Declarations and Exclusions

Blawg Review Nominations

Shirley Temple: 

Golly gee, Mr. Disney!  What are all these little statues for?

Walt Disney: 

Well first, Shirley, I need to ask you politely to take your dimpled mitts off of that large statue, because that one's mine.  Heh, heh.

But as for those little ones: you and I have been asked to hand these out to the seven legal weblogs that Declarations & Exclusions is nominating for the prestigious title of 2007 Blawg Review of the Year. 

As the Anonymous Editor of Blawg Review has explained in the Official Rules, this year's winner will be selected by the votes of all those weblogs that have hosted, or are scheduled to host, one or more editions of Blawg Review.  Each host can nominate however many he or she chooses from Blawg Review editions 89 through 140, and the edition receiving the most nominations by January 14, 2008, will be declared the winner.

Shirley Temple:

Jeepers!  It's sort of a Blawgers' Choice Award, isn't it, Mr. Disney?

But doesn't Colin Samuels always win in this category?

Walt Disney [nervously]:

Heh, heh.  He certainly does, Shirley.  But this year when he wins, it'll be the result of free and fair elections -- which, as we all know, makes everything okay.

So, shall we find out who the nominees are?

Shirley Temple:

Let's do it, Mr. Disney!  And like I always say, everyone's already a winner when it comes to Blawg Review!

Walt Disney:

You bet, Shirley!  So now, here's two-time Blawg Review host George Wallace, the non-anonymous editor of Declarations & Exclusions -- and of its sibling site, a fool in the forest, itself the home to two editions of the April Fool's Blawg Review Prequel -- to announce his nominations for 2007's Blawg Review of the Year.

[Muffled, courteous applause]

George Wallace:

Thank you, Miss Temple.  Thank you, Mr. Disney.  And thank you, Anonymous Editor of Blawg Review, wherever you are, for overseeing another terrific year of Blawg Review.

I have to admit I have sometimes been remiss this year in reading each edition as it was published, but the invitation to proffer nominations in this category gave me the impetus I needed to go back and visit or revisit every one of the eligible editions.  And I must say, it really drove home to me what a profusion of talent, imagination and gumption the legal blogosphere contains.  Miss Temple is right: they are all winners already.

[Wild applause]

All right then.  The hour grows late and we all want to get to the big Blawg Review afterparty, and some of us probably need to be in court in the morning, so here we go.

[Portentous rumbling from the scary orchestra]

Declarations & Exclusions is proud to nominate, in reverse chronological order, these hosts and their editions of Blawg Review as the best of the best in 2007:

• Colin Samuels for Infamy or Praise: Blawg Review #137, completing his trilogy of editions inspired by Dante's Divina Commedia; 
  

• Eric Turkewitz for New York Personal Injury Law Blog: Blawg Review #134, inspired by the New York Marathon;

• A dual nomination to Diane Levin for Online Guide to Mediation: Blawg Review #130 [northern hemisphere] and, in New Zealand, to Geoff Sharp for mediator blah...blah...: Blawg Review # 130 [southern hemisphere], spanning the globe to bring us the constant variety of legal weblogs;

• Anne Reed for Deliberations: Blawg Review #127, inspired by the jury system and all that it entails;

• George Lenard for George’s Employment Blawg: Blawg Review #124; Labor Day Special Historical Edition, truly a labor of love by a lover of Labor;

• David Gulbransen for his collegial and eleemosynary "Course Guide" edition of Blawg Review #122; and

• Kevin A. Thompson for Cyberlaw Central » Blawg Review #93, a product of the vast Illuminati conspiracy.

Let's congratulate them all, shall we?  Thank you and good night!

[5 minute standing ovation, followed by effusive rioting in the streets as the scary orchestra plays on. . . .]

Bless His Pointed Little Head Monuments

New Horizons in Intellectual Property Law

Lee Rosenbaum's CultureGrrl weblog links an intriguing Guardian report: "Egypt to copyright the pyramids and antiquities":

Egypt is planning to pass a law that would exact royalty payments from anyone found making copies of the country's ancient monuments or museum pieces, including the pyramids.

Zahi Hawass, head of Egypt's Supreme Council of Antiquities, said his country wanted to own the copyright to its historic monuments and would use any money raised to pay for the upkeep of its most prestigious sites.

Hawass, an outspoken figure in the usually cautious world of antiquities, said the law had been agreed by a ministerial committee and would go before parliament, where it was expected to be passed easily.  It would then apply anywhere in the world, he said.

* * *

His comments came only a few days after an Egyptian opposition newspaper, Al-Wafd, published a report complaining that many more tourists each year travelled to the pyramid-shaped Luxor hotel in Las Vegas than to Luxor itself.  The newspaper proposed that the US hotel should pay some of its profits to Luxor city.

Decs&Excs looks forward to any comment that may be forthcoming from Donn Zaretsky's Art Law Blog. 

In the meantime, TIME Magazine's Richard Lacayo offers a precis of architectural copyright and the particular problem posed by structures with Origins Lost in the Mists of Antiquity:

My question: Can you copyright ancient monuments that have no known architect?  The Berne Convention for the Protection of Literary and Artistic Works provides a mechanism to extend protection to the 'authors' of works of architecture.  Some sculptural monuments by identifiable artists have copyrights.  The Statue of Liberty — by Frederic Auguste Bartholdi — has had one since 1876, ten years before it was dedicated in New York Harbor.  And though the Eiffel Tower has been in the public domain for years, its night time image is not.  Its decorative electric light display is copyrighted, which effectively copyrights the tower at night, so commercial photographers have to pay a fee to take its picture once the lights are on.

~~~

Cover image of Pyramid Power: The Millennium Science via Earthpulse Press -- where you can still purchase this million-selling 1973 classic that was "decades ahead in presenting many ideas in science which are now embedded into our consciousness."

You Do Know How to ERISA, Don't You?

This weblog is usually more focused on property/casualty insurance issues, but everybody knows that health insurance is where much of the political action is.

Only ten days ago, Stephen Rosenberg's Boston ERISA Law Blog looked westward to examine recent bipartisan moves in Sacramento to address health care insurance availability and affordability through "fair share" legislation. Under a "fair share" plan (to oversimplify a bit) employers are required either to provide health insurance to their workers  or else make a monetary contribution to the state's coffers.

As Stephen points out, there is One Small Problem with this approach. . . . Congress will not permit it.

When Congress passed ERISA [the Employee Retirement Income Security Act] way back in 1974, the federal government completely occupied the field of regulating employment benefits. Enacted in response to the perceived pension crisis of the early 70's, ERISA governs not just pension and retirement plans but also nearly every other sort of plan that may be characterized as an "employment benefit," including employer-provided health insurance plans. Congress was so intent on taking control of this area that state and local governments are expressly prohibited from enacting any regulation of their own concerning employee benefits. ERISA is the only game in town. The federal preemption is so broad that even state courts are barred from recognizing or enforcing common law remedies where employee benefits are concerned.  This last attribute drives the plaintiffs' bar crazy, because it precludes "bad faith" claims against HMOs and health insurers if the policy was provided through an employer.

It would be difficult to imagine a more plainly ERISA-precluded policy than a state level mandate compelling employers to provide health coverage.  Even ERISA itself does not mandate that an employer must offer any particular benefits, or any benefits at all, to employees.  ERISA simply regulates the operation of benefit plans if an employer chooses to provide them.  Congress has not mandated employer-provided health benefits (yet), but ERISA ensures that Congress is the only body that possesses that authority.

Stephen Rosenberg sums up the problem this poses for state and local governments who feel the urge to "do something" involving employers and health insurance:

California, like other state and local governments who tread this path, are likely walking right smack into the buzz saw of ERISA preemption, and much like the legislature of Maryland did in enacting its fair share act that was struck down by the courts, appear to be simply sticking their heads in the sand when it comes to this issue.

He's right, and early proof has surfaced this week.  Not ones to wait for Sacramento to move, the progressive burghers of the City of San Francisco have already enacted a local "fair share" employer mandate.  Yesterday, U.S. District Judge Jeffrey White on Wednesday ruled that the City had no power to do that.

The Sacramento Bee's Daniel Weintraub echoes Stephen in a post on his California Insider weblog [registration required], and offers suggestions as to why the merry band in Sacramento is blithely ignoring the obstacles posed by ERISA:

It shouldn't come as much of a surprise that Federal District Court Judge Jeffrey White has ruled that San Francisco's new health care benefits law violates federal law because it requires employers to spend a certain amount on health care for their workers or else pay a fee for the city.  The bigger mystery is why state officials -- especially Gov. Arnold Schwarzenegger and Assembly Speaker Fabian Nunez -- have been pursuing an almost identical strategy, knowing it would probably eventually suffer the same fate.  One answer is that they hope the Congress and the next president will repeal the law that preempts state and local programs, or at least give California permission to experiment with a federal mandate.

Not, in my view, a terribly likely outcome, no matter who is in charge of Congress and the White House at the end of next year.  There are simply too many engrained habits in D.C. to make it all that likely that Congress will relinquish control of employee benefits at this late stage.

Weintraub, in turn, links a San Francisco Chronicle report that includes its own fascinating bit of policymaker rationalization:

City lawyers, joined by a group of labor unions, argued that the city was not regulating employee benefits - which federal law forbids - but was simply making health care available to workers whose employers chose not to provide it.  They said federal law allows a local government to require employers to share in health care costs as long as companies can comply without setting up new health plans.

That sort of thinking is reminiscent of the old U.S. Supreme Court decision that reasoned that a denial of benefits for pregnancy did not discriminate between men and women, but rather between "pregnant and non-pregnant persons."  Which makes it OK, right?

Interestingly, neither of these reports mentions ERISA by name, even though it has loomed large over employee benefit issues for more than three decades.  Daniel Weintraub's post does not dig into the Court's rationale, and the Chronicle only refers vaguely to "a 1974 federal law that prohibits state and local governments from regulating employees' benefits" -- which is rather like describing the Internal Revenue Code as "a federal law that requires most adult citizens to fill out a form each year."

~~~

UPDATE [122807]:  Follow-up comments by Stephen Rosenberg on the San Francisco decision are here.  He also points to a good summary post on the Workplace Prof Blog.

"You Can't Fool Me: There Ain't No Sanity Clause"

At this season of kindness, calmness, sweetness and good cheer, let us wish for a world in which every  legal negotiation could be as simple as this one:

Marx Brothers - Sanity Clause

Chico is mistaken, of course, although the gentleman in question prefers to go by the name Saint NicholEsq.

Decs&Excs wishes a Happy Christmas to lawyers everywhere, and wishes it tenfold for those who tolerate or even love us.  Ladies and gentlemen of the Bar, let us strive always give them good cause to do so.

~~~

"Santa, Esq." illustration via Harrisburg, PA, violinist/broadcaster John Clare's Classically Hip. 

[Do click through to see what a mess the Legal Department has made in retitling Christmas carols.  "Vertically Challenged Adolescent Percussionist"?  Humbug!]

New Horizons in Electoral Litigiositude

The disturbing thing is that someone, somewhere is very likely drafting this complaint right now.....