I once asked a donor of major art to an important museum what would happen if that institution proceeded with a tentative plan to sell one of the donor's art gifts to raise money to cover the museum's mounting bills. That option has long been an art museum no-no. Professional museum standards forbid using income from art sold from the collection — the term is deaccessioning — to pay for anything except future art acquisitions. The answer I got from the donor was swift, brief and blunt. 'I'll sue.'
Ever since then, any controversial deaccessioning story that turns up in the news makes me think of lawyers first. It's not pretty, I know. (Insert lawyer joke here.) But whatever public benefits may or may not accrue from such a sale, the one sure winner will be lawyers.
Deaccessioning is a hot topic in the museum world these days as institutions feel the squeeze of the difficult economy, or of their own mismanagement in happier times, or both. As the pressure mounts, a museum may be tempted to sell off parts of the collection simply to generate funds for day to day operations. Those who disapprove of that approach -- the establishment majority in museum circles, exemplified by the Association of Art Museum Directors (AAMD) -- view deaccession to cover operating costs as the equivalent of turning your car to ready cash by torching it and collecting the insurance money. While the AAMD's policies permit the sale of current holdings in order to fund acquisitions -- eliminating parts of the collection in order to expand or improve it, or to fine tune its focus, by the purchase of new and different works -- if appropriate thought and soul-searching is brought to bear on the process, most any other deaccession is viewed with horror and met with howls of opprobrium.
Donn Zaretsky does not follow the AAMD establishment line. In any number of posts to the Art Law Blog, he has urged that deaccession should be entirely permissible for most any reason that museum management deems necessary or appropriate. His positions on the issue have been laid out again in a new piece published in Art in America magazine, "AAMD Rules Need to be Deaccessioned." Poo-hooing the standard argument that works in museum collections are held "in public trust," Zaretsky favors a more free range, or free market, approach:
. . . I suspect that, if the AAMD rule didn’t exist, deaccessioning practices wouldn’t change very much from what they are today: they’d still happen relatively infrequently, after much deliberation and careful consideration by museum curators, directors and trustees.
So where does that leave us? Supporters of the AAMD position say that works can never be sold—except when they can be sold, in which case they’re somehow no longer held in trust. And they say that if we allowed an exception for even the most mutually beneficial transaction (for example, a sale by a struggling institution like the National Academy to a healthy one like the Met), there would be no end to such sales—even though experience under their own rule shows that there are strong institutional constraints in place that act as a check on any abuse of such freedom.
Clearly, these internally inconsistent rules need to be re-examined, if not thrown out altogether.
Knight is having none of it, and accuses Zaretsky of doing no more than setting up and knocking down "a giant straw man" before condemning him as a wild-eyed cultural freebooter:
Minus the office on Capitol Hill, Zaretsky is to established deaccessioning policy what former Sen. Phil Gramm was to established banking regulation — an eager enthusiast for destructive reform, either unaware of or, worse, indifferent to the general chaos that would follow. Gramm went on to become a super-rich executive with a Swiss bank, but how's that banking deregulation thing been working out for you lately?
Christopher Knight's art writing belongs on the very short list of things that the much-abused Los Angeles Times still has left to be proud of these days. That said, it is a disappointment to see that he has himself largely succumbed to argumentum ad strawmanum when he isn't stooping to outright argumentum ad hominem, dismissing both Zaretsky ("Such is the nature of routine blogging") and Art in America ("The magazine had a shakeup in its editorial ranks last year, but if this is the best they can do . . . , it was apparently a wasted effort") with little more than an imperious wave rather than really engaging his opponent on substance.
The core notion that there is some quasi-fiduciary relationship between museums and the public, that if art is not literally held "in trust" it should nevertheless be managed in a manner that will provide the greatest possible benefit (and access) to the broadest possible swath of that public, is not really in dispute. The question is more what sorts of decisions that notion should permit.
Donn Zaretsky -- who can take some satisfaction, I suppose, from Knight's suggestion that there is a faction of "Zaretskians" among the managers of the nation's museums -- objects less to the concept of "the public trust" than to that concept being used as a great "Thou Shalt Not" to shackle all but a very limited class of deaccessions and dispositions. Where Zaretsky sees imprisonment and an unreasonable restriction of curatorial freedom of choice, Knight and AAMD see a sort of protective custody, a binding of administrators' hands for their own good, to save them from their own worst instincts, or to serve a perceived Greater Good. Zaretsky would trust museum managers to exercise sound judgment, Knight and company would prefer that judgment to be exercised only within strictly proscribed limits. The "correct" answer lies somewhere between them or perhaps exists only in theory or not at all. I suggest we all go to our local museum of choice and think it through some more.
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UPDATE [1724 PDT]: Donn Zaretsky responds to Christopher Knight's post.
UPDATE 2 [040809 0804 PDT]: Tyler Green of Modern Art Notes -- who, like Christopher Knight, has a spot near the top of my personal list of arts writers I follow and admire -- weighs in on the contra-Zaretsky side, with gusto.
UPDATE 3 [040809 0822 PDT]: Donn Zaretsky, no surprise, fires back. (Shameless self-interest alert: Zaretsky begins his riposte by quoting this post, and suggests that Decs&Excs has provided a "reasonable summary of the competing positions." Heaven knows, we try.)
Thanks as well to Walter Olson for his link from PointofLaw Forum.
~~~
Photo: "NYC - Metropolitan Museum of Art Armors for Man and Horse" by Flickr user wallyg, used under Creative Commons license.
Welcome to Blawg Review #205, the Music of the Spheres edition.
The English composer Gustav Holst (1874-1934) was hugely prolific, but he is unquestionably best known for his orchestral suite, The Planets. Composed between 1914 and 1916, the work was popular from the start, much to the chagrin of Holst, who thought that it unfairly overshadowed other, more worthy compositions. Beginning in the 1960's, and particularly in the wake of the Space Age, the Apollo program to reach the moon, and the ultimate artistic affirmation of Space that is Stanley Kubrick's 2001:A Space Odyssey, Holst's Planets reached a new level of prominence among the popular classics, and it has never really gone away since. (Playing soon at a summer amphitheatrical symphonic program near you, I would almost guarantee, if I were a fellow inclined to give guarantees.)
The Planets is structured in seven movements, each themed to a mystical/astrological attribute attached by Holst to that movement's regnant planet. The Earth is omitted as is poor old Pluto, which had yet to be either discovered in or demoted from its place in the Solar System. For reasons of his own, Holst ordered the movements to move first toward the Sun -- beginning with Mars and proceeding to Venus and onward in to Mercury -- and then out and away to the edges of the System -- Jupiter, Saturn, Uranus and Neptune in their proper astral order.
Blawg Review #205 is structured in seven movements, themed and ordered to parallel Holst's. As above, so below. Each segment is accompanied by a MIDI version of the relevant movement, courtesy of the Planets page at aquarianage.org. Proper orchestral recordings of the suite are numberless as the stars, and any one of them will give a more fully satisfying experience of the work.
Now, set the controls for the heart of the Sun and beyond as we boldly go where no Blawg Review has gone before: in to the strange new worlds of this past week's finest legal weblog posts. Whooosh!
The planet Mars and the Roman god for which it is named have always been associated with war and, as the Great War launched in Europe, Holst opened The Planets with orchestral music's most readily recognized and frequently imitated depiction of heartless, mechanized conflict. If you know one part of The Planets, this is likely the one. And what the makers of Hollywood preview trailers would do without "Mars" is terrible to contemplate.
Law is war by other means, right? Battlefield metaphors have been the stock in trade of litigators for as long as there have been battlefields, metaphors, or litigators. As an example, Walter Olson on PointofLaw.com noted this headline: "High Profile Plaintiffs Attorneys Start to Beat War Drums Over AIG Bonuses".
Even settlement negotiations can partake of the regalia of war, as when Victoria Pynchon of the Settle It Now Negotiation Blog considers the pros and cons of Pursuing a Divide and Conquer Negotiation Strategy.
Venus, the goddess, is more often associated with Love than with Peace, but Holst opts to set her namesake planet as a more direct counterbalance to the warrior rhythms of Mars (or, if you prefer, to the martial rhythms of war). Serene, stately, and peaceful it is.
In the courtroom, jurors serve as peacemakers of sorts, given that their factual findings actually decide and resolve the issues before them. Why then, wonders Daniel Solove, do we treat jurors as second class citizens? Gideon, of the a public defenderblog ponders jury selection and reduces it all to a single question: "Who Is This Guy?"
Speaking of jurors: should we be at all surprised that Anne Reed's Deliberations has been determined to be the best legal blog in Wisconsin? I am at peace with that notion.
Judges deserve credit as peacemakers as well. Last week's Blawg Review #204 host, Above the Law, provides an unusual instance, in which the judge leaves the bench to defend a witness attacked by the defendant. They have the video of this highly Alternative method of dispute resolution.
With the wind at his back and wings on his heels, Mercury is messenger of the gods, picking up a little extra change on the side as a corporate spokesmodel. The smallest and fastest moving of the planets, Mercury is represented musically as a spirit of increasingly speedy communication. While Holst painted this musical portrait of Mercury at the start of the last century, it is just as fitting a theme for the hoppity-poppity-nonstoppity iFaceBerry TwitterKindling world of today.
Communications technology is essential to contemporary lawyering, but also a subject on which contemporary lawyers can easily find cause to overthink. Take, for example, the "gripping issue of notice-provision terminology" noted at AdamsDrafting: should you refer to it as a "fax" or "facsimile" or "telecopier"?
Blogging is itself a mode of communication, even if directed to an audience of one. On his Compliance Building blog, Doug Cornelius observes: "I use my blogs to put my thoughts and ideas into a searchable place. I am happy that anyone takes the time to read any of them, but I think I am the biggest consumer of my blog material."
Ireland is having its own wrangles with political speech, after an unidentified sly boots of an artist not only painted satirical, near-naked portraits of the Irish Taoiseach (that's Prime Minister to we backwards English-speakers) Brian Cowen, but managed somehow to smuggle them on to the walls of upstanding cultural bastions the like of the National Gallery of Ireland and the Royal Hibernian Academy. The political authorities have been decidedly heavy handed in their efforts to track down the painterly perpetrator, to the extent of exacting an apology from the national television network for having covered the story at all and dispatching the constabulary to a Dublin radio station to demand information on the cartooning culprit's identity and whereabouts. Naturally, the entire situation has been christened "Cowengate." All of which is by way of prelude to a recommendation of the thorough review of the state of play and the legal questions presented offered by Eion O'Dell at cearta.ie: Cowengate and Freedom of Expression.
Jovial Jupiter is as much about awe and nobility as about jollity. After Mars, Jupiter's is the best known segment of The Planets, its central theme trotted out for hymns and processionals and other occasions of serious seriousness. For our purposes, though, the stuffy bits can be ignored as we seek out law-related posts with an element of the Pleasures of This World.
Where might pleasure lie? In the sparkling translucency of a fine Pinot Noir, perhaps, or the burly bruised purple of a fruit-bomb Shiraz? Robert Parker, whose judgments on matters wine-related can single-handedly change the course of rivers (of wine) and determine fate of nations (of wine drinkers) was once, wouldn't you know it, a lawyer. Bitter Lawyer has an interview with the man himself, including the answer to the question "What should law students buy if they've got $12 to spend?" See: Robert Parker, Vintage Lawyer.
Of course, to take pleasure in a scintillant glass or frosty beverage one must first be able to purchase it, something not so easily done in many jurisdictions. Here is a most informative (and amusing) video on the byzantine bizarreries of the alcoholic beverage laws of one state, Virginia, via Radley Balko's blog, The Agitator:
Jollity: you laugh until you cry.
Music, the thematic backbone of this week's Blawg Review, may also give pleasure, being as it is reputed to be the food of love and soother of savagery. Whatever pleasures we listeners may be deriving, the prospects for the business of making money by getting people to pay for music is not particularly jolly. These are men of constant sorrow. The recently-launched Lawyer 4 Musicians blog focuses on the legal end of the business of music and this week turned to the major labels' latest attempt to rethink their revenue models: You Spin Me Right Round: Like a 360 Record Deal. [There's appropriate video accompaniment, likely to convince you that the current 80's nostalgia boom will never last, or shouldn't.]
Why Holst linked Saturn with old age is something of a mystery, as it is not a traditional association. The Planets' fifth movement depicts advancing age as a long, resigned but not depressive trudge to the destiny that awaits us all, which leads as well to the question: what sort of legal blog posts will fit nicely into this section?
Well . . . Nothing says "old age" like a birthday, as we were reminded over the weekend by the mysterious Editor of Blawg Review. Ed. apparently got Barenaked for the occasion. That he hints at this rather than sharing it more directly is an exercise of discretion for which we can all be grateful.
The elderly, and particularly the retirement savings of the elderly, were a particular target of convicted Ponzi schemer Bernard Madoff -- no spring chicken himself. On that note, let's spend a few moments contemplating corruption, which may or may not be connected to the advancing age of the allegedly Corrupt.
Madoff himself seems to have squandered the savings of . . . an equally dubious individual: Walter Olson of Overlawyered discovered that Eric Turkewitz reported that Madoff's victims include one Morris Eisen, a one-time notorious New York personal injury attorney whose work habits included the repeated and elaborate fabrication of evidence. Prior to taking his losses with Madoff, Eisen was disbarred and served a number of years in prison. He can offer Madoff tips on getting along behind bars, perhaps, if he is in the mood to share.
The world of Art is now alleged to have its own Madoff equivalent, in the person of formerly high flying gallery owner Lawrence Salander, now the target of some 100 counts of grand larceny, falsifying business records, scheming to defraud, and on and on. Donn Zaretsky's Art Law Blog is all over this story.
Giving generously to charity is a frequent privilege of the old and well off, and both givers and getters of charity are nervously eying the President's proposals to limit charitable tax deductions. Donn Zaretsky, again, is tracking the issue as it may affect donations of art: President Obama Stands By Proposed Charitable-Deduction Limits.
It is a canard whose age is measured in centuries: old men in power, aging judges for instance, are inherently suspect. As with most canards and over-generalizations, it is a statement that is overall untrue, but for which there are sufficient examples that its broader untruth is lost in the hurly-burly of vivid exceptions. As, for instance, when Austin criminal defense lawyer Jamie Spencer catches out some [aging? we'll assume it arguendo] judges whose decisions, it seems, Can Be Bought: Guilty Judges Say Thanks But No Thanks to Guidelines.
Some lawsuits live to a ripe or overripe old age as well. Dickens' Jarndyce and Jarndyce in Bleak House is the fictional example traditionally cited. Real life produces such antiquities as well, two of which from the Courts of California drew attention this week. Scott Godes' Corporate Insurance Blog (which I needs must add to the sidebar here at Decs&Excs) notes an excellent article by his colleague Steve Goldberg on the Stringfellow Acid Pits litigation, in which the coverage disputes threaten to outlast even the interminable cleanup of the site. And the California Civil Justice Blog updates the continuing saga of the so-called Kwikset litigation under California's infamously broad Unfair Competition Law, concluding there's Nothing Kwik About Kwikset.
Holst's Uranus enters the scene with a flash and a bang, then struts and frets through a series of rapid fire tricks and turns. As with Saturn and old age, the connection between Uranus and Magic meant something to Holst, but is less than clear to the rest of us. In any case, ol' Uranus puts on a whallopin' show before departing in as unsettling a fashion as he came.
The obvious place to turn for posts to include in this segment is the Law and Magic Blog, a blog that is all about . . . ? Anyone? Yes, you there in the back: "Could it be . . . Law and magic"? Yes. Yes, that's exactly right. Give yourself a cookie. And among the legally magical news on the Law and Magic Blog this week, readers could learn that a down economy is a good market for psychics and that the operative standard of care when at the controls of a plummeting jet is: "Don't Pray, Pilot the Plane."
Not magical, perhaps, but also up in a down economy: commercial mediation, according to Geoff Sharp of mediator blah. . . blah . . . .
What if by some miracle you could take a large personal injury liability, say for the death of a hundred innocents in a nightclub fire, and transform it [presto! change-o!] in to something more palatable, such as an expense covered by federal stimulus money. Watch in amazement as Carter Wood of PointofLaw.comreveals the trick, as performed by the State of Rhode Island.
Holst's "Neptune" is an amorphous wash of elegant sound, emulating the distant and unknowable qualities of that far off planet as the suite drifts ethereally to its conclusion. It is often said that Holst here invented the "fade out" as a method of concluding a piece. This movement calls for an offstage female chorus, which continues to sing wordlessly and more and more quietly after the instruments of the orchestra have dropped out, until the sound disappears altogether. Holst's instructions actually call for the chorus to be in another room, and for the door from the concert hall to that room to be closed to cap the long diminuendo to the silence of empty space. (The MIDI version above really does not do the effect justice; you should by all means track down the real thing to hear how well the trick works.)
In the realm of the mysterious, I can point to my own stock in trade: the construction and interpretation of the English language as used, sometimes oddly, in contracts of insurance. Stephen D. Rosenberg of the Boston ERISA and Insurance Law Blog has been thinking long and hard on this topic recently and this week offered his latest thoughts on Deconstructing the Language of Insurance Policies. Additional hope for the perplexed in this field comes from the news that Martin Grace and company at the RiskProf blog will be making their wished for return this week. (There has been a good deal of attrition and suspension in the insurance blogging ranks this past year, Decs&Excs included, so the recent return of David Rossmiller and the promised return of RiskProf are welcome developments.)
Looking for a topic more mysterious than insurance? How about federal preemption doctrine in drug and device product liability litigation? The mind boggles. Fortunately, new insights were provided this week by Jim Beck and Mark Herrmann at the Drug and Device Law blog, reviewing a recent address on the subject by former Yale Law dean, now Judge, Guido Calabresi: Calabresi on Preemption.
Intellectual property is not the sole property of intellectuals, but it can easily sow confusion among those who are not among its adepts. Jeff Pietsch of The IP Law Blog assists the confused in his continuing series of trademark basics, this week explaining the concept of trademark dilution. Like a good scotch, a good trademark should not be excessively diluted.
A final conundrum before we part: Why do large and seemingly successful law firms suddenly go *poof*? John Wallbillich of wiredGC takes on a recent example of the phenomenon when he considers Proximate Cause and Law Firm Dissolution.
Now, as Blawg Review #205 fadesinto distanceand silenceand the infinite mystery of space . . ., Decs&Excs thanks you for reading and leaves you with this final observation, which is an eternal verity and no mystery at all:
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.
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Photo Credits:
"Orrery Closeup," by Flickr user Binks , showing the orrery at the Long Now Foundation, San Francisco;
The intersection of art and law has been a recurring topic here at Decs&Excs, especially when one declines to yield the right of way to the other. One subset of that topic has been courthouses of artistic or architectural interest. See, e.g., here or here.
The newish federal courthouse in Springfield, Massachusetts, boasts a highly respectable architectural pedigree. The principal architect is Moshe Safdie, perhaps best known for Habitat, the apartment building he constructed for Montreal's Expo '67 by literally stacking modular residential units on and around one another. Better yet, as Los Angeles Times art critic Christopher Knight reports online today,the Springfield courthouse is home to an important -- and large -- piece of contemporary art.
The late Sol LeWitt (1928 - 2007) worked in many media and is associated with both the Minimalist and Conceptualist strains of contemporary art. Those strains meld in LeWitt's large body of "Wall Drawings." As their name suggests, LeWitt's wall drawings are drawn (or painted or otherwise applied) on walls of existing buildings. LeWitt rarely executed the drawings himself. Instead, the artist's creative contribution was to devise the detailed sets of instructions that others would follow, with or without Lewitt's supervison, to bring each drawing into the material world. The wall drawings, in other words, exist principally as sets of instructions for their own creation. The idea of the drawing is the drawing. This is the sort of thing that some of us like very much and that others point to as Exhibit "A" in support of their "Motion to Strike All Contemporary 'Art' as a Sham, a Frolic, and a Banter."
The wall drawing in the Springfield courthouse is one of the last LeWitt created. "Wall Drawing No. 1259: Loopy Doopy (Springfield)" is 300 feet long, covering the entire length of the third floor and enveloping the entrances to four courtrooms. Christopher Knight writes:
In the last decade or so of his life, LeWitt made a number of drawings by ...
... taping together two pencils and rolling them through his fingers and twisting his wrist as he moved across the page. That became the template for the mural.
The energy of the piece derives from the way it negotiates the crazy play of its linear twists and turns with the strict rationality of the architectural setting. (The building was designed by Boston architect Moshe Safdie.) On a black acrylic ground, the wide white lines seem to emerge from the surrounding white-walled interior, which merges a rectilinear grid with a compound curve. Buildings can be eccentric, but they must also subscribe to the logic of structural codes -- which an artist can happily ignore. The loopy-doopy drawing, flooded with natural light from the building's glass facade and skylights directly above, takes that fundamental difference and runs with it.
He even provides video, walking the full length of the third floor corridor:
As public art goes, this is top flight. I cannot speak for attorneys who actually have to practice in its presence, but I suspect that if I found myself in Springfield, Massachusetts, waiting to make an argument in one of those courtrooms, the contemplation of all those loops and doops would be just what I would want to get my head on straight. Other advocates' mileage may vary.
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For Extra Credit: Since last November, and for the next couple of decades, the Massachusetts Museum of Contemporary Art [Mass MOCA] will be home to the world's largest assemblage of executed LeWitt wall drawings: 105 of them, to be exact. This Mass MOCA video looks in depth at the variety of the drawings and at the processes involved in fulfilling the artist's instructions. In some sense, these works are not so much art as they are repetitive motion injuries waiting to happen:
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Your Government has created a lavishly illustrated brochure [PDF] about the Springfield Courthouse, its architecture and art. The photo at top has been excerpted from that publication. A gallery of photos of the building, including one more of the LeWitt, is accessible on the Court's site.
The continuing and profound silence in this space will again be broken no later than next Monday, March 30, as it will be my pleasure for the fourth year running to host a new edition of Blawg Review, the weekly blog carnival for everyone interested in the law. As in prior years, and notwithstanding the protests of wiser men than I, there will be A Theme to the presentation. Please rejoin me here next Monday to see how it all plays out, and to survey another week's worth of the finest law-related blog posts from hither, thither and yon.
Meanwhile, a brazen and beefy Blawg Review #204 is to be had this week courtesy of the legal tabloidologists at Above the Law. Get thee hence post haste, then hasten back here post hence.
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Photo: "Watch This Space" by flickr user hockadilly, used under Creative Commons license.
Perhaps you have heard of juried art exhibitions, but what about jurors' art exhibitions?
Anne Reed's sterling Deliberations -- the home of Blawg Review #127, which was among Decs&Excs' nominees for 2007 Blawg Review of the Year -- is devoted to the care and feeding of juries and jurors. Anne recognizes that while jurors are often treated as fungible cogs in the rickety gearbox of justice, they are also Real Live Humans with histories, hopes, dreams and talents. As a token of that recognition, Anne hosts
"Deliberations' own gallery of art done by actual jurors while on actual jury duty."
Rights to most of the work on display in the Gallery have been reserved by the artists, so I won't reproduce any exemplars here. Go, ramble the virtual corridors and see for yourselves.
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Link to the Gallery via the invaluable arts blog, C-MONSTER.net.
Photo: "Jury Duty Waiting Lounge," by Flickr user sgarcia, used under Creative Commons license. Unless I miss my guess, the lounge depicted is in the Stanley Mosk Courthouse in downtown Los Angeles. The clock on the wall shows 4:30 p.m. fast appoaching, so these Real Live Human Jurors were nearing the end of their suffering on our behalf. Thank them, won't you?
The Stringfellow Acid Pits of Riverside County have been spawning (spewing?) litigation for decades, both as to when, how and by whom the site must be cleaned up and as to which of the responsible parties' insurers must bear what portion of the cost. The State of California filed suit in 1983 against an assortment of defendants that it blamed for conditions and discharges at the site, leading ironically to a 1998 determination that the State itself bore much of the culpability. The State promptly turned to its various liability insurers, leading to extensive litigation over those insurers' responsibilities.
A number of the insurers extricated themselves via summary judgment. Others settled. In May of 2005, Decs&Excstook noteof the Riverside Superior Court's judgment imposing responsibility on those insurers that remained in the case. However, because of the manner in which the trial court calculated the available policy limits and applied offsets for payments made by the various settling insurers, the State ultimately found itself the proud possessor of a judgment in its favor for: $0.00.
In the newsworthy portion of the opinion, the Court of Appeal reversed the trial court' calculation of the amount of the available policy limits. The trial judge had concluded that the maximum amount each insurer could be responsible to pay was the policy limits for a single policy period. If the policy had been renewed for subsequent periods, no additional limits were available even though the covered damage continued in to those subsequent periods. The Court of Appeal disagrees, concluding that when an insurer has issued a policy over several policy periods, during each of which covered damage was accumulating, the limits available in each period may be "stacked" on the limits available for each other period to determine that insurer's maximum responsibility:
If an occurrence happens entirely within one policy period, the insured has paid one premium and can recover up to one policy limit; however, if an occurrence is continuous across two policy periods, the insured has paid two premiums, and can recover up to the combined total of two policy limits. We see nothing unfair or unexpected in this.
The State's claims against the insurers who extricated themselves by motions for summary judgment remain pending before the California Supreme Court, to be determined who knows when. It is probable that some or all of the insurers involved in this latest decision will also be seeking Supreme Court review. And so the saga continues, and continues, and continues.
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Incidental Intelligence:
In a case of "everything old is new again," California Attorney General Edmund G. "Jerry" Brown, Jr., appears in the long list of attorneys representing the State in this case. He was, of course, Governor of California in 1981 when Stringfellow was first designated as the state's top priority site for cleanup. Given ongoing rumors concerning his intentions in 2010, Jerry Brown may be Governor again whenever the various Stringfellovian lawsuits finally come to an end.
On occasion,appellate courts will publish a decision not because it breaks new legal ground but because it offers an opportunity to "remind" practitioners of rules that are well-settled but too often "forgotten" or "overlooked." To wrap up 2008, Curt Cutting at the California Punitive Damages Blog points to just such a case.
How certain must the facts of a case be before a liability insurer can refuse to defend its insured, and
What proof is required to support a claim for punitive damages.
The Punitive Damages Blog, unsurprisingly, is most interested in the second issue, as to which the Court reiterates the need for "clear and convincing" evidence establishing the equivalent of "evil, criminal, recklessly indifferent [conduct, or other strong indications of] a vexatious intention to injure" before punitive damages are appropriate. As Curt Cutting writes:
This opinion doesn't really add much to the body of California law regarding the standards for imposition of punitive damages. Nevertheless, my sense is that trial courts sometimes lose sight of how stringent those standards are, so it's nice to see the Court of Appeal issue this published opinion as a reminder.
Here at Decs& Excs, unsurprisingly, it is the first issue that holds our interest. The particular details of the insurance coverage question in Food Pro will be of most interest to coverage specialists -- the case turns on the application of a "professional services" exclusion, and specifically on when an injury does or does not "arise out of" the provision of professional services -- but the major "reminders" that the court intends to provide are of broad application:
A liability insurer must defend whenever there is a "potential," no matter how slim, that the case may result in an award of covered damages;
There is a "potential" for a covered award whenever there is any evidence available that would support such an award; and
Insurers cannot avoid the duty to defend -- and trial courts cannot ratify the insurer's denial of a defense by granting judgment in the insurer's favor -- by the expedient of simply ignoring evidence that supports a differing conclusion.
Too often, insurers and the attorneys who advise them get in to trouble because they reach a conclusion -- "Nope, nope: there's no potential for covered damages here." -- and thereafter only acknowledge the existence of information that reinforces that conclusion, turning a blind eye to any conflicting information. That is the mistake that Farmers and its coverage counsel made in this case, at least to hear the Court of Appeal tell it.
The price of that error is a remand to the trial court for a further trial. The good news for Farmers is that it does not face the risk of a judgment for punitive damages. The less good news is that if definitely faces liability to pay its insured's defense costs and maybe, just maybe, faces liability for compensatory damages for "bad faith." And therein lies the danger of seeing only what you want or expect to see.
Charon, the ferryman who transported souls across the River Styx to the realms of the dead in the myths of the Greeks, was appropriated by Dante to serve that same purpose in a more Catholic and more punitive version of the afterlife in the Inferno. Charon, in consequence, knows a little something about Sin. It is thus a right and proper thing that Blawg Review # 193 hosted by Charon QC has been built, and very well built, upon the theme of the Seven Deadly Sins.
It is a sterling effort. If weblogs had pages, it would be a riveting page-turner. It is so good, in fact, that notwithstanding my own three-year tenure hosting "April Fool's" editions of Blawg Review at that other weblog, I feel not the least bit huffy or territorial over Charon's appropriation -- an entirely appropriate appropriation on the occasion of Twelfth Night -- of the Feast of Fools in his lengthy and jocular introductory segment. Charon is to be commended for setting a Blawg Review standard to which future hosts can only dream of hoping to wish to aspire. Bravo! Now go read it.
Hellooooo. Is anyone there? Is anyone here? Anything happen while I was out?
If nothing else, Blawg Review has continued to happen week after week and, it being what we in the trade often refer to as the End of Another Year, the Anonymous Editor of Blawg Review has taken the occasion of Blawg Review #192 to solicit the votes of Blawg Review hosts past, present, and future, for the 2008 Blawg Review of the Year. Having hosted Blawg Review editions here and elsewhere in each of the past three years, and having lined up to do so yet again in a very few months, I now rise to cast my ballot.
Ed.'s invitational post provides a convenient gateway to each of this year's 51 editions, and I have been duly diligent in visiting or revisiting them all prior to making my selection. Especially impressive this year? The array of International sites -- by which we UnitedStatesers ("Americans" isn't strictly the right term, given that there are at least two continents with "America" in their names and that we share the Northern one with another nation state or two) mean blawgs not originating in the United States of [Northern] America -- hosting Blawg Review, and the equally grand array of Recidivist Blawg Review Hosts who, undaunted by their direct knowledge and personal experience of the daunting task it is to be a Blawg Review Host even once, have returned to the hosting fray with more vigor than ever.
All have won, and all should have prizes, and readers, but I have imposed on myself an altogether arbitrary limit of five nominees. Those nominees are, in chronological order:
cearta.ie >> Blawg Review #164 -- To stand as representative for all of the eminent International law sites that hosted Blawg Review this year, I nominate this Dublin-based Bloomsday edition. A congenial legal stroll with Leo and Steve and the merry denizens of Nighttown. Yes I say yes.
E-Commerce Law: Blawg Review #167 -- In a post-US Independence Day edition, Jonathan Frieden waved the flag a bit in presenting the "50 Stars of the Blawgosphere," a loose-limbed ramble through These 50 United States, in the order of their admission to the Union, with a legal weblog associated, at least loosely, with each.
Blawg Review #171 : The IP ADR Blog -- Eminent Victorians? It's been done. Eminent Viriginians? Also done. Eminent Virgins?!? For that, we must thank whatever possessed Victoria Pynchon to build her latest Blawg Review 'pon that theme. Pure as the driven snow. (Have you ever seen snow that's been driven on?)
The UCL Practitioner: Blawg Review #183 -- There's no place like home, so my final nominee is this comprehensive catalog of clever Californians. I'm certain Decs&Excs would have been included here, had it only been awake and alive at the time. That'll learn me.
Decs&Excs will be hosting Blawg Review for a fourth time at the end of March, on a theme no doubt to be selected in a hasty frenzy at the last possible moment. In the meantime, it is high time that I should end my unbloggerlike hibernation and return to at least quasi-regular posting on this site. Any number of insurance-related weblogs seem to have grown unusually quiet these past months, their disappearances as mysterious as those of the dinosaurs or Judge Crater. Enough. Let the resurgence begin here!
Here's wishing each and all a spirited, comfortable and prosperous 2009.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues -- or perhaps to host one yourself. Blawg on.
~~~ Illustration: The Olympic Gateway at the Los Angeles Memorial Coliseum, created for the 1984 Olympic games by the lateRobert Graham. Photograph by Flickr! user grifray, used under Creative Commons License.
, Holst's Planets reached a new level of prominence among the popular classics, and it has never really gone away since. (Playing soon at a summer amphitheatrical symphonic program near you, I would almost guarantee, if I were a fellow inclined to give guarantees.)
, and any one of them will give a more fully satisfying experience of the work.
is the fictional example traditionally cited. Real life produces such antiquities as well, two of which from the Courts of California drew attention this week. Scott Godes' 
