With no offense intended to all my NYC friends, of course.

Some tosser with the NYPD has asked the City Council to give the police the power to authorize people in New York City to possess environmental testing devices, and provide for criminal prosecution of persons possessing such equipment without permission.

Air quality meters, chemical sniffers, Geiger counters. It appears that the NYPD would even be licensing smoke detectors, radon test kits, and carbon monoxide monitors. And anyone merely possessing these things without permission could go to jail.

The justification for this invidious tidbit of legislation is the fear that unregulated test equipment might register false alarms, inciting panic.

The measure brought stiff, unexpected opposition at a Council hearing last week. Its proponent withdrew the bill for further review at the end of the meeting, so it is off the table for now. Unlike the Village Voice reporter, I do not think it will be back, despite the NYPD proponent’s assertions to the contrary. Considering that even the VV reporter notes that there have been no incidents of false-alarm-induced panic to justify the bill, I find it irresponsible of the VV reporter to write what he did in the last paragraph of the article.

I do not expect the legislation to go any further towards becoming law. I think it is too much of an invasion to be accepted by New Yorkers all at once. But if by some chance it does get enacted, it will indicate a substantial shift in the willingness of New Yorkers to accept nanny-city impositions.

As an aside, I carry a Cold War vintage Civil Defense personal dosimeter with me everywhere I go. A Bendix model CDV-138. Not because I am worried about my long-term radiation exposure, but because I find it interesting to track. And I’m a retro-tech fanboy.

Posted by Qwertz at 5:36pm on 28 Jan | 2 Comments

[E]ven more regrettable than the failure to either follow or unequivocally overrule the cited cases is the character of the “rule” which is now promulgated: the majority assert that henceforth “a statute or other rule of law will be characterized as substantive or procedural according to the nature of the problem for which a characterization must be made,” thus suggesting that the court will no longer be bound to consistent enforcement or uniform application of “a statue or other rule of law” but will instead apply one “rule” or another as the untrammeled whimsy of the majority may from time to time dictate, “according to the nature of the problem” as they view it in a given case. This concept of the majority strikes deeply at what has been our proud boast that ours was a government of laws rather than of men.

Grant v. McAuliffe, 264 P.2d 944 (CA 1953) (Schauer, J. dissenting).

Laws and rules often require characterization as one thing or another for various purposes. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), is a prime example. Erie requires Federal District Courts, sitting in diversity jurisdiction, to apply the substantive law of the states and the procedural law of the Federal courts. So it is sometimes (actually, quite often) necessary to characterize a particular rule as substantive or procedural.

The same is true in the traditional approach to conflict of laws. The traditional approach says that a court should apply its own procedural rules (including its own conflicts rules), while applying the substantive law of the state where the cause of action arose. The court must determine whether a particular law or rule is substantive or procedural in order to decide which one to apply.

In Grant, the plaintiffs were injured in an automobile collision with a guy named Pullen. Plaintiffs and Pullen were residents of California, but the accident occurred in Arizona.

Under the traditional approach to conflicts, Arizona law would apply to the case, no matter where Plaintiffs decided to bring it. Plaintiffs could have sued Pullen in California, and the California courts would apply the tort law of Arizona to the case, because the injury giving rise to the claim occurred in Arizona. This is called lex loci delicti - the law of the place of the delict (legal wrong).

Alas, woe and regret! Pullen died as a result of injuries sustained in the collision before Plaintiffs filed suit. Under the old punitive model of tort law, a claim arising out of a personal act died with the person. American tort law took a different route after splitting from British law, and became a compensatory system, designed to compensate the victim for the injury he sustained. So some states have statutes (or common-law rules) preventing the abatement of claims on the death of the tortfeasor.

California had such a statute. It allowed the estate of a dead tortfeasor to be sued for damages arising from the tort he committed before he died. Arizona, however, had determined that such claims should die with the tortfeasor.

So Plaintiffs sued Pullen’s estate (administered by McAuliffe) in California, asserting that Arizona tort law should govern the claim, but that California’s survival rule should apply. Unfortunately for Plaintiffs, California’s Supreme Court had already ruled that survival rules were substantive in a different situation. (In Cort v. Steen, 224 P.2d 723 (CA 1950), the court held that California’s statutory survival rule was substantive and therefore not to be applied retroactively to suits filed before it was enacted.) If survival rules are substantive, then Arizona’s survival rule should apply, not California’s. And if Arizona’s survival rule applies, then Plaintiffs have no case. It smelled of doom for Plaintiffs.

But on appeal to the California Supreme Court, Plaintiffs lucked out and Judge Traynor (known for inventing products liability nearly from whole cloth) wrote an opinion applying California’s survival rule. Explaining the conflict with the earlier precedent from Cort, Traynor wrote, “a statute or other rule of law will be characterized as substantive or procedural according to the nature of the problem for which a characterization must be made.” It is this rule with which Judge Schauer took such great issue.

I don’t really care whether survival rules are substantive or procedural, or whether tort claims should survive the death of the tortfeasor. Well, I do, but those are not the important issues here. Judge Schauer and I are both looking for consistency in the rule of law. Allowing compartmentalization of the concepts “substantive” and “procedural” on the basis of unnecessary or irrelevant distinctions allows the courts to use inappropriate means to affect the outcome of a case. Recall, if you will, Rand’s Razor: “Concepts are not to be multiplied beyond necessity.” Ayn Rand, Introduction to Objectivist Epistemology 96 (1990).

The only “reason” to characterize a law as procedural in one circumstance and substantive in another is because you want one outcome in one case and a different one in another. Judge Schauer had it right: Without proper conceptualization, the application of the law will be forever subject to “the untrammeled whimsy of the majority.”

Posted by Qwertz at 5:11pm on 28 Jan | No Comments

I went to visit Tailor today.

Excitement!

I decided to get a suit made. And some shirts. I had fun. I spent a *lot* of money. I sat there thumbing through hundreds of different cloths for suits and shirts. I chose a lightweight medium gray with a delicious texture for the suit, and four solid colors for the shirts. I’m not ready to graduate to stripy-ness yet.

Tailor is going to make the suit just how I want it. For one thing, it won’t have a breast pocket. Stupid, silly, pointless thing. So I got rid of it. Hooray! And I’ll finally get trousers that make me look as if I actually have a bum, instead of just slumping like a wet sack. And the armholes will be nice and not so fabulously deep, so I don’t look like a bat, flapping about pointlessly, whenever I gesticulate from the shoulder. If all goes according to plan, I won’t have to walk around with my elbows locked to my sides any more.

While getting measured, I confirmed that I am indeed abnormally tiny. My chest measure came out to 35½”, which simply cannot be had in an off-the-rack suit.

I got some shirts, too. All fairly standard. I got one in British khaki, and I wanted another one in olive drab, but they only had olive drab in a linen, which is simply unacceptable. I got a lovely blue that’s a tick darker than the typical blue you see in stores, a lovely textured gray (same texture as the suit, actually, only in a lighter shade), and one other thing that I can’t remember.

I didn’t go for French cuffs. I think they’re silly. And I also think they only work with white shirts, and I am white-averse. I do not own a white shirt, and I haven’t worn one in longer than I can remember. I think maybe to prom. Eight years ago.

I forwent a breast pocket on the shirts, too. I am so tiny that I worry that breast pockets will only make me look smaller, because they’re cut on a stock pattern that doesn’t change size with the shirt. And I never use them, so why have them?

The only thing was, while I was looking at cloth while Tailor was dealing with other customers, the radio was on. On some Christian station. Normally, I can tolerate by just tuning it out, but this was unlike any Christian station I have ever heard. It was FM, but had a format more like AM. It sounded like they were doing a live show like the “good old days” of radio theatre. The format was very “A Prairie Home Companion.” A short story here, an advertisement there. I think it was a children’s show.

One segment was particularly interesting. Announcer Guy was interviewing some shrimp. The first shrimp was a Pistol Shrimp, discussing its interesting snapping mechanism. He started by comparing his snapping claw to a handgun. How he cocks it back, like the hammer on a gun. How he snaps it and it makes powerful shock wave. How it scares off enemies, or can help him catch food. It sounded suspiciously pro-gun.

Now I have no problem with guns as such, but the circumlocutions made me uncomfortable. I mean, why is it necessary to hide a pro-gun message in a children’s story?

That wasn’t the worst of it, though. The next shrimp to be interviewed was an Angler Shrimp (which I cannot find in the Wikipedia). That is, a shrimp with really long antennae that it uses to lure food like a fly-fisher. The shrimp described its unique adaptation (but not as such) and pointed out how he is unlike any other kind of shrimp in the ocean. Naturally, the obvious conclusion is that God had made him just the way he was.

Isn’t the intelligence of the Great Designer glorious? Some people think all the thousands of different kinds of shrimp originally came from a single pair of shrimp. But that’s unscientific. The Great Designer created all the kinds of shrimp separately, and they will never reproduce beyond their own kind.

No shit.

It was nauseating. I had difficulty concentrating on the swatch books.

Tailor has never said anything even remotely religious to me. I think he might have had the station on without paying any attention to it. He was in the other room with other customers most of the time. Next time I’m in there, if the radio is on that station again, I might ask to change it. He’s polite, runs a nice business with competitive prices, and makes great suits, so I’m not inclined to take my business elsewhere. I cannot ascribe to him a belief in creationism, but even if I could, it doesn’t seem to affect his ability to make a fine suit.

Posted by Qwertz at 5:04pm on 26 Jan | No Comments

Spoilers, as always.

My sister and I went to see There Will Be Blood yesterday.

Upton Sinclair’s novel Oil!, on which the film is based, is little in evidence, thankfully. I do not enjoy Sinclair, because his narratives expect the reader to sympathize with his Socialist views. I am a miserable failure at sympathizing with Socialists.

I was worried that There Will Be Blood would be all anti-industrial in theme, and it mostly wasn’t. The first three acts are really quite good. Plainview is competent and knows it. He puts on a hard sell, but he doesn’t swindle people. He expects only what is coming to him. The villain, by contrast, is a perfectly loathsome, manipulative faith-healer con-man in whose ultimate destruction we delight.

The first three acts, like I said, are really quite good. The last two acts, starting when Plainview’s “brother” shows up, didn’t make any sense. Plainview’s devolution into drink and hate doesn’t make sense. There was no reason for him to kill the impostor, and there was nothing at all in the first three acts to suggest that kind of flaw. It was, I think, forced on the character by a filmmaker who didn’t completely understand what he was doing.

Act I has not one spoken word. It tells the story of Plainview’s start, and provides important background information on his relationship with his son. The score is most noticeable during Act I, too. Much of the score is awful. If you have ever seen the prologue to 2001: A Space Odyssey, you have an idea about how Act I felt.

(Aside: An even closer comparison is to the score to the “The Architect and The Apprentice” sequence in Matthew Barney’s Cremaster 3, but this sequence is not available on the commercially available Cremaster 3 DVD, and so you’ve probably never seen it. The DVD only has the “The Order” sequence. I have the score to Cremaster 3 on CD, if you want to borrow it. The part of which I am speaking is amelodic, atonal, arhythmic, aggressive, and altogether unpleasant.)

A lot of the score is like that, but sometimes it gets some structure and works out really well. The score during the accident at the well is still amelodic, but it gets a rhythmic quality that really drives home the anxiety of the scene. So the score wasn’t all bad, just mostly.

Throughout the film, Plainview is an atheist. He gives credit where credit is due - to the oil men who have the skill to extract great wealth from deep in the ground. Ely Sunday (the antagonist preacher-boy) continually presses Plainview to give credit to God. In Act IV, after Plainview has shot his impostor brother, he is blackmailed into allowing Ely to baptize him into the Church. The ritual is purely a vehicle for Ely’s revenge, and Plainview plays along in order to get an easement for his pipeline to cross the land of a holdout in Ely’s pocket. So Plainview professes that he is a sinner and abandoned his son. (This isn’t entirely true. After an accident at the well destroyed his son’s hearing, Plainview puts the boy on a train to San Francisco, to be enrolled in a school for the deaf. The boy loved working with his father, and would have never agreed to be separated from him. But Plainview was doing what was best for the boy, not just getting rid of him.) Plainview has a “revelation” during the scene and sends for his son to return (now accompanied by a sign instructor). There is clearly a very strong bond between the two, and Plainview is set up as truly caring for the boy, despite the boy’s true parentage. Which makes Act V so much more inexplicable.

Act IV is where it starts to go downhill. We see changes in Plainview, and flaws that were not in evidence for the first three acts. Acts IV and V do not follow from the earlier acts.

Act V really ruins the film. Plainview totally self-destructs, for no good reason. The film seems to suggest that he is corrupted by his wealth, but hasn’t done anything to really make us understand how. I guess this is the Socialism. We are expected to take for granted that wealth corrupts and destroys. Plainview disowns his son. Again, for no good reason except that the boy, now grown and married, wants to leave his father’s company and strike out on his own in Mexico. After his son leaves, Ely comes back asking for money. Plainview gets his own revenge for the baptism scene by making Ely profess his own iniquities, in much the same way Ely had made Plainview do. I guess we are supposed to think that the two men are really no different from one another - both parasites and con-artists, but those of us who actually watched the first three acts know better, and the scene comes off as really quite humorous. When Plainview starts chasing Ely around the room with deadly intent, the scene is truly comical. Plainview bludgeons Ely to death with a bowling pin, and my sister and I were laughing. We weren’t the only ones, either.

It really was a pity, because so much of the film was really good, and Daniel Day-Lewis (as Plainview) gave an excellent performance. The first three acts were quite good and very well-told, and are visually and thematically appealing. For these reasons, I could not rate it too harshly.

Posted by Qwertz at 10:54pm on 21 Jan | 1 Comment

William Gluckin & Co. v. Int’l. Playtex Corp., 407 F.2d 177 (2d Cir. 1969), is an opinion upholding the issuance of a preliminary injunction against Playtex, manufacturer of, ahem, ladies’ support garments, prohibiting Playtex from prosecuting a lawsuit it had filed against Woolworth & Co. for selling brassieres manufactured by Gluckin at Woolworth’s stores in Georgia. See, what happened was this: Playtex had a patent, and Gluckin (allegedly) infringed the patent and sold the infringing unmentionables to Woolworths, who sold lots of them in Georgia. Woolworth’s, Playtex, and Gluckin were all New York corporations amenable to suit in New York, but Gluckin was not amenable to suit in Georgia. Playtex sued Woolworth’s for infringing its patent in Federal court in Georgia. Gluckin found out and filed their own suit (for a declaratory judgment) in Federal court in New York.

See, if the Georgia suit went ahead, the Georgia District Court would have had to determine whether the bust supporters sold by Woolworth’s indeed infringed Playtex’ patent. This would be the same issue as what would have to be decided in the declaratory judgment action in New York. So if the Georgia court made a decision on the subject, that decision would have had a binding effect on the New York court under the doctrine of res judicata. (Woolworth’s probably could have had the Georgia case dismissed for failure to join a necessary party who could not subsequently be joined because of a lack of personal jurisdiction, see Fed. R. Civ. P. 19, but that’s not what happened.)

Gluckin, therefore, really wanted to make sure it had the opportunity to litigate the patent infringement issue itself in the New York suit, and not by proxy through Woolworth’s in the Georgia suit. But ordinarily, the suit that gets filed first gets priority, and later suits get enjoined until earlier ones get finished.

Fortunately for Gluckin, there is an exception to this first-filed-goes-first rule, arising out of patent law. An infringement suit against a customer of a manufacturer always has the manufacturer as the real party in interest, and the policy of the Second Circuit is to place preference on the real party in interest litigating his own claim, so long as it is more convenient than the customer suit. Which is why Gluckin got the injunction against the Georgia suit.

Anyway, I’m sure all you peoples out there who don’t care about civil procedure were bored to tears reading about all that.

On a more entertaining note, reading this case reminded me of this fun yet highly inaccurate account of the invention and patenting of the brassiere from the ultra-tear-jerker film Beaches, starring Bette Midler and some other people whose names I cannot remember.

Posted by Qwertz at 2:20am on 16 Jan | No Comments