Blawg Review #63
June 26, 2006
Final boarding call for Blawg Review Flight Number 63. All passengers should be on board the aircraft at this time….
Terminals have always been, and probably always will be the ‘bottle-necks’ of transportation, whether of ground, water, or air systems.
— Harry H. Blee, US Aeronautics Branch, 1932
Ladies and gentlemen, we have been cleared for takeoff for Blawg Review Flight Number 63 – "Around the World in 180 Posts" – okay, 27 posts. But they’re good posts. They’re not all blawgs, but the vast majority are; those that aren’t are aviation-related and therefore superior by nature. Please make sure your tray tables and seatbacks are in the upright and locked position, and direct your attention to the overhead monitors for some important safety information.
In the event of an emergency landing, your laptop cannot be used as a flotation device, although if you have a wireless card, you might be able to send an email with your coordinates to the Coast Guard. Take a moment now, then, to familiarize yourself with the power capabilities of your in-seat outlet, using this helpful guide from Chad Dickerson of Yahoo! who offers us all some sage counsel on this topic, and sings the praises of SeatGuru, a free service that gives you the lowdown on your aircraft seat. Which seats have the most legroom? Which have those handy outlets, for which Chad tells us you need an inverter? Most important of all, which seats are closest to the lavatories? SeatGuru knows. Did I mention it was free? Be sure to check out Chad’s comment section on this post for some additional insight on specific carriers’ practices. In that same vein, Gizmodo, the Gadgets Weblog, expands on Chad’s comments with this post about a new adapter for USB devices that can work with any aircraft seat headphone jack. Yes, headphone jack. Not that we condone the use of prostitutes here at TAL Airlines, whether in Beijing, Vegas, or anywhere else. Just thought we should mention that. (Bet you want to click that link now, don’t ya?)
I’m sure you all had a brief and entirely pleasant encounter with TSA on your way to the boarding gate. Drop a line to Professor Bainbridge then, will you, and let him know that they don’t all suck?
Our first destination isn’t really a blawg at all, although it has the "law" part down. We start things off with Andrey Pinsky, a Toronto aviation lawyer whose website, http://www.theaviationlawyers.net, features several meaty articles offering practical guidance on a variety of aviation matters. Most of these pertain to Canadian law, but a few branch out into US-Canadian aviation relations or are equally applicable. There’s "Raising Debt Capital for an Aviation Startup Company," and an update on 2004 developments in aviation law, including some U.S. court cites, found here. While a blawg might add some breadth to Mr. Pinsky’s well-designed website, I honestly don’t think he needs one. Some might disagree. It appears to be fashionable these days to look askance at a lawyer that doesn’t have a blawg. My perspective is a bit different, however. I believe a lawyer should ask first, "Why should I have a blawg?" "Because everyone else does" really doesn’t cut it. Rather, seek to fulfill a need, or simply do it better than someone else. Know why you’re blogging, and keep that mission in mind. Blogging isn’t right for everyone. (Heresy! Kick her out of the BR corps.) TAL, for instance, was designed to fill a very specific niche, being the only regularly published blawg I know of focusing predominantly on airport law (as opposed to aviation or airline law). Figure out what you can contribute better than everyone else – and let that be your blawg mission statement.
Enough pontificating. On to the next layover on this round-the-world adventure. But before we take off, let’s pay a quick visit to our friend, the PithLord of Pith and Substance, who brings us this entertaining case comment. As PithLord puts it, "We at Pith and Substance sometimes kid Justice Binnie about his prose style. But we kid because we love. The man did a bang up job of making a statutory interpretation case about who should pay for Canada 3000’s unpaid airport charges about as interesting as it could possibly be." I mean – really. Airport charges. Interesting. I have to shake that man’s hand.
As we leave lovely Canada behind, we hear the indignant yelps of the Aviatrix at Cockpit Conversation attempting to educate the hapless reporter who mangled the difference between "approach" and "landing" and got Aviatrix’s ire up. Woe be unto ye, my friend. Next time, try a little research.
At George’s Employment Law Blawg, guest blawger Rita Mace Walston points out the obvious and not-so benefits of telecommuting. With rising gas prices, telecommuting employees might make a lot of sense, if carefully implemented and if expectations are clearly laid out.
Peter Lattman is jealous of Junichi Semitsu, the legal writing instructor from San Diego who was recently hired by the Dixie Chicks as their official blogger. Meanwhile, KipEsquire doesn’t like Senator Chuck Schumer’s proposed bill requiring airlines to notify their passengers when flights will be late. I mean, he really doesn’t like it. Of course, deregulation doesn’t mean no regulation; every regulated benefit has an associated cost. Nevertheless, interesting economic take.
Speaking of economics, we can’t leave the Big Apple without saying hello to our favorite eighteenth century economist, Adam Smith, Esq., or his alter ego these days, Bruce MacEwen, who urges us to "think different" as he shares his thoughts on fortune-telling for law firms, or more accurately, how to read the world stage for coming trends. Bruce cites "Scanning for Threats and Opportunities," by George S. Day and Paul J. H. Schoemaker, an intriguing article from Harvard Business School’s Working Knowledge, which uses the example of a medical device manufacturer that went about this process by trying to put themselves out of business – not literally, but on paper. The question they posed – "What emerging therapies will make our device obsolete?" – can be tailored to fit any sort of business to stir up some of that different thinking for a forward-looking purpose.
Finally, Nicole Black, a New York lawyer blogger who provides contract legal research and writing services, rounds up the commentary on the controversial advertising rules proposed for New York lawyers at Sui Generis. Nicole agrees with the vast majority of bloggers I’ve read who conclude the new rules will have a disproportionate impact on solo and small firm lawyers, for whom web advertising is key.
People in Boston are always starting something. First it was that little tea party. Now, David Maister, world-renowned professional services consultant, started something a few weeks back on his blog, Passion People and Principles, something that continued into his comments, into a few more posts, and then wound up in, of all places, the Times of London. The snowball: a query about how to market his own website. The resulting avalanche: a fascinating discussion about content and weblogs and such.
Radley Balko discloses at Cato@Liberty the horror of Professor Sam Walker, a highly respected criminology professor whose work was quoted by Justice Scalia in a recent decision to tout the "increasing professionalism" of law enforcement agencies, in order to support his thesis that civil rights violations have been increasingly deterred from within (and not, presumably, from pressure by "activist judges"). While one would generally get a mild thrill from such an endorsement, said thrill would apparently be dependent on the Supreme Court Justice in question actually, you know, getting one’s conclusions right.
Also in DC, we get this profile of Gregory Principato, the big cheese at Airports Council International-North America (ACI-NA). No life-long aviation enthusiasm brought Greg to ACI; rather, it was an understanding of the role of the air travel system as the economy’s driving force both as a key particpant and as an indispensable piece of the infrastructure.
As we leave the pretty white buildings behind, you might want to take a gander at the lively discussion at SCOTUSBlog on the recent Supreme Court decision in the companion cases of Rapanos and Carabell on the Clean Water Act’s breadth of application, and the Corps’ jurisdiction. A fascinating case, not just because of the subject matter but also the breakdown of the Court’s vote. As Amy Howe reminds us, "While Justice Scalia’s plurality opinion is strikingly sweeping and remarkably disdainful of the policy and purposes of the Clean Water Act, it is only that: a plurality opinion. And, as the Chief Justice pointedly reminds us in his own concurring opinion (he also joins Scalia’s), the lower courts will now have to follow Marks v. United States, which means that Justice Kennedy’s separate concurring opinion is controlling. Under Marks, ‘[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds ***."’" (cites omitted)
Jim Calloway has an awesome post up at his Law Practice Tips blog, which references Patricia Yevics’ terrific article "Taming the Beast: Managing Client Expectations in a 24/7 World," in the June 2006 issue of the ABA GP/Solo Technology and Practice. Why this post? Should be obvious but here’s a hint: PRACTICAL. ADVICE. Including this link from PracticePRO which offers handy tips on how to deal with difficult clients. Now, here’s my rant (I was promised one when I signed on to host): What gives with the blawgs lately? I appreciate theory as much as the next law geek. But one of the great things about blawgs is the amazing opportunity the format gives us (the collective us) to help each other. Anybody can spew off about an opinion – heck, law school taught us all to form those quickly and change them often. But practical advice seems to be wanting from a lot of blawgs I’ve been reading lately. What’s so hard about helping out your colleagues? Is there some resistance to sharing business secrets? Is this about competition? Or is it a lack of confidence – do blawgers simply not think they have something valuable to share?
A story: A former classmate of mine was notorious for whining, years after graduation, that she didn’t know anything. She was miserable at work – she always had a story about the latest transgression committed by this boss or the next in a long line of firm positions that, for mysterious reasons, never seemed to work out for very long – but when those of us who stuck around suggested that she go out on her own, she’d whine, "I can’t possibly, I don’t know anything…" This, despite the fact that she had a respectable win record defending public entities in tort actions, and despite the fact that she was slowly developing a book of business. Obviously, the lack of confidence wasn’t completely stopping her from succeeding in her profession. But I often wonder what might have happened had she had a little more faith in herself … Rant over. Back to the flight plan.
At John Walkenbach’s blog, J-Walk, we learn about Flight Aware, a company that provides online tracking of flight information, both general aviation (GA) and commercial. This, as John correctly notes, is "pretty slick." Now when that smooth-talking gent in the navy sweater tells you that your connecting flight from Atlanta just left the gate, you can prove him wrong! (Or right.) You can look up GA aircraft by tail number, commercial flights by flight number, browse by airport, or even get random and just see where the site takes you. Did I mention it was free?
Christopher McKinney, a Texas labor and employment law specialist, brings us The HR Lawyer’s Blog, and a post on "Some Arbitration Issues." Rounding up some recent press and other blogs’ posts on arbitration-related matters, Christopher boldly goes against the common wisdom and announces his opposition to arbitration: "I’ve tried an awful lot cases and, frankly, juries usually get it right."
There is no other airport in the world which serves so many people and so many airplanes. This is an extraordinary airport. . . it could be classed as one of the wonders of the modern world.
— President John F. Kennedy, dedicating the Chicago O’Hare airport, 23 March 23 1963.
…Hell, which as every frequent traveler knows, is in Concourse D of O’Hare Airport.
— Dave Barry. There is no concourse D at O’Hare
We’ve reached cruising altitude over Illinois and it’ll be a few minutes before our next stop. Why not take advantage of the time to scare the crap out of yourself with memories from law school, courtesy Evan Schaeffer’s Legal Underground?
LawInfo.com’s LawBlog reports that Southwest pilots received conflicting reports on runway conditions preceding the Midway incident last year that took the life of a six-year-old boy. (All runways involved in today’s virtual tour are in excellent condition, by the way.)
It’s Christmas for Likelihood of Confusion, which recounts a Denver Post report that a Colorado company has field suit alleging that Yahoo! bought ads on Google to direct traffic to its own dating site based on searches for the Colorado company’s name. I’ll be around shortly to collect that wrapping paper before we land.
Any of you thinking about joining the mile high club on this flight might first want to cruise over to Anonymous Law Student and read what a bunch of lawyers had to say about lawyers in love. Not that the mile high club has much to do with love … and no, I didn’t pick this one just because I was one of the lawyers ALS asked to participate in this survey. The common threads seem to be communication (or a lack thereof) and expectations (or a failure thereof). Also? I like the pictures. Visual aids rock.
OK, if you lean waaaaaay far over your seatmate and peer out the right windows, you might see a tiny speck down there that may, or may not be, Guantanamo Bay. Probably isn’t. But it’s as close as any of us are getting these days. So it’s as good a time as any to introduce you to Jon Swift, who grants as how Amnesty’s infamous characterization of Gitmo as "Kafkaesque" is probably on the money, but insists it’s "Kafkaesque in a good way." After all, he "reminds" us, we may discover that the only way to save the princples [that] make our country great will be to sacrifice them." … And speaking of aliens, trot over to Unused and Probably Unusable, why don’t you, and check out Heinlein Friday, which saw Eh Nonymous’s recounting of Aliens, Combatants and the Other in Heinlein’s work. Your choice: with politics, or politics-free!
On to the international leg of our journey – and our first stop is Somalia (oh come on, Canada doesn’t count). Professor Brian Tamanaha writes at Balkinization that recently released documents show that the US government financed the Somali warlords against the Islamic forces in and around Mogadishu, against the wishes of both the UN and the Somali government. Did I dream Black Hawk Down? No, the website‘s still up… Looks like the 21st century now has its own version of "better dead than red."
We’ll enjoy a brief respite at Beijing while we refuel the plane. As Dan Harris at China Law Blog warns us away from the fake erectile dysfunction medications apparently for sale within, let’s stick to window shopping. Somebody bring me back some Kung Pao?
And now, in the most roundabout fashion, possible only thanks to the virtual nature of our trip, we’ll jaunt over to …
.. where JD Hull notes – with wry amusement? Fear? Loathing? – that what happens in Vegas might stay in Vegas but only til it finds the direct flight out of McCarran International to Manchester, England, England.
That is the trouble with flying: We always have to return to airports. Think of how much fun flying would be if we didn’t have to return to airports.
— Henry Minizburg, ‘Why I Hate Flying.’
Which brings us back to our final destination, the lovely MYR, my home field (the linked page notwithstanding, it’s no longer an Air Force Base). What? I’m piloting this bird. I get to pick where we land. I doubt you’ll complain once you check out our beaches, seafood, and golf courses. Enjoy your stay. When you’re ready to trudge back to your dreary lives in the concrete jungles of the world, we’ll be here with connecting and direct flights to suit your travel needs – assuming you ever want to set foot in an airport terminal again after this.
Thanks to Ed. for the opportunity and the support, and to SkyGod.com for the quotes. Most of all, thanks to the bloggers who wrote and submitted this week’s entries. You made this job very, very hard. But totally in a good way. For more information about the use of airport codes, see this excellent explanation, also by SkyGod.com.
Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues
Alternative Fuels for Jet Travel in Our Future?
June 21, 2006
Environmental activists have long focused criticism on the amount of fuel consumed by cross-country and international jet travel, but government and academic researchers announce that they are researching alternative fuels for jets. A usable product is years away, but the length of time such an endeavor takes is only one of the many challenges facing development of these alternative fuels:
- Such fuels are even more expensive than Jet A right now.
- The fuels are difficult to transport and manage in harsh weather conditions, making snow-prone northern climes more costly for such fuel usage.
- Some of the alterna-fuels, such as biodiesel, freeze at lower temperatures – making high altitudes "interesting" (tm Peter Kirsch)
Regardless, the inquiry is a positive development. TAL hopes the project proceeds apace and leads to a usable product soon.
Litigating In-House on Behalf of Airports
June 18, 2006
For much of my career with the Department of Airports and prior to that with Horry County itself, I have been curious how different public law offices deal with litigation. Of course, most municipalities and counties that aren’t self-insured will have counsel appointed by their insurers for tort-based claims. Many entities rely on prepaid legal defense for other types of suits brought against them. But, as with most other aspects of the job, airport lawyering is different.
For one thing, airports are more likely to be plaintiffs than the public entity owner, which typically is sued for civil rights violations, personal injuries on public property, and FOIA disputes, among other types of claims. Airports have all that, but also suffer damage from defective construction projects and nonpaying tenants and airlines. Additionally, there are Part 13 and 16 disputes to defend. The breadth, complexity, and frequency of airport litigation can tempt an airport lawyer to throw up his or her hands and turn the whole lot over to outside counsel.
But lately, I’ve been wondering whether there’s a better way. I imagine most airport law departments are like mine – not large enough to handle all litigation matters in-house. (Some of the larger authorities may well have extensive litigation departments; if any of those lawyers are reading, please write in – I’d love to hear from you how your office is managed when it comes to litigation.) I wonder, however, whether such an "all or nothing" approach is the complete picture.
Blake Guy of BearingPoint doesn’t think it is. His article for law.com, "Should You Bring Litigation In-House?" discusses the issue of managing and conducting litigation from the vantage point of in-house counsel for private companies, but the insights he shares from the BearingPoint experience are equally applicable (with some modification) to public law offices, including airport legal departments. Blake points to the "hybrid" model – something between "all litigation handled in-house" (completely impractical for most in-house law departments) and "all referred to outside counsel" (expensive in terms of money and lack of control).
Most public law offices are going to be, like mine, insufficiently funded to handle all litigation in-house. And although with ten years’ experience, I’m not exactly a newly-minted baby lawyer, I do know enough to realize that I’m not an expert in construction defect litigation, and when the damages are creeping up on the million dollar mark I need the resources of a dedicated litigation firm taking the point position. Excluding the insurance-defended suits that still leaves smaller claims against tenants/carriers, FOIA actions, employment suits (except class actions) … there’s a lot of opportunity here for some creative thinking.
Guy advocates first pinpointing your model, and defining its parameters. For purposes of this discussion, we’ll take the model under consideration for HCDA:
- All non-class action employment claims (excepting those covered by our insurance policies and worker’s compensation claims, which are covered county-wide by outside counsel under a separate agreement);
- All commercial litigation under a certain amount
- All landlord/tenant disputes;
- All FAA proceedings, except as deemed worthy of specialist counsel services ; and
- FOIA suits.
It might seem like a lot for one in-house counsel to handle, but the recent litigation history suggests that it isn’t as overwhelming as it appears – approximately 50% of the litigation I’ve been involved with over the last ten years, but that’s on average two cases a year. Not exactly overwhelming, even in addition to our "normal" tasks (renegotiating an AUA, anyone?).
One possible source of negative fallout from such a move away from solely outsourced litigation is the political nature of business relationships between the political entity owning the airport and local outside counsel. Such political concerns might not be properly considered as primary or even determinative, but nevertheless they’re a fact of life and must be negotiated. Here, too, Blake has a suggestion: simply rethink the way you use outside counsel. Consider them as second-chairs, or assign specific subtasks to them (such as taking depositions or handling document review). Let their considerable resources fill in the holes, so to speak.
None of this is to suggest that airport staff counsel should or even could be realistically expected to take over all litigation. Your elected and appointed officials need to be educated on that point – the fine distinction between a trial lawyer (or litigator – and there is most certainly a difference between those two) and a transactional attorney, the differences between your department’s resources and those of outside counsel, and the creative ways in which those resources and talents can be used in combination to the advantage of the airport client.
Monday Morning Roundup
May 15, 2006
Things are hectic and crazy here at TAL, as always. Thanks for your continued patience while I try to forge a more consistent posting schedule – something between "every few hours" and "once a month" is my goal.
Airports and stakeholders in the news lately (links subject to disappearing/archival after 7 days):
- San Diegans are involved in what one article calls potentially "the biggest landlord/tenant dispute in their history" over the need for airport development. The crux of the issue: the current digs are conveniently located, but woefully small. Of three military sites which serve as the main options available for relocation, one – the Marine field at Miramar – is the frontrunner. But both the Marines and the Navy nix a joint use approach. How will it all end – with the airport tied on the tracks a la imperiled Pauline? Stay tuned for a real-life demo of NIMBY in action. (LA Times)
- Planning to pick up a Prada bag on your next jaunt to Shanghai? Good luck with that. Prada SA has opted to close its authorization for the store in the Pudong International Airport, after counterfeit goods were found. Wonder what the percentage rent on a Prada store would run …(ChinaDaily)
- An eminent domain battle is brewing over a privately-owned field in New Jersey. Solberg is owned by the Solberg family, which opposes a referendum scheduled tomorrow on whether Readington Township authorities will be permitted to undertake a $22 million bond issue, with an eye towards purchasing development rights and open space around the airport. (NJ.com)
- Panama City/Bay County Airport Authority officials report that they’ve received the FEIS (Final Environmental Impact Statement) from the FAA for the proposed relocation of the airport. The final ROD should be issued in September. (ANN)
- More on Wright: Southwest mentions the "T" word (takings) and says any closure of Love would come with a price tag exceeding "the stock options of all American Airline’s executives combined." (MSNBC.com)
Monday Morning Roundup
May 1, 2006
Haven’t done this in awhile! In the news recently:
- Airport Business News reprints from the San Francisco Chronicle a report on expected high traffic numbers this summer.
- A circulated offer of truce from Dallas/Fort Worth surfaced, signalling a potential break in the Wright Amendment logjam. (Airport Business News)
- Rep. Mary Bono lobbied President Bush directly for additional funding for the Palm Springs tower on a recent trip. (The Desert Sun)
- TSA is reportedly looking at a bonus structure to reduce high turnover among screeners. (USA Today)
- The San Diego Airport Authority’s public relations program is the focus of two articles offered at Voice of San Diego, raising the question: if you don’t do PR, you lose – and if you do PR, you lose – are airports just not going to win this one, no matter what they do?
The Airport Lawyer 