before the year totally escapes you and you're either lying on a beach somewhere engrossed in the latest Liane Moriarty, or back in the office getting things done in the quiet emptiness, take a moment to reflect on the year just passing. It's good for you. In his brilliant TED Talk, The Happy Secret to Better Work, Shawn Anchor talks about how we cheat our brains of happiness by continually stretching the goalposts of what success is. With an ingrained formula of "If I work harder I'll be more successful, and if I'm more successful then I'll be happier" we put happiness at the other side of success and never get there because we always aim for more. Don't let this happen to you. Answer the questions below to give yourself a few minutes of reflection to recognise, acknowledge and appreciate yourself and your achievements. All of which are also critical components of a confident mindset. Question 1 - How have you been courageous this year? Come on, be honest with yourself. I won't accept 'I haven't' or 'I don't know'. I know you have been brave many times this year. Whether it's been putting your hand up for a new opportunity, going to a networking event, learning something new, asking for a pay rise, challenging an unfair decision, asking for help, dealing with a difficult person, quitting your job, seeking forgiveness, or any other uncomfortable scenario you've dealt with. When we allow ourselves to see courage we open up to more of the same. Every step of being courageous will help to build your confidence and capability. Allow yourself to see your brave. Question 2 - How have you grown this year? You have grown. Without a shadow of a doubt. If you weren't interested in growth you wouldn't be reading this now. Open up your awareness to how far you've come, even if it doesn't feel like you have. Take a few moments to reflect on your personal development journey this year. Perhaps you've had a fabulous 12 months learning and growing in a new role or adventure. Or maybe it's been a massively challenging year that you can't wait to move on from. Either way you will have grown, enormously. Question 3 - What are you grateful for about yourself? We all know about gratitude and the benefits of creating a positive mindset. That doesn't mean to say we do it. With this gratitude question focus specifically on what you're grateful for about yourself. We have so much pressure telling us how we should look, think and behave it can be hard to be who we truly are, our quirky, perfectly imperfect, natural, unique and amazing selves. Embrace it! Embrace the unique and quirky, it's what the world needs. What body parts are you thankful for? What character traits serve you well? What makes you who you are? Gratitude is the healthiest of all human emotions. The more you express gratitude for what you have, or who you are, the more likely you will have even more to express gratitude for. "The worst loneliness is not to be comfortable with yourself." – Mark Twain While we're on a roll why not ask yourself an additional question – What habits can I implement to be successful next year? Here's wishing you a rewarding reflection on your past year and a stimulating start to the new one! To your happiness and success! Lisa.