Cycling Infrastructure

Here is an interesting arrangement that I discovered cycling down the A30 in Hampshire between Camberley and Basingstoke.  This piece of road used to be an important trunk road.  I can just remember being driven up and down it to and from Dorset as a young child.  However since the M3 was constructed running parallel and only a mile or so to the south then, like a lot of old trunk roads, it lost its importance along with most of its traffic.
What a great opportunity to use some of this space for long distance cycle routes.  You could easily use one carriageway for bicycles and one for motor vehicles; alternatively one lane in each direction could be a high quality wide cycle lane.
However cyclists were obviously the last thing on the mind of the Highway Engineer who designed this.  I was cycling down here with a lorry behind.  I had no wish to hold him up but the 'blanking off' of one lane with projecting keep left traffic islands meant there was no way he could get by.  To give the driver his due he was not a road rage moron and he waited patiently until the end of the previously dual section before he could get by.
This scene to me just typifies want of thought and wasted opportunity.  Useful cycling infrastructure could be set up here and on roads like it at minimal cost.  It is not that we do not have the space for infrastructure; we do not have the will.
Further up the A30 east of Staines, money has been wasted painting a cycle lane onto the pavement with give way markings at every junction and crossing point.  Nobody will use it and motorists will wonder why not.
You can glimpse some of this exciting new infrastructure (and maybe some of the reasons I will not be making use of it) on the left in this footage.

Arbitration As Protection Against Class Actions

Today the Supreme Court gave a powerful tool for employers to avoid collective and class actions when it overturned the 9th Circuit's decision in ATT Mobility LLC v. Concepcion (4.27.11) [pdf]. Justice Scalia writing for a sharply divided court, split on the now familiar lines, rejected attempts by states (in this case California) that would prohibit arbitration agreements which prohibit class treatment of claims.

Here, it was a consumer agreement under a system that could hardly be called unfavorable to the individual, in fact the district court had found that the individual couple who were attempting to lead a class action over the purchase of a phone, were undoubtedly better off in arbitration than as members of a class action that would last several years and likely result in a nominal payment to class members.  Still to be fair, it is also hard to argue with the point made by Justice Breyer in dissent that it is unlikely that many lawyers would have been interested in taking such a case on an individual basis.

On first blush, given the rage of FLSA collective actions and the desire for larger systemic class actions reflected by the Dukes v. Walmart case, every company that does not have in place a requirement that all disputes be settled by arbitration, and in that arbitration agreement, a provision that prohibits class treatment, will now be considering it again.

This is not to say that arbitration is a panacea ---the cost advantage is being lost as more and more arbitrations are proceeding just like a lawsuit that is being litigated in court, and the lack of any ability to effectively appeal the decisions is a serious danger,  both of which have to be weighed against the risk of large collective or class actions.  What today's decision permits is a re-calculating those odds with more certainty that you can accomplish the aim of defusing collective/class action liability if you are willing to pay the price of accepting the downsides or arbitration in individual cases.

Everyone has and continues to wait with concern the Court's decision in Dukes v. Walmart, which offers the Court an opportunity to put parameters on broad scale class litigation if it wishes.  It might be argued that today's decision augurs well for the employer community on how that case may turn out. Many employers may well wait until July when that shoe drops to do the recalculation between barring class/collective actions via arbitration or continuing to take their chances in the court system. Assuming the Court decides that case fully, it should at a minimum give even more certainty when making that calculation.

Besides companies engaging in that rebalancing, the other thing that is likely to happen is renewed talk about passage of the Arbitration Fairness Act, which would ban pre-dispute arbitration agreements between employers and employees (and also with consumers and in franchise agreements.) It seems unlikely that bill will pass during this Congress, but the there will surely be more discussion.

If the American Arbitration Association were a traded stock today, its price would be soaring.

Court of Appeals Decides Rubin v. Islamic Republic of Iran

The matter of Rubin v. Islamic Republic of Iran continues to wind its way through the federal court system. On March 29, 2011 the Seventh Circuit Court of Appeals issued a 41 page ruling in this complex case.

Deadly terrorist attacks in Jerusalem injured Jenny Rubin and several other Americans in 1997. Hamas carried out three bombings, receiving support from Iran. The American plaintiffs sued Iran in federal district court in Washington, DC and won a $71.5 million default judgment after Iran failed to appear in the case. Since then, there has been an effort by the plaintiffs to recover the judgment.

To retrieve the multi-million award, the plaintiffs filed legal paperwork in Illinois—through a process known as attachment—to seize two collections of antiquities located at the University of Chicago’s Oriental Institute. The cultural property includes the Persepolis and Chogha Mish Collections. The Oriental Institute excavated these Persian artifacts during the 1930s and 1960s, and it has maintained possession of them through a long-term academic loan. The museum says that it is ready to return the Chogha Mish objects to Iran. The plaintiffs also seek to attach a collection located at the Field Museum of Natural History in Chicago known as the Herzfeld Collection. The Field Museum purchased the Herzfeld objects in 1945, but the plaintiffs say that these artifacts were stolen from Iran during the earlier part of the twentieth century before their sale. The Field Museum continues to assert ownership of these antiquities while Iran does not make any claim to them.

The case triggered a dispute about how the federal Foreign Sovereign Immunity Act (FSIA) works. That law declares that a foreign state’s property located in the United States is immune from attachment. However, proving a statutory exception can defeat this immunity. If immunity is lifted, then a plaintiff can attach a foreign state’s property to satisfy a court judgment. The FSIA’s passage in 1976 was both a codification of and limitation on the longstanding legal principle that foreign nations are generally immune from court actions.

The plaintiffs litigated the case in the federal district court of the Northern District of Illinois, and Iran remained absent from the proceedings. When the magistrate judge ruled that only a foreign nation can claim sovereign immunity to its property under the FSIA--not a museum--Iran entered the case as a party to claim immunity. Together the Oriental Institute, the Field Museum, and Iran argued that the plaintiffs could not attach the cultural property contained in the three collections because of the immunity protections afforded by the FSIA.

After Iran entered the case as a party, the plaintiffs filed a motion for discovery to compel Iran to detail all its assets held in the United States, not just the cultural property located in Illinois. Iran objected to this request, but the district court magistrate judge sided with the plaintiffs. Iran filed an appeal with the Seventh Circuit Court of Appeals as a result, prompting the United States government to enter the case as a friend of the court (amicus curiae) in support of Iran’s position.

The Seventh Circuit considered the following questions.
1. Was the foreign state absolutely required to appear in federal court to activate the immunity protections given by the FSIA?

2. Does the FSIA protect a foreign state from broad discovery requests requiring it to give an accounting of all its foreign assets in the United States?

The district court answered yes to the first question and no to the second question. But the federal appeals court strongly criticized the lower court’s decision, calling its ruling “seriously flawed.” The Seventh Circuit wrote:

“The district court’s approach to this case cannot be reconciled with the text, structure, and history of the FSIA. Section 1609 of the Act provides that 'the property in the United States of a foreign state shall be immune from attachment' unless an enumerated exception applies. (Emphasis added.) This section codifies the longstanding common-law principle that a foreign state’s property in the United States is presumed immune from attachment. This presumptive immunity, when read with other provisions of the FSIA, requires the plaintiff to identify the specific property he seeks to attach; the court cannot compel a foreign state to submit to general discovery about all its assets in the United States. The presumption of immunity also requires the court to determine—sua sponte if necessary—whether an exception to immunity applies; the court must make this determination regardless of whether the foreign state appears.”

The case has been sent back to the district court, and the lower court must now handle the case consistent with the decision by the court of appeals.

The complete opinion can be found at http://www.ca7.uscourts.gov/fdocs/docs.fwx?caseno=08-2805&submit=showdkt

Arbitration (Awards) Not Necessarily Private in Texas

Thanks to Professor Ross Runkel for calling my attention to a case decided in my own backyard, McAfee, Inc. v. Weiss, (Tx. App. - Dallas 3.16.11), which held that a trial court's refusal to seal an arbitration opinion and award  attached to a motion to confirm the award was not an abuse of discretion.

If you are not aware of the several excellent publications Ross has, you should be. This one was in his Arbitration Law Memo March 2011.

The case turned on an application of Rule 76a of the TRCP which deals with the sealing of records. Since one of the benefits of arbitration is privacy, this is an interesting twist.

The case was only decided a couple of weeks ago, so it is possible that this is not the last word as the full Dallas Court of Appeals might be asked to reconsider, or even the Texas Supreme Court.

Since the Texas Rules of Civil Procedure, including the sealing of documents, are promulgated by the Supreme Court and that Court, through its decisions has been a strong proponent for arbitration , it poses an interesting policy issue for them.

It could be addressed through a case like this one, or addressed through the rule making process. However, it is addressed it does seem worthy of serious focused review between two worthy goals, alternative dispute resolution and the open court proceedings.

Download the federal government's forfeiture complaint against the St. Louis Art Museum from the News and Events box located at the link below

http://www.culturalheritagelawyer.com

US Attorney Takes the Offensive in SLAM Litigation by Seeking Forfeiture of Egyptian Mask

Last month the St. Louis Art Museum (SLAM) sued the US government to claim ownnership of the ancient mask of Ka-Nefer-Nefer. The US government yesterday sued to forfeit the mask.

Fearing that federal authorities could seize the Egyptian mask of Ka-Nefer-Nefer, SLAM filed a preemptive complaint on February 15 to have a federal district court declare that the mask is the museum’s property. US Attorney Richard Callahan responded on March 16 by initiating a lawsuit against the mummy mask.

In a complaint titled United States v. Mask of Ka-Nefer-Nefer, Callahan petitions a Missouri federal court for forfeiture of the ancient object pursuant to 19 U.S.C. § 1595a. That statute permits officials to seize and forfeit items that have been illegally stolen, smuggled, or clandestinely imported into the United States. Callahan also asks that a restraining order be placed on the mask so that it remains available while the court case progresses.

In its petition for declaratory judgment, SLAM argues the following points:
• The museum conducted thorough due diligence before purchasing the mask on April 3, 1998.

• “The Museum’s investigation revealed no evidence that the Mask was owned by Egypt under applicable Egyptian law at the time of excavation, that the Mask was stolen from Egypt, or that the Mask had unlawfully entered the United States.”

• “The United States government cannot show probable cause the Mask was ‘stolen, smuggled, or clandestinely imported or introduced’ into the United States.’” Therefore, the mask cannot be seized or forfeited under 19 U.S.C. § 1595a.

• If the mask was stolen, the United States government is barred by the statute of limitations from seizing or forfeiting it because federal authorities had information more than five years ago “sufficient to discover the alleged theft of the Mask from Egypt.”

It should be noted that SLAM’s court complaint is hesitant to admit that the mask is stolen property. At best SLAM remarks that the mask may have been “allegedly stolen.”

The US Attorney’s complaint, by contrast, argues a more forceful claim, detailing why the mask is known to have been stolen. An excerpt from the government’s complaint is reproduced below:

“In 1952, Egyptian archaeologist Mohamed Zakaria Goneim, working for the Egyptian Antiquities Service, excavated the mat burial of a 19th Dynasty noblewoman named Ka-Nafer-Nafer inside the funerary enclosure of the 3rd Dynasty king Sekhemket at Saqqara. The Mask was placed in storage in the Sekhemkhet magazine, also located at Saqqara, where it was registered as the property of the Egyptian Antiquities Service and where it remained until 1959. In July of 1959, the Mask and four other items from Saqqara were packed for shipping to the Egyptian Museum in Cairo in preparation for an exhibit in Tokyo. The packing list identified the Mask as registration number 6119 and packed in box number six. The Mask was received by police guards at the Egyptian Museum in Cairo on July 28, 1959. Ultimately, the Mask did not travel to Tokyo for the exhibit. The Mask remained in Cairo, Egypt until 1962 at which time the Mask was transferred back to Saqqara. In 1966, the Mask and other objects from the same burial assemblage were removed from packaging in Saqqara and given to the Egyptian Antiquities Organization Restoration Lab located in Cairo in preparation for future display. The Mask traveled to Cairo from Saqqara in box number fifty-four. This was the last documented location of the Mask in Egypt. In 1973, the Egyptian Museum in Cairo took an inventory of all the objects that traveled in 1966 from Saqqara to Cairo in box number fifty-four. It was discovered at that time that the Mask was missing. The register did not document that the Mask was sold or given to a private party during the time frame of 1966 to 1973. In or around 2006, the Egyptian Supreme Council of Antiquities became aware that the Mask was accessioned by the Saint Louis Art Museum located in Saint Louis, Missouri for approximately $500,000.00 in 1998. Subsequently, the Secretary General for the Egyptian Supreme Council of Antiquities sent letters and documentation to the Saint Louis Art Museum detailing the history of the Mask and requesting its return to Egypt. To date, the Saint Louis Art Museum has refused to return the Mask.”


The US Attorney’s office describes the mask’s source of discovery and its subsequent provenance. Should these claims be proven by the government, SLAM may find it difficult to maintain its dual and nuanced positions that either the mask may not have been stolen, or that the museum's investigation “revealed no evidence that the Mask was owned by Egypt under applicable Egyptian law at the time of excavation, that the Mask was stolen from Egypt, or that the Mask had unlawfully entered the United States.”

If evidence of the mask’s stolen character is proven by the government, SLAM might also have to revisit its February 14, 2006 position, reproduced in the museum’s legal complaint, “expressing its willingness to return the Mask to Egyptian authorities upon verifiable proof the Mask was stolen.” Any thought about returning the mask may have vanished, however, now that SLAM has argued that the statute of limitations forbids authorities from seizing or forfeiting the mask.

Knowing the statute of limitations claim asserted by SLAM, the US Attorney’s recent legal action does not address the issue at all. SLAM’s court petition points to episodes where federal officials directly or indirectly possessed knowledge to take action to investigate the possible illicit provenance of the mask. It remains to be seen how the federal government will take on this argument when SLAM inevitably raises the claim in its response to the government’s forfeiture action.

Omega Circuits Mountbatten

I headed down, with a teammate to Portsmouth for this 3rd cat race. My first time here, and first time with any kind of banking. Odd to just fly into a corner and let gravity take you around.  There was a quite promising early break of 4 but that got reeled in, then a solo break got nowhere, then another break of around 5 went.  As soon as they came back the pace slowed and I went for my jaunt off the front. I thought maybe it was cunning to go up the bank and slingshot down again; this apparently caused merriment in the bunch and delayed the organisation of a chase until I had been out there for a few laps.  Then it was altogether for the last several laps and the bunch sprint with me on my teammate's wheel at the rear.
22.74 miles in 53:39. Average 25.4mph max 31mph
Saw ex-teammate Harry down there in the Elites' race and left him in a 3 man break which had a comfortable half lap over the field.  He always makes it look so easy.