AAAAAAAAAARGH!

The Freight Transport Association has issued a new guide called the FTA Cycling Code.  It is a useful idea to produce something like this to attempt to reduce the tragic and unnecessary loss of life and injury that occurs when lorries come into contact with bicycles.  The advice for cyclists is readily available elsewhere and the section is most useful for pointing out to lorry drivers that cyclists are advised that:

"Your road position should not be less than one metre from the kerb and should be further out if it is not safe for a vehicle to pass. If someone does pass you inconsiderately then you have more room to get out of harm’s way. Keeping away from the gutter will enable drivers to see you and also help you miss the drain covers and debris on the side of the road too"

My experience indicates that some of the advice to lorry drivers is badly needed.  I hate to quibble but I believe the following section should urge 1.5 metres:

"3 ‘Give a metre’ or hold back until there’s room
Many roads have too little space for cyclists and hgvs at the same time. If an hgv cannot give a cyclist at least a metre’s clearance then they should hold back. Drivers should bear in mind that cyclists are trained not to ride too close to the kerb. The Highway Code advises that you should give at least as much room as when overtaking a car."

Drivers reading this who do not have experience of cycling are likely to feel that a metre is fine and ignore the 'at least' bit.  My view, and it is one adopted in much of Europe, is that 1.5 metres is better practice and is definitely required if the lorry is overtaking the cyclist at speed.  Furthermore if a metre is just fine then that cyclist who is travelling 1 metre out from the kerb is 'an obstruction' and 'should keep in to let me pass' as has been yelled to me too often.

The reason for the title of this post is that the above picture is reproduced on the guide without any obvious indication of irony or that it is illustrating a problem.  Both the driver and the cyclist are ignoring the advice in this guide and the people who have selected the photograph do not appear to have noticed.  I am sometimes close to despair.

..and here is one that happened to me yesterday

Wal-Mart Stores, Inc. v. Duke -- A Sigh of Relief

Analysis will come later as all I have done is read the highlight and the line up of  judges. Judge Scalia's majority opinion was joined in some parts by all justices, while Justices Ginzberg, Breyer, Sotomayor and Kagan dissented from some.

The loud sound you heard was corporate America finally relaxing.

Frankly, I don't think anyone who is serious about an orderly resolution of disputes, where all parties have a fair shot at proving their allegations or defenses, has any other feeling.

The court's opinion is here.

Update: Now that I have read the opinon, here are some more substantive thoughts.

First, an ironic and sad footnote to today's opinion. Professor Richard Nagareda achieved what I assume is something highly desired by any academician, have one of your articles play a key role in a seminal Supreme Court decision. Professor Nagareda achieved that today, as both opinions the majority by Justice Scalia and a concurrence and dissent by Justice Ginzberg cite frequently from his Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97 (2009).  Unfortunately, Professor Nagareda died last October at the much too early age of 47, shortly after taking a position with Vanderbilt University School of Law.

 Today's case deals with the fine points of Rule 23, which is the vehicle for creation of class versus individual trials. It was widely used in the early days of Title VII, but its use had fallen off until the last few years. In part this was tied to the Civil Rights Act of 1991 which for the first time permitted jury trials and compensatory damages.  Courts generally held the compensatory damages were not suited for class actions.

In the last few years though, a new plaintiffs strategy emerged. Get a large enough class together, don't seek compensatory damages, just back pay and punitive damages,  get it certified and then force the defendant to settle because of the costs of defending and the uncertainty and difficulty of trying such a large case.  Wal-Mart v. Dukes was the largest of all, and frankly was a good case from an employers standpoint to end up before the Court.

Today's decision is going to severely restrict the use of class actions in discrimination cases going forward. The details will be fleshed out, but the Court unaminously made clear that cases where monetary issues, including back pay dominate (i.e. almost if they exist) then certification under Rule 23(b)(2), plaintiffs' preferred suit and the one it tried in Wal-Mart, is not appropriate. (Kudo's to the 5th Circuit, for having this position in advance.)

Much more important to Wal-Mart, and probably going forward, all of us, the 5-4 majority made it much more difficult to meet the standards for any class without a very tangible, specific job practice that it can be tied to. A standardized test with a disparate impact probably meets the standard but on first blush that seems to be about the closest bright line that we have.

The 5-4 opinion seems to pull the teeth from what I have always considered one of the more dangerous Supreme Court opinions, Watson v. Fort Worth Bank and Trust, a 1988 decision which seemed to permit a disparate impact case any time an employer's promotion practices were subjective (which was every employer) and there was a disparate impact (almost every employer).

For the short term, I think the focus will shift back to individual law suits and plaintiffs, or more aptly, the plaintiffs' bar, will regroup and decide what avenues there are left to pursue cases within a class framework. 

Although this case does not deal with the Fair Labor Standards Act and the collective action it permits, which are outside the purview of Rule 23, much of what the Court said could clearly be applicable to the way such cases are now being certified and handled.  I think you can start seeing Wal-Mart v. Dukes cited to district courts in FLSA cases starting today. What I will be looking for is when the district court cases start citing it back.

Here are a few of the early reports on today's decision:

While I Am in the Land of Aloha, the Legislature Permits Guns on Employer Parking Lots Premises

I am vacationing on the Garden Island, but taking some time tonite to catch up on what's been going on. When I left Texas the legislature was still in session, although I thought all the economic problems would keep them from doing too much mischief potentially harmful to employers.

But I was as wrong about that, as I was right about how great Kauai would be.

While I was playing, Russell Cawyer at Texas Employment Law Update was posting on the passage of S.B. 321, which puts Texas in company with those states which prohibit employers from barring employees who are licensed to carry weapons from having them in their locked cars in the employers parking lot. There are a couple of exceptions, but they are not going to pick up many employers. Like other states, there is indemnity protection for the employer, although there is that troublesome exception for "gross negligence."

I am not a fan of these laws, although I can't say that I can post of any adverse consequences that have occurred in other states. Hopefully, I won't have occasion to update this post in the future with such a report.

Aloha.

Successive Copper Thefts at Churches

Successive thefts of copper objects from church buildings in Manchester, New Hampshire and Vieux Longeuil, Canada (located near Montreal) should prompt authorities to examine whether the crimes are related. Meanwhile, churches should take measures to guard against copper thieves.

Copper prices have increased in recent years, prompting criminals to steal the metal. WMUR reported that thieves hit St. Anne's church in Manchester on June 2, stealing a cross on the roof. Meanwhile, CJAD radio described how St. Anthony Padua co-cathedral in Longeuil suffered the loss of a copper statue. St. Anthony's was also the target of copper thieves in May when another statue and parts of the roof were stolen during two separate incidents. The two churches are located about 275 miles apart.

Sources:
http://www.wmur.com/news/28120869/detail.html#COMMENTTOP

http://www.cjad.com/CJADLocalNewsEntry.aspx?BlogEntryID=10243552

Protecting Against Internal Theft II

Last blog entry I wrote about the issue of internal theft at museums and cultural institutions. Because protecting against this risk is so important--next to protection against fire--the point should be raised again.

Today the El Paso Times reported that a former senior secretary of the El Paso Museum of Art was convicted and sentenced to incarceration for her role in stealing over $100,000 from the museum foundation. The lesson once again is that policies and procedures should be installed at cultural institutions to guard against such mishaps, which can be avoided through simple planning.

Wessex 100 Cyclosportive. Somerset and Dorset Sunday 29th May 2011

On the late May bank holiday weekend, Pendragon Sports organises a 3 day cyclosportive event running a loop out and back in different directions each day from Somerton.  As I blogged last year I am full of admiration for those who do three days.  I cheat and do only the second day which heads south to the Dorset coast and back.
There was a stiff north westerly wind which blew us down to the coast but then slowed progress on the return leg.  Following the start, a fairly large group formed and this started to split on the steady climb out of Sherborne.  I put in the effort to cross the opening gap and stick with the front group.  This was probably a mistake as I ended up putting far too much effort in too early.  I knew that the climb out of Cerne Abbas would be a point at which I could well get dropped so I passed straight through the first feed (which at 30 miles was too soon for my needs anyway) and tackled the hill at my own pace.  The group passed me as I neared the top.  I had thought I might hang on until the hill at the coast on the Lulworth army firing range but I actually got dropped a little earlier than that on the more modest climb out of West Lulworth.
After getting to the firing range on my own, I enjoyed taking the bigger hill with the views of tanks and their targets, Poole Harbour and finally open sea.  At the top I took a quick break and another rider caught up so we two-upped to the spectacular ruins of Corfe Castle.  Here we were caught by the next group who provided well needed shelter as we turned into the wind to head towards Wareham and the first feed where we stopped for 6 minutes enjoying sandwiches, pasties, pork pies and sweets (certainly the best food I have encountered on a cyclosportive).  This group was well organised doing one mile turns at the front in rotation.  We were now 66 miles in and as I led out of the feed I  indicated I would not be able to do a mile - so we settled on one minute turns, which worked well for the next 15 miles or so to Milton Abbas.
We took the long relentless drag from there up to Bulbarrow Hill at a sensible pace altogether though I was by now definitely flagging.  At around 90 miles there was another feed.  All bar me stopped, I wanted to press on gently.  This I did and when the group came by me I did not have the energy to latch on.  I spent the last 29 miles of this 119 mile ride on my own, towards the end the next group came by me but by this stage I could only watch them flash by and limp to the finish.
Two years ago, on this event, I got a Gold, last year a Silver and this year a Bronze.  These results mean little and do appear to be subject to significant vagaries and some subtle differences in route and less subtle differences in weather from year to year.
'Officially' the route was 117 miles and my time 6 hours 32 minutes
Stats from my Garmin were 119 miles in 6:24 with an average speed of 18.5 mph.  Apparently I hit 43 mph somewhere.
A great ride, I will certainly be back though I suspect I will be sticking to one day; the following morning a repeat challenge did not seem an appealing prospect and not only because of the rain.  Those that do the three days are hardy indeed.

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