AN unREASONABLE MAN, directed by Henriette Mantel

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Re: AN unREASONABLE MAN, directed by Henriette Mantel

Postby admin » Tue Jul 28, 2015 11:53 pm

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Michael L. Charney, M.D.
by climate-talks.net
7/28/15

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Michael L. Charney, M.D.
Co-Founder and Co-Chair of the Massachusetts Climate Action Network (MCAN)
Coalition for Environmentally Responsible Conventions
Publisher, the Cambridge Climate Calendar


Michael L. Charney is a psychiatrist, political activist, organizer and uncertified environmentalist, working to grow the climate protection movement in Massachusetts. Betting on the "Civil Society" solution - citizen action for greenhouse emissions reductions – Charney co-founded and co-chairs the Massachusetts Climate Action Network (MCAN). The purpose of this group is to incite environmental learning and activism in metro-Boston and beyond. As part of this effort Dr. Charney publishes the e-weekly Cambridge Climate Calendar (CCC) [since May 2000] (To write for subscription to the e-weekly Calendar, click here; for more information on the 'Climate Calendar,' click here). In addition, in order to promote the construction of green, high performance buildings Dr. Charney co-founded and co-chairs the Green Building Coalition for green building incentive legislation in Massachusetts.

MCAN now has autonomous climate groups in 15 Massachusetts cities and towns, and representation from MassPIRG, Clean Water Action and Mass Energy. It sponsors lectures and conferences on climate change and solutions, and speaker training . It supports and critiques legislation, provides testimony at regulatory hearings, works for fuel efficient transportation, protests SUV’s, and helps network and stimulate diverse climate activism at the local and state level.

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Dr. Charney’s activism began as a draft exempt student opposing the Vietnam War, graduating Yale College in 1968. As a Nader Raider for occupational safety and health, Charney drafted a "Health Bill of Rights for Workers" (UAW newletter, 1970), which contributed to the writing and passage of OSHA. Smitten by the 1970 National Student Strike, he founded and coordinated the 100 member O.M. Collective which wrote The Organizer’s Manual (Bantam Books 1971), an all-purpose and anti-war grassroots organizing text. In 1971 he started the New Haven Occupational Health Project to assist Southern Connecticut AFL-CIO in using OSHA.

Dr Charney evaded political controversy for the next decade, graduating Yale Medical School (1972), completing internship at Cambridge Hospital (1973), adult and child psychiatry residency training at Massachusetts Mental Health Center (1978), and the Boston Psychoanalytic Institute (1982). He opened private practice in 1978. In the early 1980’s he again juggled his career, joining Greater Boston Physicians for Social Responsibility and initiating a variety of nuclear freeze advocacy projects. In 1984, with two 64K Kaypro II computers between them, law professor Richard Daynard of Northeastern and Dr. Charney devised a farfetched and long to be scoffed stratagem, the Tobacco Products Liability Project to stimulate and organize a tobacco plaintiffs’ bar, medical experts and victims, to pursue personal injury, third party and class action law suits against the tobacco industry as a public health intervention.

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In 1990 through 1994, in response to epidemic youth violence, Dr Charney created The Games Project/Chess Makes Kids Smart! training five hundred youth workers, college students, teachers, librarians and volunteers to teach chess to Boston kids. The Project established 60 neighborhood chess programs, distributed 3000 chess sets and enlisted architects locally and nationally to design and construct giant chess sets. For the 1992 American Institute of Architects convention, the Boston Society of Architects and the Games Project made and mounted the Giant Boston Architectural Chess Set shaped as old versus new landmark Boston buildings. Dr Charney then ran a two-week outdoor Chess Festival on Copley Square in Boston’s Back Bay. (Architecture, 11/92, photo).

During the mid 1990’s Dr Charney closed his practice and retooled in psychopharmacology and medicine for in-patient psychiatric employment. This led to several years work and travel between Alaska, Vermont and Massachusetts. For several months in the Yukon-Kuskokwim Delta he reported for The Tundra Drums newspaper, and while in Bethel gained a transforming appreciation for life’s struggle between vast earth and vaster sky. On resettling in Boston and resuming private practice, he began earnest environmental and climate self-education with a necessarily quixotic intent for climate activism. He first learned of global warming in 1988, but for years avoided and mulled depressed by it, a threat too pervasive to contemplate, a problem so massive, vested, complex and subtle, how could it be solved given the difficulty banishing mere cigarettes?

In 1998 upon reading The Heat is On, he contacted Ross Gelbspan across the Charles and Muddy Rivers in Brookline, and enlisted as apprentice to Ross’s ad hoc policy group which drafted the "World Energy Modernization Plan" (River Street Design, 12 pp, 1998).

Interestingly, far-off international debate, US Senatorial resistance, Kyoto weakness and daunting IPCC research, left a large empty niche at the bottom. The 1999 Tufts Climate Initiative conference, "Climate Change and Civil Society" featured I.C.L.E.I.’s Cities for Climate Protection campaign. It showed how to put climate action in citizen hands.

Charney began publishing the Cambridge Climate Calendar, and reconstituted a lapsed environmental group as Cambridge Climate Action (CCA). It then prodded creation of a taskforce to draft a climate action plan. In May 2000, CCA sponsored "Climate Protection: What You & U.S. Cities Can Do." Marc Breslow and Charney began Massachusetts Climate Action Network. In a related initiative Dr Charney drew attention to New York State’s new Green Building Tax Credit Act, and with the Boston Society of Architect’s Committee on the Environment, the Green Roundtable and others founded the Green Building Coalition which combines the Environmental League of Massachusetts, the Greater Boston Real Estate Board, architects and MCAN together in support of green building incentive legislation.

As the 21st century unfolded, 9/11, Enron, and the Iraq and Afgan Wars highlighted, for those who would see, the further danger and liability of the U.S. oil addiction beyond the more readily ignored crisis of global warming. With Washington distracted and Bush/Cheney attacking the environment and promoting nuclear and fossil fuels, grassroots, outside the beltway efforts like MCAN, and state climate policy initiatives became, if only by comparison, the most promising arenas for climate hope.

Yet the national nightmares, the need for defensive enviro-policy action, and our market economy’s indecent descent, derailed many enviro and climate initiatives, including among many more ambitious, the MA Green Building Tax Credit effort. Yet our New England Governors and Eastern Canadian Premiers in a rare and estimable display of leadership and courage, promulgated a farsighted joint regional climate protection plan and goal (see Climate Change Action Plan - August 2001) calling for eventual deep GHG emissions reductions

But a succession of Massachusetts Republican governors sat on the state’s own draft Climate Action Plan (CAP) necessary to begin addressing necessary regional goals. Massachusetts’ Climate Action Plan was finally released in May 2004.

During this time Charney continued the Calendar and, with Breslow continued to build MCAN membership, hosting annual grassroots climate protection conferences at Tufts, and establishing a consumer presence in the oversight of the state’s annual 110+ million dollars of energy efficiency monies from a surcharge on electricity ratepayers.

In November of 2002, a week after that fall’s MCAN conference, the Democratic National Committee selected Boston to host their 2004 National Convention. Inspired by the suggestion of a colleague, Charney drafted and circulated a proposal to green the upcoming Democratic convention. He drew together a group of Massachusetts enviro leaders who, in short order, founded the Coalition for Environmentally Responsible Conventions (CERC) to do just that and then some.

Charney now chairs the CERC Steering Committee Chair and manages the website while Dan Ruben is Executive Director and carries the major responsibility for the organization. CERC has direct working relationships now with both Democratic and Republican host committees in Boston and New York, and with the Democratic National Convention Committee here in Boston.

CERC is promoting best environmental practices in a number of areas , including the use of green building and demolition recycling practices for the Fleet Center’s stage, carbon offsets and wind power credits sufficient to make one or both conventions “climate neutral,” food waste rescue and composting from some of the major dinners and receptions, green hotel and event planning innovations, and together with Boston officials promotion of anti-idling compliance by tour bus and delivery drivers during July’s four day event.

If successful, CERC would raise national awareness that many excellent, economical practices already exist to help American businesses progress toward environmental sustainability and climate protection.

The Climate Calendar, MCAN, the green building legislative coalition, and CERC all share the same grassroots, civil society strategy. That is, to address climate and environmental challenges from the bottom up, starting in your own living room with phone, phonebook and paper – now phone, broadband and computer - raising consciousness, growing people power, fostering synergies and alliances, to move furniture by pulling the rug.
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Re: AN unREASONABLE MAN, directed by Henriette Mantel

Postby admin » Wed Jul 29, 2015 12:13 am

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Class Action Law Pioneer Dies at 58
By NICOLE B. URKEN
CRIMSON STAFF WRITER
December 15, 2003

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Beverly Cooper Moore Jr., a major leader in the movement for class action suits known for his honesty and integrity, died on Nov. 24 of a blood clot to the brain. He was 58.

Moore, who graduated cum laude from Harvard Law School (HLS) in 1970, began his work with the class action movement—encouraging individuals with similar claims to sue together—while working for consumer advocate Ralph Nader’s Corporate Accountability Group.

“The loss of Beverly Moore Jr. will be felt by many Americans who would never come close to...the character and honesty that defined him,” Nader said in a eulogy that he e-mailed to The Crimson.

Mark J. Green, an HLS classmate who also worked for Nader, said that Moore embodied the passion necessary to mobilize the class action movement.

“Though his efforts in the 1970s were considered ‘far out,’ they have ripened into the core of the current corporate accountability movement,” Green said.

Moore’s focus on class action suits continued even after he left Nader’s office, when he became editor and publisher of “Class Action Reports,” a legal periodical, in 1974 and started his own law firm in 1979.

“Beverly was extraordinarily aware of the power class action suits held to carry out justice, and he was dedicated to make them serve that end,” said Arthur Bryant, executive director of the Trial Lawyers for Public Justice Foundation.

Family and friends say they will remember Moore for his integrity.

Robert C. Fellmeth, another of Moore’s friends from his HLS days, said that Moore was both an honest person and an honest lawyer, who stood by the parties he represented—consumers, children, the future, the environment and minorities.

“He was part of the old school,” Fellmeth said. “Beverly was totally incorruptible. He cared not about money, but about justice.”

Moore passed the ultimate test of integrity time and time again, Fellmeth said, refusing large offers of money to settle his lawsuits and instead insisting on winning them.

His passion for his cause, coupled with his brilliance, made him a very effective lawyer, according to colleagues.

Green described Moore as uniquely intelligent, with a penchant for soaking up knowledge and also for creativity.

“I remember times when he would knock off hundreds of pages of texts that were densely progressive and visionary,” he said. “When you’re a guy with a name like Beverly, you’ve got to be good.”

Moore’s published works include The Closed Enterprise System, which he co-authored in 1972 with Green and law school friend Bruce J. Wasserstein. He also wrote articles in law publications such as the “Legal Times” and the “Yale Law Journal.”

In addition to his professional abilities, Moore, a southerner with a deep drawl, “was a real character with a good sense of humor,” Fellmeth said.

Moore grew up in Greensboro, N.C., and graduated from the University of North Carolina Chapel Hill in 1967.

Moore is survived by his wife, Deanna Isley Moore, daughter Caroline Hargrove Moore Rodier, daughter Alice Cooper Mitchell Moore, mother Irene Mitchell Moore, and sister Irene Warren Moore Miller.

A memorial service was held Friday at the Monaco Hotel in Washington, D.C.

—Staff writer Nicole B. Urken can be reached at urken@fas.harvard.edu.

________________________________________________


One Nader Raider, Beverly C. Moore, Jr., told the author [Justin Martin, Nader: Crusader, Spoiler, Icon] "We always thought he was having sex with Joan Claybrook. But we never had any evidence whatsoever."

***

4 Harv. C.R.-C.L. L. Rev., No. 2 (Spring 1969)

FIELD INTERROGATION
Beverly C. Moore, Jr.

LOITERING AND RELATED OFFENSES
Beverly C. Moore, Jr.

VAGRANCY AND RELATED OFFENSES
Beverly C. Moore, Jr.

***

Mark J. Green, Beverly C. Moore, Jr., and Bruce Wasserstein, The Closed Enterprise System: Ralph Nader's Study
Group on Antitrust Enforcement (New York: Grossman Publishers, 1972), pp. 254-256.
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Re: AN unREASONABLE MAN, directed by Henriette Mantel

Postby admin » Wed Jul 29, 2015 12:29 am

Richard G. Aird, et al., Beverly C. Moore, Jr., et al., appellants/cross-appellees, Landon G. Dowdey, Appellee, v. Ford Motor Company, Appellee/cross-appellant, 86 F.3d 216 (D.C. Cir. 1996)

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U.S. Court of Appeals for the District of Columbia Circuit - 86 F.3d 216 (D.C. Cir. 1996)

Argued April 12, 1996. Decided June 4, 1996. Rehearing and Suggestion for Rehearing In Banc Denied July 9, 1996. *As Amended Aug. 12, 1996

[318 U.S.App.D.C. 143] Appeals from the United States District Court for the District of Columbia (No. 81cv01998).

Beverly C. Moore, Jr., Washington, DC, and John E. Price, Springfield, MO, argued the causes and filed the briefs for appellants/cross-appellees.

Carl R. Schenker, Jr., Washington, DC, argued the cause for appellee/cross-appellant Ford Motor Company with whom William T. Coleman, Jr., Richard C. Warmer and John Beisner were on the briefs.

Marya C. Young, Binghampton, NY, argued the cause and filed the brief for appellee Landon G. Dowdey.

[318 U.S.App.D.C. 144] Before: SILBERMAN, WILLIAMS, and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

The first time this case came to us, it held out the promise of hundreds of millions of dollars in damages for a nationwide class of millions of plaintiffs. Walsh v. Ford Motor Co., 807 F.2d 1000 (D.C. Cir. 1986), cert. denied, 482 U.S. 915, 107 S. Ct. 3188, 96 L. Ed. 2d 677 (1987). The second time, not even one plaintiff remained to prosecute the appeal. Walsh v. Ford Motor Co., 945 F.2d 1188 (D.C. Cir. 1991). The case now arrives in this court a third time, more than four years after we put an end to litigation of the merits, with only the lawyers left to argue over costs and sanctions. Unfortunately, after 15 years of litigation, we cannot end the case here, but must remand one final issue to the district court. While we affirm the district court's order assessing as costs the prevailing party's share of the special master's fees, we reverse the court's decision absolving one of the plaintiffs' counsel from joint and several liability for any costs, and we remand the case for the court to reconsider the special master's recommendation that sanctions be imposed on plaintiffs' counsel.

In its earliest incarnation, this case was a class action breach of warranty suit against Ford Motor Co. filed on behalf of owners of Ford vehicles. Plaintiffs, who brought the suit pursuant to the Magnuson-Moss Warranty--Federal Trade Commission Improvement Act (Magnuson-Moss Act), 15 U.S.C. §§ 2301 et seq., alleged a disconcerting tendency for the automatic transmissions to slip from "park" into "reverse". The district court ultimately denied class certification and dismissed the claims of the individual plaintiffs, determinations that became final when this court dismissed plaintiffs' appeal.

The district court also issued several orders in response to the parties' motions regarding costs and sanctions.1 Defendant Ford and two distinct groups of plaintiffs' counsel have appealed and cross-appealed the district court's resolution of those issues; a third member of the plaintiffs' legal team, while satisfied with the orders, appears here as both appellee and cross-appellee. To explain how this unusual alignment of parties came about, we set forth the events leading up to the plaintiffs' defeat on the merits.

Beverly C. Moore, Jr. acted as lead plaintiffs' counsel from the outset. Moore, who apparently had academic interest and practical experience in both class action litigation in general and the Magnuson-Moss Act in particular, put together a counsel team whose membership over the course of the litigation included both individual lawyers and large firms. One of the original members of the team was Landon G. Dowdey, a member of the District of Columbia bar and long-time trial lawyer. While other team members, including Moore, undertook labor-intensive aspects of the case such as motions relating to the Magnuson-Moss Act, discovery, and class certification, Dowdey's role was limited to advising Moore on other areas of strategy and local practice in which Dowdey was particularly knowledgeable. A few months after plaintiffs successfully moved for class certification, Walsh v. Ford Motor Co., 106 F.R.D. 378 (D.D.C. 1985), attorneys associated with the firm of Woolsey, Fisher, Whiteaker & McDonald (collectively known to the parties as "Missouri counsel"), who had experience in litigating "park-to-reverse" cases against Ford, joined the plaintiffs' team and were assigned primary responsibility for handling discovery.

In September 1985, two months after Missouri counsel had entered the case, the district court appointed a special master to oversee discovery and a few other procedural matters. The order of reference provided that " [a]ll compensation and expenses in connection with this Order shall be paid 50% by plaintiffs and 50% by defendants." In the [318 U.S.App.D.C. 145] spring of 1986, the special master established a schedule for discovery.

Shortly thereafter, the plaintiffs suffered two major reversals. First, in August 1986, the firm with which Missouri counsel were associated suffered a "major schism" and lost one-third of its attorneys. The resulting turmoil, coming just when the pace of discovery was accelerating under the master's schedule, compromised Missouri counsel's ability to handle discovery as contemplated in their agreement with Moore. Moore attempted to enlist other firms as co-counsel to take up the slack, but his search was hampered by a second setback. In December 1986, this court vacated the class certification, Walsh v. Ford Motor Co., 807 F.2d 1000 (D.C. Cir. 1986), cert. denied, 482 U.S. 915, 107 S. Ct. 3188, 96 L. Ed. 2d 677 (1987), making the case much less attractive to potential plaintiffs' counsel.

In the meantime, the plaintiffs' responses to Ford's interrogatories came due, and the plaintiffs failed to respond at all to many of the interrogatories. Ford moved to compel responses. The special master, while expressing sympathy for counsel's difficulties, concluded that it was too late for them to obtain an extension of time to respond. Accordingly, on December 11, 1986, the special master granted Ford's motion to compel and ordered the plaintiffs to respond to specified interrogatories by January 9, 1987.

After the plaintiffs responded to the interrogatories, Ford again moved to compel discovery, maintaining that the responses were inadequate. Ford also requested that the special master impose discovery sanctions. The plaintiffs responded that the detailed and technical interrogatories were "extraordinarily prolix," a contention with which the special master again showed some sympathy. The special master also found, however, that the "plaintiffs' responses to these interrogatories manifest an almost studied refusal to be specific. Many of plaintiffs' answers improperly substitute general pleading-type allegations for the detailed, fact-specific explicitness which the discovery process requires." The special master therefore concluded that the plaintiffs had not complied with the December 11 order compelling discovery, and issued an order on May 5, 1987, compelling further interrogatory responses. The special master deferred consideration of Ford's request for sanctions, however, until after the plaintiffs had an opportunity to supply satisfactory responses to the interrogatories. On Ford's motion for reconsideration, the special master again decided, on May 28, 1987, that the plaintiffs had violated the December 11 order and directed the plaintiffs to supplement their responses by June 4, 1987.

On July 9, 1987, the special master took up the sanctions question that he had deferred in May. Ford sought only its expenses relating to the plaintiffs' failure to comply with the December 11 order and did not request sanctions for any alleged deficiencies in the plaintiffs' supplemental responses to the May orders. The special master, amplifying upon his earlier findings, concluded that the plaintiffs had violated the December 11 order and that the violation was unjustified. Noting that the entire plaintiffs' counsel team--Moore, Dowdey, and Missouri counsel--bore responsibility for the inadequate discovery responses, the special master concluded that there was no principled way to single out any one of them for punishment and held each of them jointly and severally liable for sanctions. Turning to the measure of sanctions, the special master decided that the expenses caused by the plaintiffs' noncompliance with the December 11 order were fairly measured by Ford's costs in obtaining the two May orders requiring the plaintiffs to supplement their deficient responses. He ordered the parties to confer and determine a reasonable award, but it appears that an amount was never fixed. Following a series of events not fully reflected in the record, the plaintiffs appealed the July 9 sanction order to the district court.

Throughout this period, relations among the plaintiffs' counsel deteriorated. Moore and Dowdey began to disagree over strategy, and the disagreements became heated and personal. In February 1987, after the plaintiffs had filed the deficient interrogatory responses pursuant to the December 11 order compelling discovery, Dowdey moved to have his name removed from some of the documents because he did not "want his name associated with procedures in this case of which he did not, and does not, approve." On October 30, 1987, Dowdey moved to withdraw as class counsel, and the district court [318 U.S.App.D.C. 146] granted his motion in December 1987. In the spring of the following year, Dowdey also moved for reconsideration of the July 9 sanction order, requesting that the special master relieve him of liability because he was not responsible for the deficient discovery responses. The special master held that motion in abeyance and never ruled on it.

The case lumbered on until 1990, when Ford (having defeated the class recertification motion) prevailed in the district court on the ground that the court lacked subject matter jurisdiction over the claims of the individual plaintiffs. Ford then filed a bill of costs, of which more than 70% ($24,947.77) represented the fees that it had paid to the special master pursuant to the order of reference. On May 10, 1994, the district court addressed both the bill of costs and plaintiffs' appeal of the special master's July 9 sanctions order. The court described the discovery sanctions issue as "moot" in light of the termination of the litigation and declined to pursue the issue further. It also concluded that the master's fees were properly taxed as costs, for which the plaintiffs' counsel personally were liable by the terms of their retainer agreements. However, because of the "limited involvement" of Missouri counsel, the court declined to tax costs against them.

Ford, Dowdey, and Moore each moved for reconsideration. By order of May 10, 1995, the district court adhered to its decision not to pursue the issue of discovery sanctions. The court believed that the special master had not finally concluded that the plaintiffs had violated the December 11 order because he had given them a final opportunity to supplement their responses after the May orders. The court also reaffirmed the amount of taxable costs, including the special master's fees. As to Missouri counsel, however, the court reversed its earlier ruling and ruled that their role in preparing a statistical database to be used in class certification warranted holding them jointly and severally liable for costs. Conversely, the court relieved Dowdey of responsibility, noting that he had withdrawn as counsel in 1987 and that his involvement in discovery was minimal.

These appeals and cross-appeals challenge the May 10, 1995 order on reconsideration. First, Moore and Missouri counsel, as appellants, contend that the special master's fees should not have been taxed as costs. Second, they contend that in any event Dowdey should have been held jointly and severally liable for whatever costs were properly taxed. Third, Missouri counsel alone maintain that they should have been relieved of liability for costs, as the district court originally ordered. Finally, Ford, as cross-appellant, contends that the district court erred in not assessing monetary discovery sanctions on the plaintiffs' counsel pursuant to the special master's July 9 order.

When Ford filed its bill of costs in 1990 under Federal Rule of Civil Procedure 54(d), the rule provided that "costs shall be allowed as of course to the prevailing party unless the court otherwise directs."2 28 U.S.C.App. (1988). Appellants contend that master's fees do not qualify as "costs" within the meaning of Rule 54(d). Unanimous authority, however, including two decisions from this court, is against them. Walutes v. Morrissette, 11 Fed.R.Serv.2d (Callaghan) 1201, 1202 (D.C. Cir. 1968) (per curiam); Dyker Bldg. Co. v. United States, 182 F.2d 85, 89 (D.C. Cir. 1950); National Org. for the Reform of Marijuana Laws v. Mullen, 828 F.2d 536, 546 (9th Cir. 1987); Gary W. v. Louisiana, 601 F.2d 240, 246 (5th Cir. 1979); Southern Agency Co. v. LaSalle Cas. Co., 393 F.2d 907, 915 (8th Cir. 1968); Trout v. Ball, 705 F. Supp. 705, 707-08 (D.D.C. 1989); see also 9A Charles A. Wright et al., Federal Practice and Procedure § 2608 (1995). Appellants contend that these authorities cannot be considered good law after the Supreme Court's decision in Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987), which they maintain holds that the only "costs" that can be awarded under Rule 54(d) are those explicitly listed in 28 U.S.C. § 1920.3 Because master's [318 U.S.App.D.C. 147] fees are not among the costs enumerated ins 1920, appellants contend that Crawford Fitting prohibits district courts from ever taxing them as costs.

We need not address appellants' Rule 54(d) contentions because the district court properly approved Ford's request for reimbursement of special master's fees under Rule 53(a). Crawford Fitting makes clear not only that costs not enumerated in § 1920 may be taxed if there is a contractual or an express statutory source of authority to do so, id. at 439, 107 S. Ct. at 2496; accord West Va. Univ. Hosp., Inc. v. Casey, 499 U.S. 83, 86-87, 111 S. Ct. 1138, 1140-41, 113 L. Ed. 2d 68 (1991), but also leaves Rule 53(a) unscathed. Rule 53 vests the district court with authority to allocate master's fees in favor of the prevailing party. See 28 U.S.C. § 2071(a) (1994). Under Rule 53(a), " [t]he compensation to be allowed to a master shall be fixed by the court, and shall be charged upon such of the parties ... as the court may direct." As this permissive language suggests, the district court enjoys broad discretion to allocate the master's fees as it thinks best under the circumstances of the case. Apponi v. Sunshine Biscuits, Inc., 809 F.2d 1210, 1220 (6th Cir.), cert. denied, 484 U.S. 820, 108 S. Ct. 77, 98 L. Ed. 2d 40 (1987); Morgan v. Kerrigan, 530 F.2d 401, 427 (1st Cir.), cert. denied, 426 U.S. 935, 96 S. Ct. 2648, 49 L. Ed. 2d 386 (1976); see also Dyker Bldg. Co., 182 F.2d at 89.

While in some cases the costs might best be divided among the parties,4 or charged at least to some extent against the party that created the need for reference to the master,5 the district court has the authority in appropriate cases to tax the master's fees as costs against the losing party.6 We therefore agree with the only other court to consider the matter in light of Crawford Fitting, under Rule 53(a) the court "may direct" that liability for master's fees await the outcome of the case. Fulton Fed., 143 F.R.D. at 294-96. Thus, once the district court exercised its discretion under Rule 53(a), Ford's share of the special master's costs was properly treated as taxable costs.

Appellants separately challenge the district court's assessment of master's fees against them on the ground that the assessment conflicted with the order of reference, which specified that the fees would be "paid 50% by plaintiffs and 50% by defendant," and did not expressly provide that the prevailing party could subsequently recover its share as costs. The order of reference, however, does not purport to allocate responsibility for special master's fees for all time, even after the prevailing party has been identified at the end of the case. See Order of Reference Memorandum, Civ. A. No. 81-1998-JLG (May 10, 1994), at 5 (citing Trout v. Ball, 705 F. Supp. 705, 707 (D.D.C. 1989)). The better practice might well be for the district court to advise the parties in advance that it plans to tax master's fees as costs, either specifically in the order of reference, see, e.g., Fulton Fed., 143 F.R.D. at 296, or generally by local rule, see, e.g., Calloway v. Marvel Entertainment Grp., 111 F.R.D. 637, 652 (S.D.N.Y. 1986), vacated in part on other grounds, 854 F.2d 1452 (2d Cir. 1988), rev'd on other grounds sub nom. Pavelic & LeFlore v. Marvel Entertainment Grp., 493 U.S. 120, 110 [318 U.S.App.D.C. 148] S. Ct. 456, 107 L. Ed. 2d 438 (1989).7 Nevertheless, the district court did not abuse its discretion here by failing to give such advance notice, as evidenced by the apparently widespread practice of treating such fees as taxable costs.

Moore's further contention that he would not have consented to the reference of the case to a special master had he known that he and his co-counsel would be held liable for Ford's share if they lost the case misses the mark. Moore reads the Magnuson-Moss Act, 15 U.S.C. § 2310(d) (2), to guarantee prevailing consumers--but not manufacturers like Ford--recovery of costs, including master's fees. How this feature of the Act could affect Moore's willingness to have the case referred is left unexplained. Whatever the precise contours of the argument, however, it mistakes the nature of the court's power to refer discovery matters to a master: reference does not require the parties' consent. See Fed. R. Civ. P. 53(e) (4). Particularly when the parties are embroiled in repeated, fact-intensive discovery disputes, a district court may find it most efficient to impose on the parties, at their own expense and without their consent, a discovery master. The court's ability to manage its docket and enforce the discovery rules in such a case may depend greatly on its power to allocate the costs of reference as it deems appropriate. Cf. Ex parte Peterson, 253 U.S. 300, 314-15, 40 S. Ct. 543, 547-48, 64 L. Ed. 919 (1920). While the rules do not endorse the routine reference of matters to masters, see Fed. R. Civ. P. 53(b), it is nonetheless clear that masters can enhance a district court's ability pursuant to Rule 1 to "secure the just, speedy, and inexpensive determination" of suits before it, provided that the court has the discretion to tailor the terms of reference to the circumstances of each case.

For these reasons we conclude that the district court did not abuse its discretion by taxing the master's fees against the plaintiffs' counsel.

The question remains who among the plaintiffs' counsel should have borne the costs. Initially, we conclude that the district court acted within its discretion in holding Missouri counsel liable for costs. Moore's retainer agreements with the individual class members provided that counsel would pay the costs of litigation, and Missouri counsel, aware of those agreements, joined the case as co-counsel. Moreover, Moore and Missouri counsel entered into an agreement regarding fees and costs, which provided that Missouri counsel would reimburse Moore for one-half of the costs and expenses of the case.

Missouri counsel nonetheless contend that their role in the case was so limited that it was an abuse of discretion to hold them jointly and severally liable for costs. If there were ever a case in which such an argument could be sustained, this is not it. Missouri counsel have been counsel of record in this matter since 1985. They assumed responsibility for managing discovery, one of the most crucial and labor-intensive aspects of this mammoth case. The district court could properly find significant Missouri counsel's efforts in compiling a database of park-to-reverse incidents involving Ford vehicles. Their inability to discharge their discovery responsibilities may have contributed to the plaintiffs' ultimate defeat, and regardless of whether the crippling "schism" at their law firm was their fault, it was not the fault of anyone else involved in this litigation.

Missouri counsel fault the district court's reliance on the database on the grounds that most of the work was done by paralegals and secretaries at their law firm. Again, it is difficult to understand what this proves, for if Missouri counsel are not responsible for the work done by their own employees, they have not explained who else in the case is. Finally, Missouri counsel compare their position to Dowdey's, contending that if Dowdey is not required to pay costs given his limited involvement in the case, neither should they. Because we conclude that Dowdey should not have been let off the hook either, this argument evaporates.

Unlike Missouri counsel, Dowdey had the foresight to withdraw as early as 1987. He maintains that because he was not counsel in the case when Ford became the prevailing party, and in fact left because he foresaw that Moore's tactics would lead to [318 U.S.App.D.C. 149] defeat, he cannot be saddled with costs that are contingent on Ford's victory. The district court agreed with this analysis, and also credited Dowdey's account of his minimal role in the litigation. Accepting the facts found by the district court, we nonetheless conclude that the court erred in not imposing joint and several liability on Dowdey.

Dowdey, unlike Missouri counsel, was counsel of record from the outset. He was on the brief in the first appeal to this court, when class certification was vacated. By the time he withdrew, the plaintiffs' case was in disarray on the eve of the crucial class recertification motion, with discovery sanctions outstanding and a counsel team that the special master suggested was incapable of handling a case of this magnitude and complexity. In fairness to his colleagues, it cannot be said the case was lost entirely after Dowdey left; this defeat was a team effort that was well underway by the time Dowdey withdrew.

Nor does Dowdey's limited role in discovery matters alter the situation. First, during the crucial months at the end of 1986 and the beginning of 1987, it appears that none of the plaintiffs' counsel were actually accomplishing much by way of responding to discovery. Thus, it is difficult to understand how Dowdey's inactivity distinguishes him from his erstwhile co-counsel. The special master acknowledged as much in holding all counsel liable for discovery sanctions. Second, and more important, the costs assessed by the district court reflected the litigation as a whole, not just discovery. By the time Moore tried to enlist Dowdey's assistance with discovery in 1987, the case had been active for the better part of a decade, including a trip to the circuit court and back. Throughout this period, Dowdey was part of the counsel team and presumably carried out the responsibilities that were apportioned to him, however limited those responsibilities might have been. Finally, if it is true that Dowdey did virtually nothing during the six years in which he was counsel of record, that is hardly to his credit. We cannot put it any better than did the special master:

Those attorneys who did not participate in preparation of these responses and papers have not shown that they had a reasonable basis to believe that plaintiffs' discovery obligations were or could be adequately discharged by those to whom the baton was apparently passed. These attorneys knew, or were required to know, that plaintiffs were not providing discovery pursuant to the Federal Rules of Civil Procedure for even if they were no longer responsible for the discovery phase of this case, they must still supervise and remain aware of all aspects of the instant case. There is no evidence that these attorneys discharged that obligation. The record supports, if it does not compel, the conclusion that these attorneys permitted, or acquiesced in and thereby "condoned," serious discovery abuse extending over many months.

(internal citations and quotation marks omitted). Rather than simply insisting that his name be removed from offending pleadings, Dowdey had an obligation to the court and to his clients to see that the case was properly litigated. Cf. D.C.Code of Professional Responsibility DR 2-107(A) (3)8 (1991 edition); id. DR 6-101(A).9 While it appears that Dowdey attempted in vain to persuade Moore and other members of the counsel team to take a more responsible course of action, the fact remains that he had cast his lot with them and must accept his share of the consequences of defeat.10

That said, we find no abuse of discretion by the district court in ruling that Dowdey was not responsible for the costs that were incurred by Ford after Dowdey withdrew [318 U.S.App.D.C. 150] from the case. Dowdey is jointly and severally responsible only for the costs incurred while he was counsel of record, as a member of the plaintiffs' counsel team. Unlike Missouri counsel, who agreed to contribute to those costs incurred before they joined the case, Dowdey entered into no agreement to pay for costs wholly unrelated to his duties and responsibilities as counsel.

Finally, on the question of discovery sanctions, the district court rebuffed Ford's request to assess monetary sanctions against the plaintiffs' counsel because, as the court read the special master's reports, the special master had not "finally" determined that the plaintiffs had violated a discovery order. It is true that even after the May orders, the special master gave the plaintiffs another chance to supplement their deficient discovery responses and never decided whether the supplemental responses were independently sanctionable. However, it is equally clear that the special master found that the plaintiffs violated the December 11 discovery order and that Ford was entitled to recover the expenses it incurred as a result of that violation.

To review the chronology briefly, the plaintiffs initially failed to respond at all to many of Ford's interrogatories. On Ford's motion, the special master entered the December 11 order, pursuant to Federal Rule of Civil Procedure 37(a), ordering the plaintiffs to respond. The responses were inadequate. By again failing to file adequate responses in a timely fashion, the plaintiffs violated the December 11 order. That forced Ford to go back to the special master on May 5 and May 28 and obtain two more orders compelling supplemental responses. As the special master recognized, even if the supplemental responses produced in response to the May orders ultimately did satisfy the plaintiffs' discovery duties, Ford still deserved to be compensated for its costs in forcing the plaintiffs to make those supplemental responses. Consequently, the fact that the master gave the plaintiffs another chance to furnish adequate responses before imposing the litigation sanctions available under Rule 37(b) (2) (A-D) does not affect the plaintiffs' liability for monetary sanctions for the original violation of the December 11 order.

The July 9 order shows that this is how the special master understood the situation. " [D]isposition turns on whether plaintiffs have shown that failure to comply with the first [December 11] Rule 37 order was substantially justified.... Further discovery responses filed after entry of the second [May 5] Rule 37 order are relevant only insofar as those responses bear on claims advanced to justify noncompliance with the initial order." After rejecting the plaintiffs' purported justifications, the special master concluded:

Defendant has limited its application to the expenses reasonably attributable to the relief it obtained by orders entered on May 5 and 28, 1987. That is a conservative and fully fair measure of the "reasonable expenses, including attorney's fees, caused by the failure" to comply with the December 11 order. The parties will be directed to confer concerning the amount of a reasonable award and, if agreement cannot be reached, to propose a schedule for evidentiary submissions addressed to remaining issues.

(quoting Fed. R. Civ. P. 37(b) (2)) (other citations omitted). In an accompanying order, the special master concluded that Missouri counsel, Moore, and Dowdey were each jointly and severally liable to defendant for its reasonable expenses, including attorney's fees and compensation and expenses paid under the order of reference, caused by plaintiffs' failure to comply with the order of December 11, 1986 and reasonably attributable to the relief defendant obtained by orders entered May 5 and May 28, 1987.

Given these findings, the district court erroneously declined to pursue the sanctions issue.

Ford contends that the only task for the district court on remand is to calculate the amount of the sanction. The special master's May 5 order, which the plaintiffs did not appeal, found that the plaintiffs had violated [318 U.S.App.D.C. 151] the December 11 order. Ford maintains that the plaintiffs therefore waived their challenge to the special master's finding that they were liable for a violation. We disagree. While the May 5 order did find a violation, it expressly reserved decision on whether to impose sanctions. Once the master decided to impose sanctions on July 9--although he never fixed an amount--the plaintiffs did seek district court review. We decline to hold that the plaintiffs waived an issue by failing to take what amounts to an interlocutory appeal. Thus, on remand, the plaintiffs' counsel may assert their claim that they never violated the December 11 order.

Loathe as we are to revisit upon the district court a case that it once described as a "trial court's nightmare of a litigation monster," Walsh v. Ford Motor Co., 130 F.R.D. 260, 277 (D.D.C. 1990), one piece of it remains to be addressed: Ford's request for discovery sanctions for the plaintiffs' violation of the special master's December 11, 1986, discovery order. On remand the district court does not necessarily have to review in detail each of the interrogatories and responses, but may evaluate Ford's counsel's challenge in light of the special master's findings as well as any submissions that the court may order by either parties' counsel indexing or otherwise identifying material interrogatories and responses. Cf. Fed. R. Civ. P. 53(e) (" [T]he court shall accept the master's findings of fact unless clearly erroneous."). Any sanction thereafter imposed, of course, cannot duplicate recovery of a portion of the special master's fees that Ford has already recovered as taxable costs.

Accordingly, we vacate the portion of the district court's order declining to reach the sanctions issue and remand for a reevaluation; we otherwise affirm the order taxing as costs Ford's share of the special master's fees except insofar as the order excused counsel Landon Dowdey from joint and several liability with his co-counsel for costs incurred while he was counsel of record.

*
Circuit Judge Henderson did not participate in the order for rehearing in banc

1
Order Concerning Costs, Civ. A. No. 81-1998-JLG (Apr. 25, 1995); Memorandum, id. (Mar. 10, 1995); id. (May 10, 1994)

2
We do not consider Rule 54(d) as amended in 1993. Rule 54(d) (1) & (2) (1993)

3
Section 1920 provides:

A judge or clerk of any court of the United States may tax as costs the following:

(1) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.

28 U.S.C. § 1920 (1994).

4
See, e.g., United States v. Suquamish Indian Tribe, 901 F.2d 772, 775 (9th Cir. 1990); United States v. Cline, 388 F.2d 294, 296 (4th Cir. 1968)

5
See, e.g., Johnson Fare Box Co. v. National Rejectors, Inc., 269 F.2d 348, 351 (8th Cir. 1959); National Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 562 (N.D. Cal. 1987)

6
See, e.g., K-2 Ski Co. v. Head Ski Co., 506 F.2d 471, 476-77 (9th Cir. 1974); Fulton Fed. Sav. & Loan Ass'n v. American Ins. Co., 143 F.R.D. 292, 295-96 (N.D. Ga. 1991)

7
Unlike the local rule cited in Calloway, District of Columbia District Court local rules do not specify whether master's fees are to be taxed. Cf. D.D.C. R. 210, 214

8
DR 2-107(A) (2) provides: "A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or law office, unless ... [t]he division is made in proportion to the services performed and responsibility assumed by each."

9
DR 6-101(A) provides: "A lawyer shall not ... [h]andle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it [nor] [n]eglect a legal matter entrusted to him."

10
Dowdey, Moore, and Missouri counsel entered into a settlement agreement of a collateral interpleader action in February 1990. Dowdey contends that in this settlement the other members of the team agreed to indemnify him for costs that might be assessed against him in the instant litigation. We express no opinion on the legal effect of the settlement, nor should our opinion be read to prevent Dowdey from attempting to enforce his understanding of it
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Re: AN unREASONABLE MAN, directed by Henriette Mantel

Postby admin » Wed Jul 29, 2015 1:30 am

41 F.2d 1217
291 U.S.App.D.C. 300

DEMOCRATIC CENTRAL COMMITTEE OF the DISTRICT OF COLUMBIA, et al., Petitioners, v. The WASHINGTON METROPOLITAN AREA TRANSIT COMMISSION, Respondent, D.C. Transit System, Inc., Intervenor.

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Nos. 21865, 24398, 24415 and 24428.

United States Court of Appeals,

District of Columbia Circuit.
Aug. 9, 1991.

[291 U.S.App.D.C. 301] On Motion for Attorney's Lien.

Before BUCKLEY and RANDOLPH, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

1
PER CURIAM.

2
Beverly C. Moore, Jr., who was hired by Landon G. Dowdey, lead counsel for Democratic Central Committee ("DCC"), as an attorney to perform several tasks in the above entitled consolidated cases, moves the court to grant him "an attorney's lien, on funds in the possession of the court against DCC counsel Landon G. Dowdey ..." in the amount of $20,708, plus interest.

A. Background Facts

3
Mr. Moore asserts several separate bases for his claim to a lien and the amount thereof. Moore rendered legal services in preparing a "fee application" for Dowdey in the DCC consolidated cases. Moore and Dowdey entered into a written contract whereby Dowdey agreed to pay Moore $15,707.86 for legal services performed by Moore in the DCC case within 10 days of "Dowdey's receipt of any fee award proceeds" in that case. A subsequent Settlement Agreement between Dowdey and Moore in a separate interpleader action, not related to the DCC case, modified the prior attorney's fee contract between Dowdey and Moore, in consideration for monetary concessions made by Moore to Dowdey in cases unrelated to DCC. All the foregoing resulted in a total "amount to be paid to Moore by Dowdey [of] $20,708.00" from attorney's fees Dowdey would receive for his services in the DCC cases.

4
Upon the foregoing factual allegations Moore contends, in view of Dowdey's contractual obligation to pay him $20,708, that any payments for attorney's fees to which Dowdey becomes entitled in the DCC cases should "be subject to Moore's attorney lien and should by Order of this Court be paid [291 U.S.App.D.C. 302] [by the Trust Company] directly to Moore and not to Dowdey." Motion 5.

B. Jurisdiction

5
The Washington Metropolitan Area Transit Regulation Compact (the "Compact") defines this court's jurisdiction as follows:

6
Jurisdiction is hereby conferred upon the ... United States Court of Appeals for the District of Columbia Circuit ... to review orders of the Washington Metropolitan Area Transit Commission as provided by section 17, article XII, title II, of the Washington metropolitan area transit regulation compact....

7
D.C.Code § 1-1415 (1967), Pub.L. No. 86-794, § 6, 74 Stat. 1031, 1051 (1960) (emphasis added). The Compact vests in this court jurisdiction to enforce an appropriate attorney's lien in the present case based upon our continuing jurisdiction over the DCC case as reserved in the court's order of February 26, 19901 approving the Compromise Agreement, the court's inherent equitable powers to enforce its own order granting attorney's fees, and the common fund or benefit exception to the American Rule which allows a court to award fees and expenses to the prevailing party from a fund recovered through his efforts that benefit the class. See, e.g., Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973).

C. The Attorney's Lien

8
The existence and effect of an attorney's lien is governed by the law of the place in which the contract between the attorney and the client is to be performed. 7 Am.Jur.2d Attorneys at Law § 351, at 354 (1980). Chief Judge Aubrey Robinson in Martens v. Hadley Memorial Hospital, 753 F.Supp. 371, 372 (D.D.C.1990), pointed out that "While there is no D.C. statute setting out an attorney's lien, D.C. case law has long recognized the validity of an attorneys' charging lien in proceeds obtained through judgment and recovery where the client and the attorney understood that the attorney would be paid out of the case's proceeds." (Emphasis added).

9
Moore's contractual claim does not satisfy the District of Columbia or common-law requirements for an attorney's lien. In fact, an attorney's lien is not an appropriate remedy for Moore to seek for his alleged claim. Attorney's liens are asserted by counsel against the client. Moore is not seeking a lien on his client's funds; rather, he wishes the court to assert a lien against Dowdey, who associated him to do some legal work in the case.

10
Furthermore, Moore, as an associate counsel, has no agreement with the client, DCC, providing that his fee would be paid from the judgment. An associate counsel can only obtain an attorney's lien if the client authorizes or ratifies his employment by the principal attorney and the client agreed to have his associate's fee paid from the judgment. Hahn v. Oregon Physicians' Service, 786 F.2d 1353, 1355 (9th Cir.1985) (An attorney associated with lead counsel has no right to a lien against the ultimate recovery in the absence of an independent contract between him and the clients.). There is no such agreement here between Moore and DCC. See also Snyder v. Smith, 132 Neb. 504, 272 N.W. 401, 402 (1937); Smith v. Wright, 153 Mo.App. 719, 134 S.W. 683 (1911); Harwood v. La Grange, 137 N.Y. 538, 32 N.E. 1000 (1893); Miller v. Miller, 83 S.D. 227, 157 N.W.2d 537, 541-42 (1968) (A valid contract for attorney's fees, express or implied, between attorney and client is necessary for the existence of an attorney's lien.); People ex rel. Stephens v. Holten, 304 Ill. 394, 136 N.E. 738, 740 (1922) (An attorney's lien for fees must be based upon some contract with the client in order to subject the results of an action to a lien.); Goodwin Film & Camera Co. v. Eastman Kodak Co., 222 F. 249, 250 (1915) ("Where an [291 U.S.App.D.C. 303] attorney employs associate counsel on his own account, such associate counsel has no lien on the results of the action."). In sum, in order to assert a valid attorney's charging lien, there must be an agreement between client and counsel, either express or implied, that the attorney's fee would be paid from any recovery in the case.2 7A C.J.S. Attorney & Client § 361, at 721; 7 Am.Jur.2d Attorneys at Law § 324, at 337. This principle applies equally to lead counsel and associate counsel.

11
Further, the contract upon which Moore bases his lien claim provides that his attorney's fees were to be paid to Moore "out of any attorney fee award ... that Dowdey ultimately receives for his work in [the bus fare overcharge case]." July 14, 1989 Contract, 1. Thus, under their contract, upon which Moore relies, he has no claim to his fee against the Security Trust Company or any of the moneys in the custody of the court in the DCC case.

12
In fact, it would be inappropriate for this court to attempt to resolve the controversy between these attorneys in light of the manner in which the Compromise Agreement deals with the attorney's fees incurred and to be awarded in this case. The Compromise Agreement, approved by the parties, provides that "Landon G. Dowdey ... agrees to indemnify and hold D.C. Transit and the restitutionary fund harmless from liability for any and all claims for attorneys' fees and expenses of any person arising out of the cases covered by this Compromise Agreement." Compromise Agreement at p 5.2(a). This provision intended that associate counsels' fees would be paid from the attorney's fees awarded to Landon G. Dowdey and Gilbert Hahn, attorneys-in-fact for petitioners. It provides that the court will not be involved in attorney's fee controversies between Dowdey and Hahn and their respective associate counsel. As a result, the court should not now be in the business of resolving individual attorney's fee claims against either Dowdey or Hahn. To illustrate, Moore's individual fee application of April 28, 1989 became moot as a direct result of the Court's order of August 6, 1989, which approved the portion of the settlement agreement regarding attorneys' fees. Thus, it would be inappropriate to now attempt to resolve Moore's individual attorney's fee claim through his application for an attorney's lien.

CONCLUSION

13
Therefore, for the foregoing reasons, upon consideration of Moore's Motion for Attorney's Lien, Dowdey's Opposition to the Motion and Moore's Reply to Dowdey's Opposition, the Motion is denied.

14
Order accordingly.

1
The Court's Order Approving Settlement and Establishing Riders' Fund provides:

ORDERED, that the Court retains jurisdiction of all matters in all subject cases until further order of the Court, and specifically retains jurisdiction to resolve any and all disputes arising under or relating to this settlement and with respect to all subject litigations.

February 26, 1990, Order 4.

2
Continental Casualty Co. v. Kelly, 106 F.2d 841, 844 (D.C.Cir.1939), cited by Moore is distinguishable from this case in that the attorney claiming the lien had a contingent fee contract with the client
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Re: AN unREASONABLE MAN, directed by Henriette Mantel

Postby admin » Wed Jul 29, 2015 1:42 am

James S. Turner, Esq.
By Raquel
October 7, 2007
http://consciouswoman.org/category/semi ... urner-esq/

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James S. Turner, Esq. is the chair of Citizens for Health, a national nonprofit consumer advocacy group working to broaden health care options, create an integrative health system based on wellness, and advance the freedom to make health choices. One of the original Nader’s Raiders and long-time advocate of informed choice for safe food, drugs and other consumer products, he has authored two best-selling books, The Chemical Feast: The Nader Report on Food Protection at the Food and Drug Administration and Making Your Own Baby Food. As a partner in the Washington D.C. law firm of Swankin & Turner (organized in 1973), Jim represents businesses as well as individuals and consumer groups in a wide variety of regulatory matters concerning food, drug, health, environmental and product-safety matters. He has appeared before and/or advised the Food and Drug Administration, Environmental Protection Agency, Consumer Product Safety Commission and Federal Trade Commission, as well as the Department of Agriculture and the National Institutes of Health. He has served as Special Counsel to the Senate Select Committee on Food, Nutrition, and Health, and to the Senate Government Operations Subcommittee on Government Research. Jim helped organize the successful campaign to lobby Congress for passage of the Organic Food Production Act of 1990 and lead the legal team that in 1996 persuaded the FDA to reclassify acupuncture needles as safe and effective for legal U.S. importation and distribution. He is a graduate of the Moritz College of Law at The Ohio State University (1969), holds a B.A. in history and political science from Ohio State University College of Arts and Sciences (1962) and served as a gunnery and nuclear weapons handling officer on ships in the U.S. Navy from 1962 to 1966.
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Re: AN unREASONABLE MAN, directed by Henriette Mantel

Postby admin » Wed Jul 29, 2015 2:02 am

DEMOCRAT

An interview with Citizens for Health Board Chair James S. Turner
by Linda Bonvie
Food Identity Theft editor
February 18, 2014

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Image
Jim Turner

In an age when it’s not unusual for consumer petitions and outrage to cause big food manufacturers to remove ingredients, when the “informed” consumer is becoming more the norm than not, and easy access to dietary supplements is a “given,” it may be difficult for those too young to recall the original campaigns calling for safer and healthier products to realize how dramatically things have evolved over the last four decades.

To get a better perspective on what’s been accomplished and what has yet to be, as well as the role that Citizens for Health (CFH) has played in enabling consumers to make informed choices, I spoke with CFH board chair and food consumer activist James S. Turner, a partner in the Washington D.C. law firm of Swankin & Turner.

Turner, author of the landmark 1970 book, The Chemical Feast: the Nader report on food protection at the FDA and co-author of a follow-up book, Making Your Own Baby Food and more recently, Voice of the People: the Transpartisan Imperative in American Life, was one of the original “Nader’s Raiders,” a group of graduate, medical, and law, students who, working with consumer advocate Ralph Nader, investigated and ultimately changed many policies and gave new life to investigative journalism in the 1960s and ’70s.

Turner recounted his first meeting with Nader after a nine-month attempt to get an audience with him, sparked by a law-school assignment in 1966 to study Nader and his role in bringing about auto-safety reforms. Although Nader at the time was known only as a critic of the auto industry (having authored the book Unsafe at Any Speed), Turner realized as the class progressed that he was much more — that he was someone who “was actually arguing for corporate responsibility.” Starting with their meeting in March of 1968, he used his growing knowledge of food issues (inspired by the birth of his son Chris in 1966) as the basis for a whole new collaboration with Nader, one that culminated is Turner’s authoring The Chemical Feast.

FIT: You call yourself a food consumer activist. How did you get into that line of work and do you find it satisfying?

TURNER: Absolutely satisfying. I started out in 1968 investigating food additives, and I’ve been doing it ever since.
In 1969, my 25-student Nader team (mostly from law and medical schools) went to the Food and Drug Administration to focus on food additives, including the artificial sweetener cyclamate, which after a review the FDA took off the list of chemicals that are Generally Recognized as Safe (GRAS) for addition to food. As a result of the cyclamate manufacturers having been unable to prove the product’s safety to the satisfaction of the FDA, it has remained off the market ever since.

In 1975 I helped get a warning placed on saccharine, another synthetic sweetener, and from 1974 to 1981 I worked with the scientists who persuaded an FDA Public Board of Inquiry that aspartame (NutraSweet) needed more research before it could be marketed. However, Reagan’s newly appointed FDA commissioner reversed the board in July of 1981. Donald Rumsfeld, president of the Company seeking Aspartame/NutraSweet approval served on Reagan’s presidential transition team, had found the new commissioner among doctors who worked at the Defense Department in the mid-1970s when he was secretary, and decided not to redo research his company had done on the sweetener, which the FDA had found flawed.

In 1976 I worked with Wisconsin Senator William Proxmire to help protect consumer access to dietary supplements with the passage of the 1976 Proxmire Act, and again in 1994 as part of CFH, campaigned for the successful passage of the Dietary Supplement Health and Education Act (DSHEA). The part I’ve played in all of these issues and many more is one I’ve found very gratifying

FIT: What was the issue with cyclamate?

TURNER: When I first advised Nader “let’s do food,” I pointed out that food would exemplify the same things he was talking about in cars. And sure enough, we found that just like the car market, where the mantra was “safety doesn’t sell,” the food industry said nutrition didn’t sell. With cars, they sold design and prestige, while in the food industry the focus was on convenience, and, of course, sweetness. An excellent example has been the reliance on artificial sweeteners. When the 1938 Food and Drug Act was passed, there were a number of things that needed to be addressed further. To this end, Congress appointed a Select Committee to Investigate the Use of Chemicals in Food and Cosmetics (1950-52) which came up with several major amendments: Three of these were the Pesticide Act of 1954, the Food Additive Act of 1958, and the Color Additive Act of 1960.

These acts each created a regulatory mechanism for the additive they were addressing. The Food Additive Act, for example, said no food additive could be put into the food supply until it had been proven to be safe by the food industry. So industry had to turn in data to the FDA that would show “this is safe.” There were several exceptions, one being the Generally Recognized as Safe (GRAS) list. In the 1958 Food Additives Act there was this GRAS list exception, and the idea was that if no scientists raised questions about an additive, then it was GRAS. They put out a list of about 100 or so chemicals to the scientific community asking, “Do you think these qualify as GRAS?” Virtually all the scientists who responded on cyclamate said no, but the FDA allowed it on the GRAS list anyway.

When we sent our students out we added the GRAS list as a subject that should be looked at. We talked to everybody we could find at the agency, and one of the things we uncovered was the cyclamate story. And the evidence was building up that not only shouldn’t it be on the GRAS list, but it was inherently dangerous and likely shouldn’t be used in the food supply at all. That’s how we got involved with it.

Due to our investigation into cyclamate, one night two network news programs led with that story and it developed into a big firestorm. Within a week the FDA announced plans to remove cyclamate from the GRAS list, and that launched all this public awareness of what we were doing. That’s the opening story in The Chemical Feast.

FIT: Have you been involved in similar efforts with other questionable sweeteners?

TURNER: Yes, both saccharine and aspartame. When I got involved with saccharine, I did not think banning it was a good idea based on the law and science, but I thought a warning was. Ultimately, Congress adopted a warning and that warning was on the saccharine packages until 2000, when it was ‘pardoned’ by President Clinton at the end of his term with a law he signed erasing the warning.

FIT: How did you get involved with aspartame?

TURNER: I became involved with a group of scientists led by Dr. John Olney, from Washington University in St. Louis who were investigating the addition of MSG to baby food.

Dr. Olney was doing studies on various kinds of food additives to determine whether they might be among the causes of mental retardation. He had an assay that he used to show when the brain is being damaged by a chemical. MSG was one such substance, as was aspartic acid, one of two amino acids in aspartame, which caused the same kind of brain damage in animals that MSG did.

In 1970 we started looking into NutraSweet (the brand name under which aspartame was first marketed). When the FDA approved it in 1974, we objected and the agency granted us a hearing before a Public Board of Inquiry which stopped the marketing of NutraSweet until the end of the hearing.

In 1980 Ronald Reagan was elected president, and he placed Donald Rumsfeld, the president of Searle, the drug company that originally made NutraSweet, on his transition team. Rumsfeld facilitated the appointment of the new FDA commissioner, Arthur Hull Hayes, who quickly overturned the ruling not to allow NutraSweet to be marketed. So that which had been won by a scientific process was lost to a political process.

FIT: What is the focus of Citizens for Health?

TURNER: Basically it is choice, information, redress and safety that comprise our fundamental approach, because those are the consumer rights that President Kennedy envisioned in 1962 in a message to Congress. Those four things are what Kennedy said were the inherent rights of consumers in the marketplace.

CFH began by working hard for passage of The Dietary Supplement Health and Education Act (DSHEA) in 1994, which passed Congress overwhelmingly. CFH coordinated a campaign that generated well over one million letters, which still remains the largest number of letters written to Congress on any single issue. The idea was to stop the FDA from blocking access to information about vitamins, minerals, amino acids and certain other dietary supplements.

CFH believes that provided with proper information, consumers can make sound choices and intelligently comment on and participate in marketplace decisions. Once that that process is run fairly, CFH believes, safer, healthier, and more nutritious and effective products will ultimately emerge.

FIT: Who are CFH’s allies?

TURNER: We’re work with a wide variety of groups and individuals, and in our campaigns we ally ourselves with business interests that share our goals. In the campaign for DSHEA in 1994 we worked very closely with the retail natural food industry. In fact the president and founder of CFH was a health-food store owner who was also the president of the trade association for that industry. He felt that the trade association wasn’t doing enough in the public interest, so if he could create a consumer group that worked with the same issues, consumer interests would better be served.

That was the philosophy CFH was created with and why and how we got involved promoting DSHEA. When organic food came under attack in 1999 we worked very closely with the Organic Trade Association as well. CFH has conducted several information campaigns on alternative sweetener issues, and recently we’ve also received funding from the Sugar Association individual consumers, bequests and foundations.

FIT: Why is high fructose corn syrup such an important issue for CHF?

TURNER: We’ve always found artificial sweeteners to be a particularly egregious example of how the entire food system works. The thing about synthetic sweeteners is that they offer no real benefits that justify the risks involved in ingesting them, beyond the argument that using the non-caloric ones to sweeten food or beverages help keep weight off. But scientists are increasingly concerned that man-made, non-caloric sweeteners contribute to the problem of weight gain rather than helping address it. With HFCS, however, there isn’t even that specious rationale. It became ubiquitous in our food supply because, as a result of advancements in technology, it can be processed cheaply, allowing the food industry to save money by substituting HFCS for sugar. In an effort to cloak HFCS as healthy, industry has spent a lot of money trying to portray it as “natural” to consumers. But the fact is, none of the HFCS formulations are found in nature and HFCS did not exist until scientists patented a process to synthesize it from starch—any starch –,and this is done by using advanced technology to change the starch at the molecular level.
There has been a great deal of data emanating from all kinds of different scientific sources about the effects of HFCS consumption. The CFH’s role is to let the public know about this information, as well as the disinformation it’s getting from the corn processors.

We want to promote awareness that scientists believe that HFCS is different from natural sugar, that sugar consumption has remained relatively constant over the last 100 years, that paralleling the rise in HFCS consumption has been a huge increase in diabetes and obesity (and bottled water sales to ensure that everybody understands that correlation is not causation). We want the public to know that FDA has not approved HFCS containing more than 55 percent fructose, but many products have well above 55 percent all the way up to 90 percent fructose. We believe consumers should be aware of these facts and that the corn industry is attempting to hide them.

We are not arguing that HFCS has caused health problems; what we’re saying is that scientists are concerned about the prevalence of HFCS in our food supply. And, if a fair market is to live up to its word that it allows informed consumers to choose the best products available, it is very important for the public and regulators to know what those scientists have said and to take that into consideration. That’s the dynamics of CFH, to enable people to make informed choices.

Also, even though the FDA says that 55 percent fructose in HFCS is the maximum amount it considers to be GRAS, the Corn Refiners Association has continued to say that much higher doses are allowed by the agency.

The HFCS process is a gold-plated example of how a business model is created, – i.e., let’s sell a sweetener to the food industry and then make up arguments that diverge from the core issues.

FIT: How can consumers make the biggest impact on the food supply?

TURNER: Without a doubt by the way they buy. More and more people are making buying choices based on what they learn, and those are often quite different from what the food industry would like them to do. It is through such collective purchasing decisions that reforms come about. Harmful additives are removed by manufacturers, and wholesome and organic products are made more readily available when consumers demand these choices.

Editor’s s note: The following sources offer further reading on the health implications of HFCS use:

Ed. [L. Cantley, Cancer, metabolism, fructose, artificial sweeteners, and going cold turkey on sugar, BMC Biology 2014, 12:8; S. Swithers, Artificial sweeteners produce the counterintuitive effect of inducing metabolic derangements. Cell Press (2013).] Ed, See, e.g. Global Public Health (2012) 1-10, High fructose corn syrup and diabetes prevalence: A global perspective, Goran, Ventura, Ulijaszekb; Eur J Nutr (2012) 51:445–454; Metabolic and behavioural effects of sucrose and fructose/glucose drinks in the rat, Sheludiakova, Rooney, Boakes; Metabolism Clinical and Experimental 61 (2012) 641-651, Effects of high-fructose corn syrup and sucrose on the pharmacokinetics of fructose and acute metabolic and hemodynamic responses in healthy subjects, Le, Frye, Rivard, Cheng, McFann, Segal, Johnson, Johnson; Eur J Nutr. (2010) 49:1–9, Comparison of free fructose and glucose to sucrose in the ability to cause fatty liver, Sánchez-Lozada, Mu, Roncal, Sautin, Abdelmalek, Reungjui, Le, Nakagawa, Lan, Yu, Johnson; Pharmacology, Biochemistry and Behavior 97 (2010) 101–106, High-fructose corn syrup causes characteristics of obesity in rats: Increased body weight, body fat and triglyceride levels, Bocarsly, Powell, Avena, Hoebel; Experimental Biology and Medicine 234[6] (2009) 651-661, The type of caloric sweetener added to water influences weight gain, fat mass, and reproduction in growing Sprague-Dawley female rats, Light, Tsanzi, Gigliotti, Morgan, Tou.],

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Re: AN unREASONABLE MAN, directed by Henriette Mantel

Postby admin » Wed Jul 29, 2015 2:18 am

JAMES S. TURNER
by Swankin & Turner, Attorneys at Law
7/28/15
http://www.swankin-turner.com/jim.html

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James S. Turner, a principal in the firm, represents businesses as well as individuals and consumer groups in a wide variety of regulatory matters concerning food, drug, health, environmental and product-safety matters. He has appeared before every major consumer regulatory agency, including the Food and Drug Administration, Environmental Protection Agency, Consumer Product Safety Commission and Federal Trade Commission, as well as the Department of Agriculture and the National Institutes of Health. Mr. Turner has served as special counsel to the Senate Select Committee on Food, Nutrition, and Health and to the Senate Government Operations Subcommittee on Government Research. He has also been a policy consultant to major corporations in the food, pharmaceutical and telecommunications industries, including such companies as Kraft Foods, The Quaker Oats Company, Hoffmann-LaRoche and AT&T. Mr. Turner was the lead attorney on a successful petition to the FDA to reclassify acupuncture needles from Class III to Class II medical devices, permitting their legal importation and distribution. He is a graduate of The Ohio State University School of Law.

Articles and speeches by Jim

Adam Smith Without Arrogance
Jefferson's Flaws: Are They Beyond Redemption?
FDA and The Nutrition Community, Past, Present and Future…
Dietary Supplements -- Health Care Reform and The Congress
Articles about Jim

Megatrends, by John Naisbitt
Organizations Jim is affiliated with

Citizens for Health
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Re: AN unREASONABLE MAN, directed by Henriette Mantel

Postby admin » Wed Jul 29, 2015 2:28 am

Jefferson's Flaws: Are They Beyond Redemption?
Synopsis of a Proposal for A response to Conor Cruise O'Brien's "Thomas Jefferson: Radical and Racist"
by James S. Turner

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YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.


To emancipate all slaves born after passing the act. The bill reported by the revisers does not itself contain this proposition; but an amendment containing it was prepared, to be offered to the Legislature whenever the bill should be taken up, and further directing that they should continue with their parents to a certain age, then be brought up, at the public expense, to tillage, arts or sciences, according to their geniuses, till the females should be eighteen, and the, males twenty-one years of age, when they should be colonized to such place as the circumstances of the time should render most proper, sending them out with arms, implements of household, and of the handicraft arts, seeds, pairs of the useful domestic animals, &c., to declare them a free and independent people, and extend to them our alliance and protection, till they shall have acquired strength; and to send vessels at the same time to other parts of the world for an equal number of white inhabitants; to induce whom to migrate hither, proper encouragements were to be proposed. It will probably be asked, Why not retain and incorporate the blacks into the State, and thus save the expense of supplying, by importation of white settlers, the vacancies they will leave? Deep-rooted prejudices entertained by the whites; ten thousand recollections by the blacks of the injuries they have sustained; new provocations; the real distinctions which Nature has made; and many other circumstances, will divide us into parties, and produce convulsions, which will probably never end but in the extermination of the one or the other race. To these objections, which are political, may be added others, which are physical and moral. The first difference which strikes us is that of color. Whether the black of the negro resides in the reticular membrane between the skin and scarf skin, or in the scarf skin itself; whether it proceeds from the color of the blood, the color of the bile, or from that of some other secretion, the difference is fixed in Nature, and is as real as if its seat and cause were better known to us. And is this difference of no importance? Is it not the foundation of a greater or less share of beauty in the two races? Are not the fine mixtures of red and white, the expressions of every passion by greater or less suffusions of color in the one, preferable to that eternal monotony which reigns in the countenances, that immovable veil of black which covers all the emotions of the other race? Add to these flowing hair, a more elegant symmetry of form, their own judgment in favor of the whites, declared by their preference of them, as uniformly as is the preference of the Oranootan [orangutan] for the black women over those of his own species. The circumstance of superior beauty is thought worthy attention in the propagation of our horses, dogs, and other domestic animals; why not in that of man? Besides those of color, figure and hair, there are other physical distinctions proving a difference of race. They have less hair on the face and body. They secrete less by the kidneys, and more by the glands of the skin, which gives them a very strong and disagreeable odor. This greater degree of transpiration renders them more tolerant of heat, and less so of cold, than the whites. Perhaps, too, a difference of structure in the pulmonary apparatus, which a late ingenious experimentalist has discovered to be the principal regulator of animal heat, may have disabled them from extricating, in the act of inspiration, so much of that fluid from the outer air, or obliged them in expiration, to part with more of it. They seem to require less sleep. A black, after hard labor through the day, will be induced by the slightest amusements to sit up till midnight, or later, though knowing he must be out with the first dawn of the morning. They are at least as brave, and more adventuresome. But this may perhaps proceed from a want of forethought, which prevents their seeing a danger till it be present. When present, they do not go through it with more coolness or steadiness than the whites. They are more ardent after their female; but love seems with them to be more an eager desire than a tender delicate mixture of sentiment and sensation. Their griefs are transient. Those numberless afflictions, which render it doubtful whether Heaven has given life to us in mercy or in wrath, are less felt, and sooner forgotten with them. In general, their existence appears to participate more of sensation than reflection. To this must be ascribed their disposition to sleep when abstracted from their diversions, and unemployed in labor. An animal whose body is at rest, and who does not reflect, must be disposed to sleep of course. Comparing them by their faculties of memory, reason, and imagination, it appears to me that in memory they are equal to the whites; in reason much inferior, as I think one could scarcely be found capable of tracing and comprehending the investigations of Euclid; and that in imagination they are dull, tasteless and anomalous. It would be unfair to follow them to Africa for this investigation. We will consider them here on the same stage with the whites, and where the facts are not apocryphal on which a judgment is to be formed. It will be right to make great allowances for the difference of condition, of education, of conversation, of the sphere in which they move. Many millions of them have been brought to, and born in America. Most of them, indeed, have been confined to tillage, to their own homes, and their own society; yet many have been so situated, that they might have availed themselves of the conversation of their masters; many have been brought up to the handicraft arts, and from that circumstance have always been associated with the whites. Some have been liberally educated, and all have lived in countries where the arts and sciences are cultivated to a considerable degree, and have had before their eyes samples of the best works from abroad. The Indians, with no advantages of this kind, will often carve figures on their pipes not destitute of design and merit. They will crayon out an animal, a plant, or a country, so as to prove the existence of a germ in their minds which only wants cultivation. They astonish you with strokes of the most sublime oratory; such as prove their reason and sentiment strong, their imagination glowing and elevated. But never yet could I find that a black had uttered a thought above the level of plain narration; never seen even an elementary trait of painting or sculpture. In music they are more generally gifted than the whites with accurate ears for tune and time, and they have been found capable of imagining a small catch. Whether they will be equal to the composition of a more extensive run of melody, or of complicated harmony, is yet to be proved. Misery is often the parent of the most affecting touches in poetry. Among the blacks is misery enough, God knows, but no poetry. Love is the peculiar oestrum of the poet. Their love is ardent, but it kindles the senses only, not the imagination. Religion, indeed, has produced a Phyllis Whately; but it could not produce a poet. The compositions published under her name are below the dignity of criticism. The heroes of the Dunciad are to her as Hercules to the author of that poem. Ignatius Sancho has approached nearer to merit in composition; yet his letters do more honor to the heart than the head. They breathe the purest effusions of friendship and general philanthropy, and shew how great a degree of the latter may be compounded with strong religious zeal. He is often happy in the turn of his compliments, and his style is easy and familiar, except when he affects a Shandean fabrication of words. But his imagination is wild and extravagant, escapes incessantly from every restraint of reason and taste, and, in the course of its vagaries, leaves a tract of thought as incoherent and eccentric as is the course of a meteor through the sky. His subjects should often have led him to a process of sober reasoning; yet we find him always substituting sentiment for demonstration. Upon the whole, though we admit him to the first place among those of his own color who have presented themselves to the public judgment, yet when we compare him with the writers of the race among whom he lived, and particularly with the epistolary class in which he has taken his own stand, we are compelled to enroll him at the bottom of the column. This criticism supposes the letters published under his name to be genuine, and to have received amendment from no other hand; points which would not be of easy investigation. The improvement of the blacks in body and mind, in the first instance of their mixture with the whites, has been observed by every one, and proves that their inferiority is not the effect merely of their condition of life. We know that among the Romans, about the Augustan age especially, the condition of their slaves was much more deplorable than that of the blacks on the continent of America. The two sexes were confined in separate apartments, because to raise a child cost the master more than to buy one. Cato, for a very restricted indulgence to his slaves in this particular, took from them a certain price. But in this country the slaves multiply as fast as the free inhabitants. Their situation and manners place the commerce between the two sexes almost without restraint. The same Cato, on a principle of economy, always sold his sick and superannuated slaves. He gives it as a standing precept to a master visiting his farm, to sell his old oxen, old wagons, old tools, old and diseased servants, and every thing else become useless: "Vendat boves vetulos, plaustrum vetus, serramenta Vetera, servum senem, servum morbosum, & si quid aliud supersit vendat." — Cato de re rustica, c. 2. The American slaves cannot enumerate this among the injuries and insults they receive. It was the common practice to expose in the island of Aesculapius, in the Tyber, diseased slaves, whose cure was like to become tedious. The Emperor Claudius by an edict gave freedom to such of them as should recover, and first declared that if any person chose to kill rather than to expose them, it should be deemed homicide. The exposing them is a crime, of which no instance has existed with us; and were it to be followed by death, it would be punished capitally. We are told of a certain Vedius Pollio, who, in the presence of Augustus, would have given a slave as food to his fish for having broken a glass. With the Romans, the regular method of taking the evidence of their slaves was under torture. Here it has been thought better never to resort to their evidence. When a master was murdered, all his slaves in the same house, or within hearing, were condemned to death. Here punishment falls on the guilty only, and as precise proof is required against him as against a freeman. Yet notwithstanding these and other discouraging circumstances among the Romans, their slaves were often their rarest artists. They excelled, too, in science, insomuch as to be usually employed as tutors to their master's children. Epictetus, Diogenes, Phaedon, Terence, and Phaedrus, were slaves. But they were of the race of whites. It is not their condition then, but Nature, which has produced the distinction....

Notwithstanding these considerations, which must weaken their respect for the laws of property, we find among them numerous instances of the most rigid integrity, and as many as among their better instructed masters, of benevolence, gratitude, and unshaken fidelity. The opinion that they are inferior in the faculties of reason and imagination, must be hazarded with great diffidence. To justify a general conclusion, requires many observations, even where the subject may be submitted to the anatomical knife, to optical glasses, to analysis by fire, or by solvents. How much more then where it is a faculty, not a substance, we are examining; where it eludes the research of all the senses; where the conditions of its existence are various, and variously combined; where the effects of those which are present or absent bid defiance to calculation; let me add too, as a circumstance of great tenderness, where our conclusion would degrade a whole race of men from the rank in the scale of beings which their Creator may perhaps have given them. To our reproach it must be said, that though for a century and a half we have had under our eyes the races of black and of red men, they have never yet been viewed by us as subjects of natural history. I advance it therefore as a suspicion only, that the blacks, whether originally a distinct race, or made distinct by time and circumstances, are inferior to the whites in the endowments both of body and mind. It is not against experience to suppose that different species of the same genus, or varieties of the same species, may possess different qualifications. Will not a lover of natural history then, one who views the gradations in all the races of animals with the eye of philosophy, excuse an effort to keep those in the department of man as distinct as Nature has formed them? This unfortunate difference of color, and perhaps of faculty, is a powerful obstacle to the emancipation of these people. Many of their advocates, while they wish to vindicate the liberty of human nature, are anxious also to preserve its dignity and beauty. Some of these, embarrassed by the question, "What further is to be done with them?" join themselves in opposition with those who are actuated by sordid avarice only. Among the Romans emancipation required but one effort. The slave, when made free, might mix with, without staining the blood of his master. But with us a second is necessary, unknown to history. When freed, he is to be removed beyond the reach of mixture.

-- Notes on the State of Virginia, by Thomas Jefferson


In 1889 Henry Adams, carrying on his family's sometime vendetta against Thomas Jefferson, wrote a history of the United States of America During the Administrations of Thomas Jefferson, trying, apparently, to put a stake through the then barely-beating heart of Jefferson's reputation. As an honest reporter, Adams told the truth about Jefferson's actions, evidently assuming Americans would find them objectionable. Instead, this book rehabilitated Jefferson by pointing out his great nation shaping-feats.

A complete and accurate, examination of O'Brien's charges in the full context of Jefferson's life, the revolution, and the American experience might also lift Jefferson's currently flagging reputation. Jefferson played well a key role on a team of revolutionaries whose ideas and actions continue to hold the world's imagination and affect its actions. Americans need to come to terms with their Jeffersonian heritage, whether or not Jefferson held (as he probably did not) unacceptably radical, racist views.

American revolutionaries were of many minds. Some early patriots went to Canada when war broke out. Fervent kaleidoscopic activity typified politics during and after the war. Allies and enemies often, if not routinely, changed sides. Events confounded politics. As Gary Wills points out, it took Lincoln to establish 1776 and the Declaration of Independence, not 1789 and the Constitution, as the birth of the nation. The Gettysburg address, Wills says, transformed the United States into The United States.

Jefferson tended toward political liberty and economic independence. His foil, Hamilton, urged economic efficiency and political order. Their struggle defines America. In 1876, Henry Cabot Lodge -and a hundred years later Walter Lippman--called America a Hamiltonian nation governed by Jeffersonian forms. Americans tend, consciously or unconsciously, to see reality as a balance of efficiency, independence, liberty, and order. Viewed this way, America without Jefferson will not be America.

A discernible back-and-forth with Jefferson at its core characterized the American revolution laying the groundwork for America as we know it. First came the Declaration of Independence a Jeffersonian thrust. A Hamiltonian parry, the Constitution, preceded the Jeffersonian Bill of Rights riposte. The Hamiltonian Federalist government of Washington and Adams, succeeded by the Jefferson electoral sweep of 1800, carried on the duel.

The Hamiltonians struck back after Jefferson's massive November 1800 victory by appointing the infamous "midnight judges" (including Chief Justice John Marshall) between election night and Jefferson's March, 1801 inauguration. For the next thirty-five years, Jeffersonian Presidents (Jefferson, Madison, Monroe, Adams and Jackson) battled Hamiltonian Marshall and the courts to shape the nation. At Jefferson's death on the 50th anniversary of the Declaration of Independence, the die was cast.

Marshall's decisions cut executive government power. The Jefferson "mob" controlling central government scared Federalists. One 1819 case, Dartmouth College v. Woodward, set corporate rights against federal power. The nation split. Government, ruled by Jeffersonian principle (affected people need a voice -- i.e., vote--in decision making) squared off against corporations (semi-governments) ruled by Hamiltonian principle (only property owners -- i.e., stockholders -- have decision-making rights).

For the next hundred years increasingly "democratic" government (more issues presented to more voters) battled increasingly powerful (more land, money, authority) corporations to allocate national resources. The nation prospered and suffered. Painful pre Civil War agrarian/industrial struggles, cast as free v. slave, led to bloody war and increased corporate power. Post war boom/bust collapses (from railroads in the 1870's to agriculture and industry in the 1920's) destroyed confidence in Hamiltonian corporate economic structures.

Enter Roosevelt's activist government, with which we are just now coming to terms. Roosevelt, like Lincoln and Jackson before and Kennedy after him, drew on Jefferson to help America through complex times. Expelling Jefferson, so entwined with America, from the pantheon for politically incorrect radicalism and racism (even if guilty) poses a greater challenge to America's core viability than O'Brien's thesis considers. Ripping Jefferson from America's heart, necessary or not, will be bloody work.

A broader, more textured appreciation of Jefferson and of history might alter the O'Brien-created impression of Jefferson's pantheon future. "Someone should write a thesis on "The Influence of Thomas Jefferson on Hendrik Verwoerd,"' O'Brien says. Jefferson, racism, South Africa. Point made, further comment not needed. A less obviously anti-Jefferson point could be made by suggesting a thesis on Jefferson and Frederick de Klerk. This might present a different Jefferson for any needed redemption.

For example, O'Brien connects Jefferson to violent radicalism (too slow to condemn French Revolution excesses, alleged Oklahoma City bomber Timothy McVeigh wore a tee shirt with a provocative Jefferson quote). He does not mention attacks by contemporaries (and Henry Adams) on Jefferson for being too pacifist-impose an embargo rather than fight the British, buy rather than conquer Louisiana, and move Virginia's capital from Williamsburg to Richmond to avoid armed conflict.

O'Brien says "...the orthodox multiracial version of the American civil religion must eventually prevail -- at whatever cost against the neo-Jeffersonian racist schism" (emphasis added). "At whatever cost" sounds like the kind of unrestrained exhortation O'Brien condemns in Jefferson. One cost (considered by O'Brien?) of dumping Jefferson from the pantheon because of his violent rhetoric might be to lose him as the primary American example of limiting the use of violence as a tool of foreign policy.

By adding resistance to the federal government to his Jefferson indictment, and making it the moral equivalent of racism, O'Brien further weakens his historical case. Northern states like Wisconsin issued ringing states rights endorsements against federal government enforcement of fugitive slave laws. Nothing makes federal government power intrinsically multiracial. Nor do contemporary Americans, individually or collectively, see the federal government as uniformly superior to state or local governments.

One reason so many Americans, including a lot who are not right-wing fanatics, find "liberal" irritating grows out of a perception that "liberals" tend to claim a special identification with "orthodox American civil religion." History suggests that the political Jefferson would shun association with such a concept. In fact it is likely that orthodox civil religion will find less room in the American pantheon than will Thomas Jefferson. Jefferson's vitality resists classification. Americans tend to suspect orthodoxy.

Dumping Jefferson from the pantheon comes down on one side of a deep, wrenching, centuries long, social/political battle, predating America's revolution. This battle divides those who, like Jefferson, demand that governments keep hands off individuals' right to use their life and liberty to pursue happiness from those who, like Hamilton, say power concentrated in properly motivated,competent, economically and socially elite hands best ensures the orderly society essential for individual enjoyment of life.

Dumping Hamilton comes down on the other side making more French Revolution type excesses likely. Americans stand astride this divide, one foot firmly in each camp. Each person develops a pragmatic mix of liberty, order, independence and efficiency for personal expression and gain. The Combined Jefferson/Hamilton blood in American veins creates collective decisions pundits find odd-divided government 22 of 28 years; pro choice/pro life abortion consensus; anti-government/anti-corporate anger, etc.

The American dynamic rests on "the pursuit of happiness,' staked out by Jefferson in the Declaration of Independence, dumped from the Constitution by central government advocates, reintegrated by Lincoln. Dumping Jefferson risks losing "happiness" as a central social value. Cutting the ground from under the Jefferson foot risks toppling Americans into a morass of individual rebellion against government intrusion into privacy, family, and personal values. A bloody business at best. Americans might prefer redemption for Jefferson.

O'Brien's self-described task, ensuring "at whatever cost" that "the orthodox multiracial version of the American civil religion" prevails "against the neo-Jefferson racist schism," has far greater risks and fewer benefits then O'Brien presents or appears to have considered. This fact, combined with O'Brien's brittle historical picture, makes a further, more faceted, reassessment necessary before individual Americans make a pro- or anti-Jefferson choice.

In summary, O'Brien chose to narrow and obscure the Jefferson legacy -- even if he had accurately reported the part of Jefferson's life that he addresses (which he did not). He leaves important aspects of Jefferson's life and actions that bear directly on his thesis, out of his argument. He leaves contradictory assertions unaddressed. And he makes poorly-thought out--rhetorical flourishes that, when examined, weaken his argument. O'Brien's topic is too important not to be addressed more completely.

James S. Turner
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Re: AN unREASONABLE MAN, directed by Henriette Mantel

Postby admin » Wed Jul 29, 2015 4:41 am

Nader Now Concedes That Bush Will Cause More Damage Than Gore
by Ron Kampeas
December 30, 2000
Associated Press

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WASHINGTON -- They call him ''traitor,'' ''egomaniac'' and ''fool.'' Some of Ralph Nader's old battle buddies even call him ''politician.''

Many of those who fought with Nader on the frontlines for the environment, consumer rights and other liberal causes now say he betrayed them by not ending his presidential run in time to save Al Gore's candidacy. And they say his career as a public advocate is through.

''Who's going to work with him now?'' snorted Rep. John Conyers, D-Mich., a powerful congressman who once worked with Nader on labor and regulatory issues.

The iconoclast's idol is undergoing the kind of beating he once trademarked, but Nader could care less.

''They were all anesthetized by Clinton, the snake charmer,'' said the man who described Gore and Bush as ''Tweedledum and Tweedledee.''

In an interview in his cramped campaign office -- just blocks from his cramped Washington bachelor's pad -- Nader sounded the same themes that informed his campaign: the two major parties are beholden to corporate interests, and voters lacked choice.

''The Democrats were moving toward the Republican Party, developing Republican agendas for Republican issues -- to take Republican voters away,'' he said.

That elicits moans from his former allies, who agree with him that much was wrong with the Democratic Party -- but who say differences are real, and now very very evident, thanks to the man they still affectionately call ''Ralph.''

Each starts by mentioning Missouri Sen. John Ashcroft, whose controversial civil rights record is already dogging his attorney general nomination. They also point to Andrew Card, a former automobile industry lobbyist named as White House chief of staff, and Vice President-elect Dick Cheney's oil industry past.

''We all complained how Clinton gave a green light to industry, but it can be greener,'' said Ken Cook, who heads the Environmental Working Group.

Nader now concedes that Bush will cause more damage than Gore.

''Bush is probably going to jettison the tobacco lawsuits, and he's not good on energy,'' he said.

That's a major departure from his insistence that Gore and Bush were two sides of the same coin. Having made the concession, Nader -- who avoids eye-contact like an oncoming Ford Pinto -- started scribbling notes to himself, and said a Bush presidency will at least galvanize liberals.

''Oh yeah,'' Conyers said scornfully. ''Now that we're not anesthetized, Ralph, we want to work real close and take instructions from you.''

Not all in the advocacy community blame Nader.

Maggie Geist of the Association for the Preservation of Cape Cod blames Gore for straying from his strong pro-environment record in a misguided attempt to win the center.

''He will have to explain to himself why he chose not to highlight that during his campaign,'' she said.

Joan Claybrook, head of Public Citizen, a consumer group, and once a close Nader ally, is also wary of a Bush presidency -- but she blames Gore's poor performance.

''You have to ask why he didn't win by a landslide, why he wouldn't let Clinton campaign in Arkansas,'' she said.

Nader's detractors readily agree that Gore misstepped -- but they say that pales next to Nader's willfulness.

''Nader was never the only factor (in Gore's defeat),'' said Cook. ''But it was the only factor that was a betrayal.''

Nader had his strongest support in a handful of states -- Oregon, Washington, Minnesota, Wisconsin, Michigan. Gore ultimately won all five, but only after being forced to spend precious time and money there. Meanwhile, Nader only took 2 percent in Florida -- a state that was never considered a Nader stronghold -- but that was enough to throw the state to Bush.

Some say Nader strayed from his original aim of establishing the Green Party as a national force, and let his personal dislike for Gore color his judgment.

Gary Sellers, a retired activist whose friendship with Nader dates back to the 1960s -- Nader was the best man at his wedding -- says Nader hinted last summer that he would withdraw if it were getting close.

''He said, 'Oh, Gary, don't worry about it,'' Sellers said.

When it became clear in October that Nader had no such intention, Sellers established Nader's Raiders for Gore. He now describes Nader as an ''egomaniac'' seduced by one more stab at the national spotlight, and says he lied to his constituents about Gore's record -- just like the establishment politicians he once reviled.

''You don't throw the country away'' to prove a point, Sellers said, noting that Bush could appoint as many as 600 federal judges.

Peter Petkas, a Houston businessman and a Nader's Raider in the 1970s, said the same single-mindedness that drove Nader to heroic victories in those days undid the election.

''Ralph didn't see a way out, he locked himself in,'' he said. Petkas says he suffers the consequences of the ex-Texas governor's deregulatory fervor on a daily basis -- Houston is the nation's smoggiest city.


Nader says pulling out would have betrayed the Greens. ''The campaign built the basis for a long-range political reform movement.''

Notably, he does not use the word ''party'' -- the Greens fell well short of getting the 5 percent needed to qualify for federal matching funds, and they elected just 20 people to local office, including a sewage commissioner.

For some, those numbers spell the last of Nader. Norm Shiren, a retiree in Chappaqua, N.Y., modeled his modest local environmental activism on Nader's. No longer.

''Nader ended up throwing the election to someone who is going to do everything to ruin his issues,'' he said.
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Re: AN unREASONABLE MAN, directed by Henriette Mantel

Postby admin » Wed Jul 29, 2015 4:44 am

DEMOCRAT

Peter J. Petkas
BY Linkedin
7/28/15

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Image

President, HoldTight Solutions Inc. [http://www.holdtight.com/ Supply flash rust inhibitors and salt removers. Product data sheet, technical bulletins, and test data.]
Houston, Texas AreaBuilding Materials
Current: HoldTight Solutions
Education: University of Texas Law School
Websites: HoldTight Solutions website
HoldTight Solutions blog
PJP blog

Experience:

President
HoldTight Solutions
1998 – Present (17 years)

Organizations:

NACE International

Additional Organizations:

Orthodox Christian Laity http://www.ocl.org; http://www.orthodoxnews.com
Patron

Education:

University of Texas Law School
JD, LAW
1967 – 1970

Yale University
BA, History / English
1963 – 1967

Lamar High School, Houston Texas
Diploma
1959 – 1963

___________________________________________________________

Lee Metcalf, Democratic senator from Montana by Peter J Petkas( Book ) (Part of the Ralph Nader Congress Project, which provided biographies and vote analysis of sitting senators.]

Whistle-Blowing (with Peter J. Petkas and Kate Blackwell)

___________________________________________________________

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