An ongoing discussion of politics, law, pop culture, and fine draperies.

Friday, June 30, 2006

"An Inconvenient Truth" Goes Midcoast

The Line to Get In To See A.I.T. at the Colonial in Belfast

film finished its run at Belfast's Colonial Theater, where the Belfast Common-er reported that the lines were long to get in. The reels headed south this week. The Bayview Street Cinema in Camden shows the global warming pic from June 30 through July 6.

The Rockland
Strand Theater will run the movie from July 16-25, and will co-sponsor a discussion about global warming before and after its July 17 showing along with the Natural Resources Council of Maine. The Brunswick Times Record favorably opined on a similar event at that city's Eveningstar Cinema.

Not everybody is fired up about the Midcoast's embrace of the Al Gore vehicle, as evidenced by this
grumpy opinion. I submitted a response, which will hopefully run in Saturday's Courier-Gazette. If not, I may post it here.

Update: I just saw my letter on the Courier's website, which should be accessible here. After Tuesday, July 5, here

In other news …

These folks just love poodles!

Mother Jones' Norman Ornstein thinks
Congress is corrupt. Imagine that!

E.J. Dionne
likes Barak Obama

Joan Vennochi, news columnist for the Globe,
LOVES Big Papi.

These guys with
The Weekly Standard try to talk European while thinking Southern, urging that soccer is nihilistic and should be avoided at all costs. Too bad the rest of the world doesn't mind the absence of high scoring results. Speaking of …

World Cup has its quarterfinals this weekend, and Americans surprisingly seem interested. It can't hurt for the appeal when media outlets find interesting angles like this. Back to the field, here's Washington Post's blogman on the scene. NPR has a pretty good page too. None of them have anything on The Weasel, who continues to provide key insight into the Event. American Public Radio's Marketplace also warrants a link, although its chief dude is decidedly pro-Brazil. I note that this fan is swaying me in that direction, with the help of this recently converted German. Jeez, what a male pig I am! Heh heh!


The Red Sox are uncharacteristically winning games by
playing small ball, with last night' Coco Crisp dropped a perfect bunt for a single, proceeded to steal second, advance to third on Alex Gonzalez' ground-out, and scored the go-ahead/winning run on a Kevin Youkilis sac fly. Crisp later went horizontal to save a run on this 8th inning drive off Mike Timlin. As Curt Schilling noted, "The game was an instructional video. Moving runners over. Defensive plays, fundamental baseball. I thought it was incredible. Nobody made a mistake."

NY Daily News'
John Harper thinks the Red Sox sweep of the Mets affects the Yankees more than the NL cross towners. The NY Post's Mike Vaccarro thinks that the Red Sox-Mets series and upcoming Mets-Yankees series are likely prelude to what we'll see this post-season.

Wrigley Mania! – so gripping, you need to bring a book

The Chicago Tribune's Rick Morrissey looks to
this weekend's Cross-Chi-Town Match-Up with foreboding as a Cubs fan. Great headline – For you, Smith Bros! The Sun-Times' Rick Telander gets goofy and predicts a miracle. Oh, and to wrap-up All Things Chicago, Jay Mariotti still hates Ozzie Guillen. Out of Towner Gwen Knopp also thinks the Wizard of Oz is a bigot, but without the comedy usually imparted by Mariotti. Too bad.

Also of note, Manny appears to have changed his mind about Boston, and
declared that he wants to end his career as a member of the Red Sox. While I won't rule out him changing his mind by mid-July, I like the sound of this. Hopefully, John Henry and his posse do, too.

Jon Papelbon picked up his 24th save of the season in 26 tries, tying the Red Sox rookie record set by Dick "The Monster" Radatz in 1962. The always lovable White Sox manager Ozzie Guillen is expected to name Papelbon, along with Schilling, to the A.L. All Star pitching staff.

Jon Lester
picked up his third victory in as many outings, Tuesday.

That ought to do it for this weekend. Off to Western Maine, where we hope to attend
this festival, hike around here, seek out some of these places which look like this from up high, look for this guy's cousins, and otherwise relax. Should be fairly key.

Quick hits

Terry Gross, of NPR's "Fresh Air,"
interviewed a doctor who is linking global warming with an upsurge in asthma, allegies, and tropical diseases.

Here's an analysis of a
Barbara Merrill for Governor ad, with some curious hints about Merrill's likely impact in the fall campaign.

The Patriots's gamble in trading for troubled d-lineman
Johnathan Sullivan appears to be off on the wrong foot, as the big feller appears to have an affinity for the wacky weed. Frankly, I blame the misplaced "H" in his first name.

Here are a few takes on the Guantanamo military tribunals decision by the Supreme Court yesterday: NPR lists
a bunch of quotes; American Constitutional Society Blog;; Washington Post says A Governing Philosophy Rebuffed; a blog-chat about Gitmo through a Rove-ian lens; Crooks and Liars explores the Clarence Thomas as Chickenhawk theme; NPR "writer" Tom Bowman is curious what will happen to the detainees today.

The ABA journal says
this about Gitmo; this about the death penalty; and this about Texas gerrymandering.

NPR has all kinds of Supreme Court stuff, mostly by
The Nina: ATC main story on Gitmo. Talk of The Nation featured a talk with Neal Katyal, lawyer for Gitmo prisoner Salim Hamdan, LA Times' David Savage, and former Reagan and Bush I administration policy guy David Rivkin.

the President responds to Gitmo ruling; The Nina explains the Texas redistricting ruling; Nina says conservatives demand more nominees; Day to Day's Dahlia Lithwick does Gitmo here and Texas Redistricitng here; Day to Day Texas analysis here. Talk of the Nation hit the Texas case here.

Diana Rehm's
weekly news round-up with EJ Dionne, WSJ's John Harwood, and BBC's Justin Webb was Supreme Court heavy today.

Dahlia Lithwick and Walter Dellinger
chat about the Supreme Court's entire term in kinda cutesy, he-said, she-said thing for Slate. Joan Biskupic returns from her self imposed exile and posts this wrap-up in USA Today.

The American Prospect's Tracie Powell
doesn't like the Texas ruling.

Well, darling, it seems like we're going to have to get used to it.

Wednesday, June 28, 2006


HTML ... Piece of Cake.

I finally figured out how to have hyperlinks open in a new window. For example, say I want you to see
this lovely picture in connection with some kinda subliminal message I hope to inject into your mind.

Up until about 15 minutes ago, this gesture would have bogged-down in my amateur-hour attempts at Fine Bloggery, forcing you -- my reader -- to open the link in the same window as the blog, thereby requiring all kinds of "back" and "refresh" and other button-clicking expeditions.

Dare I say, "You Deserve Better!"?

I think so.

So here it is -- welcome to the Brave New World I enter on your behalf, filled with target="_blank" beauty. Remember, in the words of Bryan ... no,
Mr. Adams, "Everything I do ... I do it for you."

Environmental Protection: Two Stories

I found two good blog postings about the state of environmental protection, focusing on two issues that show the difference that a little effective media attention can make in capturing the public's imagination.

The Nation's editor, Katrina vanden Heuvel, posts this piece entitled
Sweet Victory: Waging War on Emissions, which implies that America is finally coming around on global warming. She points to the opening week's box office success of An Inconvenient Truth as solid evidence. Its first weekend didn't yield the kind of cash drawn by Nacho Libre or The Fast and Furious XXXIV but most commentators are impressed by the receipts. A Blogger on Treehugger says, "We don't expect a film based on a slide presentation to outdo Hollywood's summer blockbusters at the box office, but we're happy to see that An Inconvenient Truth is doing well so far."

Global warming expert Jim Hansen, in
The New York Review of Books asks, "Is it possible for a single book on global warming to convince the public, as Rachel Carson's Silent Spring did for the dangers of DDT?" and then notes that while Gore's past attempts to stir the public about global warming "subjected him to ridicule from other politicians and cost him votes,
By telling the story of climate change with striking clarity in both his book and movie, Al Gore may have done for global warming what Silent Spring did for pesticides. He will be attacked, but the public will have the information needed to distinguish our long-term well-being from short-term
special interests.

Makes you feel optimistic, no?

The other topic does not boast the benefit of having a large scale media event, involving a phoenix-like former presidential candidate buttressing its place in the public attention.

Mother Jones dot net features
this piece titled "The Cost of Superfund Neglect."

You don't see protests like this anymore.

Flip over for a nice primer on Superfund history, as author Bradford Plummer says it much more succinctly than
a certain former law student ever did. Even still, I defer to that former student's overview of the Comprehensive Environmental Response Compensation and Liability Act, affectionately known as the Superfund Law:
CERCLA established a means for responding to releases of hazardous waste into the environment, requiring those responsible for pollution to remediate their sites and providing money to clean up sites where the responsible parties are difficult to identify or isolate. The cornerstone of the original act was the establishment of a fund from which the federal government could ensure that money would exist to pay for the cleanup of all polluted sites, irrespective of their ownership. Revenue for this fund, dubbed the “Superfund,” largely derived from taxes imposed on corporations whose actions have historically generated most of the country’s toxic waste – namely, the oil and chemical industries.
Today, environmentalists view CERCLA as a statute under siege and one whose effectiveness has been stymied by the elected officials the chemical and fossil fuels lobbies have helped reach office. Most profoundly, Congress has refused to reauthorize the tax since 1995, sapping the Superfund’s coffers “from a high of $3.8 billion in 1996 to a projected $159 million at the end of 2003.” As a result, the administration of President George W. Bush is proposing cleanups at polluted sites “at a much slower rate than previous administrations . . . mask[ing] the true demand for cleanup in the country.” See Jennifer 8. Lee, Drop in Budget Slows Superfund Program, N.Y. TIMES, March 8, 2004, at A23. Moreover, the 2004 Superfund budget solely tapped general tax revenues in lieu of the industry taxes, marking a shift in responsibility for cleanup costs from polluters to the general public.

Love-ly Landscaping …

Plummer recounts the successful clandestine effort by the 1990s Republican-led Congress and Bush Administration to
systematically undercut the law's liability enforcement scheme and underfund the money required to clean-up "orphaned" toxic waste dumps where the public health is endangered. However, he notes the more menacing news that:
… now the Center for American Progress has recently come out with a 182-page report describing, in gory detail, the 50 worst NPL sites that have been neglected due to the gutting of Superfund. … Between 200,000 and 800,000 people live within a mile of these toxic sites, and are exposed to chemicals in the air and soil. Perhaps needless to say, those people are disproportionately low-income and minority. When people talk about "environmental racism," this is what they have in mind.
Most glaring of all, many of the sites have languished on the NPL even though a responsible party has already been named—often a viable, profitable business that could certainly afford to clean
up its mess. For instance, a 75-acre toxic waste site in Bergen, NJ, where 4.5 million gallons of liquid waste were dumped in unlined lagoons, is owned by Honeywell, which made $1.2 billion in profits last year. But nothing has happened because the EPA under Bush won't enforce a cleanup.
Tangent Alert: Here's
an interesting webpage photo tour I found, where a guy posted a bunch of photos of present day Love Canal, in all of its ghastly bliss. Eerie is right!

Anyway, Plummer links to
this 2005 report from the Center for American Progress that documents the state of those 50 worst National Priorities List sites. But that was from 2005. In the oft-repeated words, "Where's the Outrage?"

I suppose it's stupid to expect too much from the same set of countryfolk to whom
watching TV on the couch is more appealing than a National Park visit

Better than Acadia?

It's worth noting that the media are reporting the blistering news that
a National Research Council report released last week reveals the earth getting hotter, faster. The Detroit FREEP was pissed enough to make it a lead editorial. Here's the San Francisco Chronicle's take on what's called the Hockey Stick Graph.

Even with the report, and all of its colorful sports-centric graph names, the public needs a bit more visual gore before it was going to get crazy and demand action. So long as the box office numbers hold up, it appears that
Gore could be the deliverer of that all-too-necessary gore.

The Paralegal of my dreams …

I guess we need an "Erin Brockovich II: Chemical Boogaloo" to land on the big screen before the public will realize how bleak our federal toxic waste control and clean-up outlook appears.
Is Julia Roberts busy?

Tuesday, June 27, 2006

The Supremes to Cover CO2

Huge! The Supreme Court is
going to decide whether Carbon Dioxide is a pollutant under the definitions of the Clean Air Act. The Court decided yesterday to resolve the question, which was posed by a lawsuit brought by a coalition of states and environmental groups against the Environmental Protection Agency. Maine Asst. Attorney General Jerry Reid told Blethen Maine reporter Bart Jansen that:
This promises to be the most important Clean Air Act case the Supreme Court has ever heard. It's very clear that emissions of carbon dioxide are posing a threat to public safety and welfare, and that's exactly what the Clean Air Act is designed to do.

I described the suit in a different context here.

In short, the Clean Air Act imposes limits on the volume of "pollutants" that can be emitted from "sources," which include smokestacks, car and truck tailpipes, and any number of other things that release the pollutant into the ambient air. To be a pollutant, the substance must be linked to a source and must present a threat to the "public health or welfare."

There are presently
six pollutants regulated by the EPA – carbon monoxide, soot, ozone, nitrogen oxides, sulfur dioxide (the acid in "acid rain"), and lead.

States must set the limits for each of the "criteria pollutants," based on
federal guidance, and sources within the borders of each state may not emit more of each pollutant than the limits allow without breaking the law and becoming subject to civil penalties.

The first five listed pollutants were named by EPA within a year of the initially passed Clean Air Act in the late 1960s. However, EPA was forced, against its will, to establish criteria for and regulate airborne lead in the 1970s after a group of states and environmentalists forced its hand.

The U.S. of Appeals for the D.C. Circuit, which hears most federal regulatory lawsuits, ruled for the states, finding that Lead was a pollutant, as that term is defined by the Clean Air Act, and that EPA could not shirk its mandatory duty to regulate it.

The states, of which Maine is one, argued that Carbon Dioxide's effects on public health and welfare – i.e. global warming and all that flows from it – is no less harmful to public health and welfare than airborne Lead did in the 1970s. The trial court agreed with the states; the appeals court, led by America's most huggable uber-conservative, David Sentelle, reversed.

Most Huggable, while Honorable?

The Washington Post's story is
here; the L.A. Times' story is here. The Post's layout editors were clever enough to run this science-based story at the same time, which notes that, "The warming around Earth's tropical belt is a signal suggesting that the climate system has exceeded a critical threshold, which has sent tropical-zone glaciers in full retreat and will melt them completely "in the near future…"

NPR's Day-to-Day commentator
Dahlia Lithwick touched on the case in her Monday Supreme Court wrap-up.

The New York Times' Michael Janofsky observes that:
Beyond its effect on federal policy, the case holds important implications for California and 10 other states that have assumed that the Clean Air Act authorizes regulations for carbon dioxide and other gases and have adopted their own stringent limits for automobile and truck emissions. The state laws, scheduled to go into effect for the 2009 model year, have been challenged in court by automakers.

A ruling by the Supreme Court could influence another case currently before the same appeals court, involving many of the same plaintiffs. They are arguing that the E.P.A. should also regulate carbon emissions from power plants.

Scheduling for the October term should be released once the Court returns from its summer recess.

Monday, June 26, 2006

Jessup … fetch me my musket!

I heard a decent NPR piece the other day about how you can identify where all Americans learned to talk based on how they pronounce a handful of words. It's based on a study by these academicalish types who developed the thesis and were good enough to make it fun … you know, for kids. I found it wicked awesome, as my giggles nearly knocked me off of Route (roooootttt!!!) 17.

One bone to pick –Indiana-types, i.e. "ones who Hooszch," according to the interviewee, Mr. Beard, Ph.D., have "no accent" or weird pronunciations … Come now. I lived there for five years and their speech-isms drove me to drink … wait, perhaps I didn't need much help on that score. Anyway, point made … Indianner-types talk funny, too.


Hoosiers who derive from outside of
the Indianapolis suburban donut, but also outside of the Indiana part of Chicagoland – basically, folks who come from area codes 812 and 765, and some of 317 – systematically fail to pronounce the first consonant in any directional noun following "up" – i.e. "Up 'ere," "Up, 'ere," etc. They also take the casual habit of ending sentences with prepositions, which many Americans suffer, and elevate it to a form of bad art – i.e. "Where are you going to?" "Come with," and "Where are you at?"

One of 'em 812 fellers out protestin'

Half of America's radio personalities seem to have roots in Indiana, and
David Letterman and Jane Pauley aren't the only TV successes (note the always lovely Mark Cuban …) who tear up when Jim Nabors sings "Back Home Again In Indiana" before a certain famous 500 mile face. Yet, Indiana-speak is far too filled with peccadillos such as I list to deem its talkers as "accent-free."

Incidentally, I am a nephew to my
I enjoy Babbling Brooks, whereas a
Creek is a sound the floor makes.
Sandwiches of lore are Italians or Subs (you can take the kid out of Mass., but not the Mass. out of the Kid.)
wear sneakers (a favorite point of mockery for my Hoosier wife), and would wear puh-jahhh-mas if it wasn't such a fuss.
drink soda (while my parents drank tonic), and ask Third Bass about Pop

Yet, I have absolutely no response to
the minority view of doing donuts. Yes, the upper mid-west is a strange, strange place.

Whipping Shitties?

Wednesday, June 21, 2006

Wetlands decision mired in muck, quagmire, goo

Photo Courtesy of

Breathe a sigh of globally-warmed air, America. Your lakes and streams have a chance at holding off run-off and groundwater pollution for at least one more year.

An alleged wetland
Photo Courtesy of N.C. State U., Dept. of Soil Science /

Or at least, I think that’s the case.

The U.S. Supreme Court divided three ways on Monday, with a plurality of justices agreeing that the portions of the Clean Water Act providing federal authority to regulate wetlands are Constitutional. What exactly was held in the case, Rapanos v. United States, is less cause for celebration among environmentalists, but at the very least, the position espoused by Justice Antonin Scalia in
his opinion does not represent the latest take on the law.

John Rapanos: The guy who wants to kill all baby kittens, or at least dredge and fill all wetlands in Michigan so he can build Chuck E. Cheeses for suburbanites everywhere.
Photo Courtesy of the Traverse City Record Eagle /

Quick note about how fractured this case was. Scalia's opinion reads like a dissent and commands only four votes, but it's identified as the majority opinion by the Court. Similarly, the
dissent drafted by Justice John Paul Stevens reads more like a concurrence, whereas the 31-page concurrence written by Justice Anthony J. Kennedy achieves the result of typically afforded to the majority opinion – i.e. defining the law.

Does this make any sense? Try these guys:

Here's the NY Times'
Linda Greenhouse's take on it, and the accompanying editorial from her colleagues down the hall. The uber-goddess of the Supreme Court beat, NPR's Nina Totenberg, provides this audio report. The Washington Post's Charles Lane weighed-in. So did the FREEP's David Ashenfelter, who closely monitored the Michigan-based Rapanos case from beginning to end. The Seattle Times wasted no time pushing the issue to the Editorial page, challenging Congress to clear up the ambiguous language. The LA Times' David G. Savage says the same thing everyone else said, only with different commentators explaining what the opinions supposedly held. The Wall Street Journal said some things, too, but I can't link it beyond the "Free Preview" teaser because they charge money and stuff.

Oh, and for a lawyerly perspective, the ABA Journal folks agree that the opinion further muddies the question from what the Supreme Court said in 2001.

SCOTUSblog provided a forum for several laws professors to weigh in, including Georgetown's Richard Lazarus, Emory's William Buzbee, and Chapman's John Eastman.

Incidentally, as SCOTUSblog notes
here, Georgetown U. Law School hosted a panel discussion on the result Tuesday. Look for C-Span to broadcast the discussion at some point soon.

Weird Art about Property Rights

Image Courtesy of

Representing the outraged right,
the Cato Institute's Mark Moller calls the Scalia dissent, "a significant victory for federalism," clarifying:
It rejects environmental regulators’ “hydrological connection” test for federal jurisdiction over wetlands and, furthermore, requires that regulated wetlands have a continuous, standing surface connection to navigable water. It recognizes, moreover, that the Clean Water Act is at the periphery of federal commerce power
Unfortunately, the Chief Justice’s and Justice Kennedy’s concurring opinions muddy the water (bad puns not intended).

George Mason University law professor Ilya Somin wrote at
the Volokh Conspiracy that the case yields:
Much Ado About Very Little: Some observers hoped and others feared that the Rapanos case might rein in the virtually limitless theory of federal regulatory power that the Supreme Court embraced last year in Gonzales v. Raich. My preliminary reading of the Rapanos opinions suggests that such hopes and fears have turned out to be groundless. The Rapanos majority does not impose any constitutional limits on federal power. Nor does it increase protection for federalism provided by rules of statutory interpretation.

The NY Times' Greenhouse explains:
With four justices on one side arguing for a sharp restriction in the definition of wetlands that are subject to federal jurisdiction, and four justices on the other arguing for retaining the broad definition that the Army Corps of Engineers has used for decades, Justice Anthony M. Kennedy controlled
the outcome in a solitary opinion.

The Washington Post's Lane views the result more broadly, noting:
The splintered decision was the clearest sign yet that the court's long-standing ideological divisions have not disappeared with the addition of two conservative justices. It also underscored that, perhaps more than ever, forming a majority in significant cases depends on winning the vote of a single justice -- moderate conservative Anthony M. Kennedy.

That's them – the Army Corps of Engineers – getting in shape to issue permits.
Image courtesy of the Army Corps of Engineers

Congress authorized the Army Corps of Engineers to regulate, through a permitting process, dredging and filling of wetlands under the Clean Water Act. As the Post's Lane explains:
The landmark 1972 environmental legislation gave federal regulators the power to control the discharge of pollutants into "navigable waters." On the theory that what gets dumped upstream eventually winds up downstream, the government has interpreted that term to include not only large lakes and rivers but also their smaller tributaries, including some ditches or stream beds that are dry for all or most of the year and wetlands near those tributaries.
The Rapanos decision leaves some question as to the long term viability of the Corps' ability to continue demanding permit applications for dredging and filling of wetlands that have a less-obvious hydrological connection to lakes, rivers, and streams.

Justice Kennedy said that to come within federal protection under a proper interpretation of the Clean Water Act, a wetland needs to have a "significant nexus" to a body of water that is actually navigable.

Greenhouse provides that:
Under that test, regulators need not show that a wetland is adjacent to, or connected with, a navigable body of water. Rather, it is sufficient to show that it is adjacent to a tributary that itself flows into such waters.

Justice Kennedy said the Corps needed to be more specific i defining the tributaries that count for this purpose. He said it needed to identify those "categories of tributaries" that were "significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters."

The significant nexus test is not new, but reaction to it in the Rapanos decision appears to expect more than the tests' debut in the 2001 opinion, Solid Waste Authority of Northern Cook County v. Army Corps of Engineers. Notes Professor Buzbee, "While I don’t agree that any such test has existed, at least in the sense of requiring case-by-case proof of a strong connection, [Kennedy's] formulation of the test shares a fair bit of ground with the dissenters, the regulators below, and longstanding Army Corps and EPA views of how and why waters are protected."

The two cases – Rapanos and SWANCC are the deepest penetration of the New Federalism movement into the field of Environmental law. The Scalia view, which should make even devout New Federalists blush, rejected all watershed science, urging a limit to Army Corps regulation at wetlands that have "continuous surface connection" to "navigable in fact" waterways, like lakes and rivers, that are "relatively permanent, standing or flowing." Chief Justice John Roberts, and Justices Clarence Thomas and Samuel Alito joined the Scalia dissent.

Of note, NPR's Elizabeth Shogren gave
this report on the impact of SWANCC five years later. SWANCC handcuffed the Corps and basically declared open season on all marshes and swamps that are "isolated wetlands," or not effectively shown by the Corps to be hydrologically connected to lakes, rivers, and streams. It left that task to states, which have demonstrated spotty enthusiasm for undertaking such regulation and even spottier success in blocking dredging and filling of wetlands non connected to "navigable waters."

The opinions displayed an interesting flip in roles generally identified by media in recent decades, with Justice Stevens' four-justice concurring opinion accusing the Scalia dissent of "disregard[ing] the deference it owes the executive" as well as "its own obligation to interpret laws rather than to make them." The NY Times' Greenhouse observed this as "a sly reference to the slogan often heard in connection with conservative nominations to the federal courts. In effect, Justice Stevens was accusing the Scalia group of judicial activism."

Greenhouse notes, "… it was plain that something went awry in the court's handling of its most high-profile environmental case in years."

The Post's Lane reported another interesting take, from Georgetown University environmental law professor Richard J. Lazarus:
Lazarus likened the splintered decision to the 1978 Bakke case, in which four justices voted to uphold a minority admissions quota at a California medical school, four voted to strike it down, and a ninth justice, Lewis F. Powell Jr., voted to strike it down but suggested an alternative legal basis,
diversity, for other race-conscious admissions policies.

The status of Powell's opinion was debated over the next 25 years, until a majority of the
Supreme Court finally embraced it in a 2003 case.

Swell. I guess that means we wait 20 years before this clears up, unless Congress clears it up first ... which means we wait 20 years.

Friday, June 16, 2006

Image courtesy of

Listing to Starboard ...

I recently had the good fortune to stumble upon this blog produced by a guy from Belfast, 'bout 25 miles down (meaning "up and over, eastward") Route One from Arguably So HQ.

It turns out that he DJs for
WERU – a community radio station broadcasting out of Blue Hill – one night a week. I describe WERU as a college radio station without the college. Alternative Radio news runs regularly during the day, and variously formatted, locally DJ'd music shows run throughout the night.

This show, "Modern Moonlight," is about as close of a representation of my musical taste, at least with respect to rock/pop, as I've ever heard broadcast on the radio.

Anyway, the DJ took advantage of the station's pledge drive to do a "Best of" show. I tuned in at #48 of a "Greatest Alternative Rock Albums of the Last 25 Years" countdown, which was Midnight Oil's "Beds are Burning." Inspired a bit, I started to sketch out my own list, although I morphed the theme a bit into: "50 Most Influential Albums from 1980-2005." Looking back, my list largely lined up with alternative/punk music dominating with smatterings of rap, but with a minor quibble, I maintain that that all the music included is essentially rock music – i.e. the blissful merger of blues, folk, country, soul, r&b, funk, etc., etc., etc.

Anyway, I completed my list before he made it much past number 35, and yet, it lined up almost lockstep with the playlist the DJ
posted on his blog the next day, with a few slight divergences. Anyway, I felt compelled to drop him a line to share my list and consider the discrepancies.

As I shared this discussion with a handful of folks, some interesting personal exchanges ensured. Chiefly, the questions centered around stumbling with the true theme of the list. "Favorite" v. "Most Influential".

However, it is worth noting that several of my omissions, in some cases, pointed out to me by said folks, haunted me – do I include the omissions and delete something to make space? Ultimately, I resolved to pull a MLB with Roger Maris and provide an asterisk, adding enough spaces above #50 to permit listing of the seminal excluded albums. The follow below, with snippets of the exchanges that alerted me as to their omission.

NOTE OF CAUTION: The CDs are not ranked!

The CDs are merely listed in the order they popped into my head. If any significance is to be derived from the order, it's that bands of a feather are likely near each other … and I started making it as you played the Minutemen:

The Minutemen – Double Nickels on the Dime.
Husker Du – Zen Arcade (Honorable Mention: "New Day Rising")
Replacements – Tim (HM: Let it Be)
Prince – Sign of the Times
Sonic Youth – Daydream Nation (HM: Sister)
REM – Reckoning (HM: murmur)
Talking Heads – Remain in Light
Tom Waits – Swordfishtrombones
U2 – Achtung Baby (HM: The Unforgettable Fire)
The Pogues – Rum Sodomy and the Lash
The Smiths -- Queen is Dead (HM: Meat is Murder, Louder than Bombs)
Jesus and Mary Chain – Darklands
The Cure – Disintegration
New Order – Substance
Police – Synchronicity
Pixies – Surfer Rosa
The Breeders – Last Splash
Sugarcubes – Stick Around for Joy
My Bloody Valentine – Loveless
Violent Femmes – VF
Janes Addiction – Nothing Shocking
Dinosaur Jr – You're Living All Over Me (HM: Bug)
Pearl Jam – Ten
Nirvana – Nevermind
Soundgarden – Badmotorfinger
Smashing Pumpkins – Siamese Dream
Fugazi – Repeater (HM: 13 Songs)
Tori Amos – Under the Pink
Sleater Kinney – All Hands on the Bad One
Bikini Kill – Reject All American
Radiohead – OK Computer
Stone Roses – SR
Blur – 13
Beck – Odelay (HM: Midnite Vultures)
Beastie Boys – Check Your Head (HM: Paul's Boutique, Ill Communication)
Public Enemy – It Takes a Nation of Millions to Hold Us Back
Dr Dre – The Chronic
Wilco – Yankee Hotel Foxtrot
Lou Reed – New York (HM: Magic and Loss)
Red Hot Chili Peppers -- Blood Sugar Sex Magic
Green Day – Dookie
NIN – Pretty Hate Machine
Pavement – Slanted and Enchanted
Guided By Voices – Bee Thousand (HM: Alien Lanes)
Morphine – Cure for Pain
Yo La Tengo – And Nothing Turned Itself Inside Out (
HM: I Can Hear Your Heart Beating As 1/Painful)
Flaming Lips – The Soft Bulletin (HM: Yoshimi Battles the Pink Robots")
White Stripes – Elephant
The Strokes – Is This It?
Arcade Fire – Funeral

Omissions now included, with accompanying excuses/explanations:

Photo Courtesy of

1. PJ Harvey – "Stories of the City Stories from the Sea." I meant to include this one, but it slipped my mind as I proceeded through all of the cock-rock and never returned as I briefly entered Riot Grrl-ville. Meegish chastised me on this point, and later continued after noting my choice of Polly Jean CDs, to which I noted, "I hope this isn't cause for derision, as it's the only CD of hers I like. It actually has a rather hallowed status, and its accidental omission is only a reflection of my slapdash mind."

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2. Sugar – "Copper Blue." Husker Du joined the list early for me. Cajun presented me with this point: "I know you've got husker du on there, but sugar's copper blue is really good too..." To the point, and full of painful truth. This presented a tough secondary question for me, i.e. How do you deal with successor acts of Seminal bands that reached some tumultuous demise? Ironically, I had no trouble posting The Breeders, despite The Pixies' obvious place on the list. Yet, no Sugar … which is particularly strange considering I enjoy CB as much or more than either Zen Arcade or New Day Rising. Same problem requires inclusion of:

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3. Sebadoh – "III" (honorable mention: "Bakesale"). Cajun recommended, "Sebadoh is pretty good too – bubble and scrape maybe …" Perhaps posting Sebadoh should have been easier than the struggle over Sugar or the Breeders or Fugazi/Minor Threat. After all, Lou Barlow left Dinosaur Jr. to form Sebadoh (and Folk Implosion) because his footprint was gradually diminishing as J. Mascis pushed him out. The opposite was true with Bob Mould in H.D. and Kim Deal in the Pixies. And frankly, I couldn't tell you why Ian McKaye dissolved Minor Threat to form Fugazi, other than his decision to join with the Fugazi fellers.

4. Belle and Sebastian – "If You're Feeling Sinister" Nobody chided me about this omission, except my own subconscious. I've come to love this band, particularly over the last 3 years. I have a hard time settling in on a particular CD – in fact, I think their newest one, "Life Pursuit" is as good as anything they've done and breaks new ground while maintaining the classic Anglo-Drear-Bliss. For that matter, "Push Barman to Open Old Wounds," "Boy With The Arab Strap," "Tigermilk," " Dear Catastrophe Waitress" … they all have their plusses, too, But I list "If You're Feeling Sinister" because it was my first B&S and it's as good as any of them.

5. The Mighty, Mighty Bosstones – "Don't Know How to Party" I am still uncertain that this belongs here, but I think the discussion needs to be noted. Somehow, the Ska-Core movement ought to be represented, and they were as big in that subgenre as were any others – Rancid, maybe, too. I like this CD, too. Worth noting. But just because I tap my foot every time I hear Barenaked Ladies, "One Week" and "If I Had a Million Dollars" doesn't mean I should list them.

Other thoughts – disagreements over "The" CD for certain artists:

• The Beastie Boys are probably the most hotly disputed band on here, as some love Licensed to Ill (I don't) and some love Ill Communication. Perhaps I should have included the rarely invoked, but always sincere "honorable mention" status on the latter (I don't like licensed to ill …)

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• Per Meegish, in re Sleater-Kinney: " All Hands holds not even a birthday candle to One Beat (far as SK goes)." Hmmm … All Hands was the breakthrough from the edgiest of their stuff ("Call the Doctor" and "Dig Me Out") to their newer, more highly produced, musically complex, and pop-friendly stuff. Because of its bridge status, I rank it here.

• Per Meegish, in re Pixies and all things Deal: " Surfer Rosa as your top Pixies choice? And the Breeders shouldn't even be on there." Ouch. See above.

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• Per Packy, a former roommate who enjoyed disparaging indierockers of the jangly, underproduced ilk – namely, Pavement: " No Pavement? What the fuck?" As a note, I posted Slanted and Enchanted pretty high on the list. Yet, he doth protest too much … so add "Crooked Rain, Crooked Rain" and "Wowee Zowee" here. Crooked Rain was their Pop break out ("Cut Yr Hair" videos, MTV exposes on the "… out on tour with the Smashing Pumpkins …" lyric in "Range Life," etc.). Wowee Zowee is their Physical Graffiti. I say no more …

• Per AJ: "Good list, Commish (a nickname for me) but I woulda added Rage - Evil Empire or Battle for LA. And Tool - Aenima." OK. I meant to include a Rage Against the Machine CD, but I was leaning toward the eponymous first CD. And while I never dove deeply into Tool, I agree that they were seminal and that "Aenima" is the one – "Stinkfist" is one of the most intense rock songs ever and provides an amazingly most powerful combo of guitar and bass. I blame them in part for the late 90s crap-metal revival, but that doesn't take away from their importance.

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• Per Cajun: "I still think the Screaming Trees are just as good as any of thoseother Seattle bands....." and "Since they're last coupla albums were really horrible its hard to
remember how good Soul Asylum used to be. But In 1990 I was sure that
"Hang Time" was one of the best albums ever....." Duly noted, and I now express regret for not seriously considering either "Sweet Oblivion" or "Uncle Anesthesia," although I must admit that I never did the Soul Asylum thing beyond the 1993 MTV breakout, i.e. "Somebody to Shove" and "Black Gold"

Oh and that's The Replacements' Tommy Stinson playing here with Soul Asylum

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And Finally ...

• Per AJ: " This list is just for alternative/Indie/college radio type bands correct? Because Zep, Who, Stones etc … would certainly have some shyt up in there.
The Stones "Tattoo You" was 1981, AC/DC "Back in Black" was 1980, Zep "Coda" was 1980, Pink Floyd "The Wall" was 1980 and Van Halen must have something cool along with the Clash and REM?

• My Response: "Most Influential", not "Enjoyable"

The point of the distinction: Strive for an objective standard, not subjective aesthetic pleasure. It's impossible in the abstract, but the attempt is worthy.


The Rolling Stones' CDs that I would list as Most Influential were made in the 1960s and 1970s -- i.e. Let it Bleed, Sticky Fingers, Exile On Main Street.

AC DC's only Most Influential stuff is tough to pinpoint, but while "Back in Black" is probably their mainstream breakthrough, it wasn't ground-breaking. It was merely a more refined version of the stuff that was ground breaking around 1976 -- i.e. the Bon Scott stuff: "Powerrage," "High Voltage," "Dirty Deeds," "Let There Be Rock." Their impact was to strip down rock to the basics, a la punk, but without the punk-ish political connotation. By 1980-81, nothing Angus Young was doing was new.

Van Halen – again – "1984" wasn't groundbreaking. Neither was Diver Down. VH I arguably was, but it was released in ... what, 1977 or 1978.

Pink Floyd – "The Wall," maybe ... you could make a good argument for it, but I wouldn't personally include it. Definitely "Dark Side of the Moon," but not "The Wall." Not to mention that it, to me, belongs more to the 1970s than the 1980s, even if its release date was in the 1980s.

And I did include REM: Reckoning, with a Murmur "Honorable mention."

I DID NOT include any Clash .... because they didn't release anything in the 1980s that deserves inclusion. Their important stuff was release in 1976-77, i.e. London Calling. Same goes for the Ramones and Sex Pistols and Talking Heads (although Remain in Light warrants consideration) and the like. I could be swayed on "Sandinista!" which was the 1980s, but probably not – it's such a divisive album, with some saying the Reggae fusion thing was genius, and others saying it caused the band's disintegration. That said, it includes probably my favorite Clash song, "Up in Heaven." And don't give me any of that "Combat Rock" stuff. Combat Rock is to London Calling what Tattoo You was to Let it Bleed.

II would not say my list is restrictive to "alternative/Indie/college radio type bands"

I included Prince, PE, NWA, B-Boys ...

If any heavy metal acts from the 1980s or 1990s deserved inclusion, I would have added them. The only one, in retrospect that I would have considered is Guns and Roses' "Appetite for Destruction."

Beyond them, the bands you are likely including in "alternative" are what I would deem "Rock" and no different than the Stones, Who, AC DC, or VH of the modern era.

• AJ responded: "I see ok Rich that makes sense then. I do think That Back in Black does belong on there though. I think to a degree it brought metal into the mainstream and the crue, ratt, gnr and all those fucs rode the wave to shore."

• My response: " I guess it's the same argument in support of Back in Black as you would make for Combat Rock -- i.e. their seminal material was released earlier, but these albums brought them to a mainstream audience, which is arguably "important."

I'll accept that. But they still don't make my list.

I don't think I'd lump GnR in with Motley Crue, and I know I wouldn't dump them in with the likes of Ratt. I found an excerpt from a
Chuck Klosterman article from Spin that nicely waxes my belief on this one:

""Paradise City," Guns N' Roses (rock video, 1988) Dressed like a glam-metal Tom Wolfe and chucking his sunglasses at no one in particular, Axl Rose came dangerously close to making GNR the new incarnation of the Rolling Stones. Which was what everyone was hoping would happen, and (obviously) didn't happen, or even come close to happening. But this video could not be any better than it is, particularly when Steven Adler points at New York City from a boat, unconsciously implying that this place is, in fact, where the girls are pretty."

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Final Thought:

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• Phish …. I don't think I can name one of their LPs. I don't really even like them … in fact I'm on record saying I don't like them. (See "King Eiders Pub," discussion between Crissi, Bartender Dave, and I, circa 1997-98 – D: "Tell me why, please, you hate Phish … and keep it under 500 words …" Me: "Cause they suck.") That said, they are clearly among "The Most Influential," if nothing else. Nuff said.

Disturbing Days for Search and Seizure Protections

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It's bad enough to read that this is how the U.S. Supreme Court is taking the law of search and seizure generally. The new opinion, Hudson v. Michigan, apparently calls into question any continuing validity of the exclusionary rule. Justice Scalia wrote the opinion on behalf of a 5-4 majority, including all who you'd expect would fall among the five.

For a quasi-lawyerly perspective, here is ABA Journal's take on it.

NY Times Supreme Court reporter Linda Greenhouse made this interesting observation of Justice Scalia's opinion:

It is rare to find Justice Scalia, a self-described "originalist," incorporating evolving conditions into his constitutional analysis. Almost always, when the court in a constitutional case takes account
of changing conditions, the result is an expansion of constitutional rights, rather than, as Justice Scalia advocated in this case, a contraction.

With this opinion, and his vote in last term's Medical Marijuana case, which turned on a thoroughly Un - Original view of the Commerce Clause, Scalia appears to be tossing aside his legal purity in favor of convenient means to legalistic ends. I guess we'll have to see how else this will shake out ...

Justice Breyer wrote the dissent, joined by Justices Stevens, Ginsburg, and Souter, noting that, "the court destroys the strongest legal incentive to comply with the Constitution's knock-and-announce requirement. And the court does so without significant support in precedent."

I guess all that stuff Justices Roberts and Alito said about their obligation to stare decisis was like so much other chaff to throw off the radar.

The NY Times Editorial Board picked up on this theme, making it one of their themes of outrage in today's lead editorial:

If Justice Sandra Day O'Connor had stayed on the court, this case might well have come out the other way. For those who worry that Chief Justice John Roberts and Justice Samuel Alito will take the court in a radically conservative direction, it is sobering how easily the majority tossed aside a principle that traces back to 13th-century Britain, and a legal doctrine that dates to 1914, to let the government invade people's homes.

Note this fun fact that appears to have alluded all of us but this regular DailyKos poster:

This week marked the 40th anniversary of one of the most famous Supreme Court decisions ever handed down. It's the only decision I know of that has worked its way into American popular culture. I've heard that two billion people worldwide know about Miranda and that even small children are able to recite the Miranda warnings from memory.

What a lovely irony! As a tip-of-the-hat to history, five members of the Supreme Court's right wing agreed to cut the meaning of the Exclusionary Rule to pieces where the objectionably-obtained evidence is hidden behind a door.

The Miranda opinion may remain a classic in the view of the pop legal world, but the 1966 opinion's precedential value is clearly on the wane. As a note, Lexis-Nexis lists the case with a red flag, meaning its holdings have been overturned or otherwise undercut as to its enforceability. In Miranda's case, a federal statute (18 U.S.C. § 3501) has since created a test for weighing a statement's voluntariness that has replaced Miranda's stricter standard.

The Hudson decision clearly continues the general assault on Miranda-type protections against illegal searches and seizures. That is, if we assume that Justice Kennedy's concurrence doesn't undercut the precedential value of the Scalia opinion. For whatever it's worth, Justice Kennedy wrote:

… the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt. Today's decision determines only that in the specific context of the knock-and-announce requirement, a violation is not sufficiently related to the later discovery of evidence to justify suppression.

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But then he adds:

In this case the relevant evidence was discovered not because of a failure to knock-and-announce, but because of a subsequent search pursuant to a lawful warrant.

I struggle to see the distinction. Moreover, I have a hard time following the distinctions made by Justice Scalia – particularly those with the Court's unanimous 1995 opinion in Wilson v. Arkansas, in which Justice Thomas (that's right – that Justice Thomas) wrote:
Given the longstanding common-law endorsement of the practice of announcement, we have little doubt that the Framers of the Fourth Amendment thought that the method of an officer's entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure.

Justice Scalia, it came down to considerations that hardly jive with his Originalist legal philosophy, which would appear to require application of the Bill of Rights' drafters' view of impermissible search and seizure. For Justice Scalia yesterday, it was all about the discretion and enforceability of the standard for courts:

Unlike the warrant or Miranda requirements, compliance with which is readily determined (either there was or was not a warrant; either the Miranda warning was given, or it was not), what constituted a 'reasonable wait time' in a particular case … (or, for that matter, how many seconds the police in fact waited), or whether there was 'reasonable suspicion' of the sort that would invoke the Richards exceptions, is difficult for the trial court to determine and even more difficult for an appellate court to review.

Maybe these distinctions will soon become the stuff of pop culture, "The Mod Squad," and familiarity to children.

Don't hold your breath.

Speedway Tim notes:

I think it is Scalia's contempt for American civil rights that annoys me. It's not just that he's a hypocrite who favors a strange (to me) version of federalism, who thinks the Constitution should be viewed through the prism of 1920s Catholicism, and who favors the powerful over the rest of us.
Many people, especially powerful people believe that. It's the contempt he imposes upon anyone with any idea from the New Deal on that I object to.

I would love to get his personal opinion of Brown v Board of Education. I don't think Scalia's a racist, mind you; I just don't think he cares.
A fair enough analysis, prediction.

Meanwhile, elsewhere in the ugly world of improper search and seizure tactics ...

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The Village Soup also recently reported this ugly story about sketchy search and seizure practices in connection with alleged eco-terrorists in Maine. Here's the Press Herald's take. This must be coming to the fore as planners ramp up for the Plum Creek development showdown at Moosehead Lake and the next round of battles over a proposed liquefied natural gas terminal Downeast. As one commenter told Village Soup:

"I would never advise anybody to voluntarily give DNA samples to police, because you don’t know what kind of database it’s going into or what it will be used for … There are shades of J. Edgar Hoover in this episode."

Ironically, the stepped-up state anti-eco-terrorism efforts come as the anti-development movement

appears to be making headway. Here's the Natural Resource Council of Maine's view.

Similarly, the
Bangor Daily News reports that "it is not a foregone conclusion that any liquefied natural gas terminals will be constructed in the state."

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Here is
Earth! First's view of the Plum, well 'Scum' Creek plan in its own words: " The scumbags spearheading the Moosehead Lake development are backslapping with as many town managers, businessmen and school officials as possible, striving to pull the wool over as many eyes as they can."

Who says objective journalism is dead?