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South Africa

So argued former State Department legal adviser John Bellinger III in the WSJ last week, with special reference to the overreaching, extraterritorial Alien Tort Statute. But it’s not as if the efforts to turn the U.S. into the courtroom for the world are slackening at all:

  • As Curtis Bradley and Jack Goldsmith note in the Washington Post, a federal court recently allowed to proceed a lawsuit seeking to blame the evils of South African apartheid on Western multinationals, even despite strong opposition to the suit from both the U.S. government’s executive branch and today’s duly elected multiracial South African government. Unfortunately, the State Department’s up-to-now-staunch opposition to this and similar lawsuits is imperiled by the installment of Harold Koh as legal adviser at Foggy Bottom: “Koh is an intellectual architect and champion of the post-1980 human rights litigation explosion. He joined a brief in the South Africa litigation arguing for broad aiding-and-abetting liability.”
  • If asked what should happen to frozen Cuban-government assets under U.S. control, reasonable possibility #1 might be “hold them against the eventual day when a non-tyrannical regime emerges there, it will need help.” Reasonable possibility #2 might be “divide the assets among Castro’s many victims in some deliberate and step-by-step way, knowing that their injuries are so numerous and severe that even very deserving victims will get only small payments”. The answer you’d think makes no sense at all is “encourage first-come-first-served tort lawsuits, so that the first couple of cases to maneuver their way through the legal process get handsome compensation, while no money is left for either #1 or #2″. So naturally, the latter is what our legal system is doing, previously in $188 million and $253 million verdicts involving single incidents or families, and now in a new case in which the family of Gustavo Villoldo has been awarded $1.179 billion. One of the plaintiff’s lawyers in the case actually boasts that the new award may obstruct a warming of relations between the U.S. and a post-Castro successor regime: “with the opening of relations between the U.S. and Cuba to come, there are debts to society to be paid before that happens” (more on Che Guevara, via).
  • On the brighter side, the Obama administration has joined its Bush predecessors in correctly drawing a line against litigation by some September 11 victims and insurance companies: under the Foreign Sovereign Immunity Act, the courts are no place to pursue theories trying to link the rulers of Saudi Arabia to the terrorist attacks.

(cross-posted from Point of Law)

Annals of traffic-cams

by Walter Olson on October 5, 2008

The traffic camera automatically recorded the license plate of the vehicle going too fast, so the owner (in Plettenberg Bay, South Africa) was automatically mailed a ticket. The only problem: the vehicle was being towed by a tow truck at the time. (Stumblng Tumblr, Aug. 5).

More from commenter Cathy Gellis: “I know someone who canceled her Fastrak/EZ Pass automatic toll account and was charged when the device passed through a toll while being mailed back.”

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Hard-hitting column by Stuart Taylor, Jr. on the destructiveness of the current legal actions

seeking more than $400 billion from companies that did business in South Africa during apartheid, [which] score high on what I call Taylor’s Index of Completely Worthless Lawsuit Indicators:

• The lawsuits will do victims of wrongdoing little or no good.

• They will penalize no human being who has done anything wrong.

• They will deter more conduct that is beneficial than harmful.

• The legal costs and any damages will come at the expense of the general public.

• The lawsuits therefore serve no purpose at all but to enrich lawyers and provide ideological power trips for some judges as well as lawyers.

American Isuzu Motors v. Ntsebeza, recently allowed to go forward, is being led by (among others) class-actioneer and frequent Overlawyered mentionee Michael Hausfeld.

The apartheid lawsuit is one of dozens seeking to pervert the Alien Tort Statute to mulct companies for ordinary commercial conduct in countries accused of human-rights violations. Caterpillar, for example, was sued for selling bulldozers that Israel used to destroy suspected Palestinian terrorists’ homes. (The case was dismissed.) “The American bar is actively soliciting alien plaintiffs” to try out novel theories, State Department legal adviser John Bellinger noted in a recent speech. Because so many federal judges have smiled on such suits, Bellinger added, foreign governments increasingly regard the U.S. judiciary “as something of a rogue actor.”

With added commentary on the Kivalina climate-change class action, Rhode Island lead paint, shareholder litigation, and Lerach, Weiss, and Scruggs. (National Journal, May 17, will rotate off page so catch it now).

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May 19 roundup

by Walter Olson on May 19, 2008

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Florida divorce lawyer Steve Miller wants your business if “you and your spouse hate each other like poison”. Just a few easy steps, and “you’re on the way to getting rid of that vermin you call a spouse.” His YouTube video is discussed by Carolyn Elefant (Aug. 30), Greedy Trial Lawyer (Sept. 2), and Jacobson Attorneys in South Africa (Aug. 31) which contributes a Flickr photo documenting a marketing effort by divorce attorneys in that country (“Cheating Bastard!”). Miller’s site is here.

The Boston Phoenix (“World of Pain”, Feb. 9) tells readers that “frankly, the primary reason” it isn’t going to run the Danish Muhammed cartoons:

Out of fear of retaliation from the international brotherhood of radical and bloodthirsty Islamists who seek to impose their will on those who do not believe as they do. …Simply stated, we are being terrorized, and as deeply as we believe in the principles of free speech and a free press, we could not in good conscience place the men and women who work at the Phoenix and its related companies in physical jeopardy. As we feel forced, literally, to bend to maniacal pressure, this may be the darkest moment in our 40-year publishing history.

Somewhere there’s probably an issue of vicarious/employer liability lurking in here — if printing the cartoons did lead to violence, the Phoenix’s owners might well end up having to pay. But of course the venerable alt-weekly’s stance is practically a profile in courage compared with that of editors, publishers, governments and university officials in many other places, including South Africa (bans publication of images), Sweden (reported to have shut down website carrying them), Canada’s Prince Edward Island (university confiscates student newspaper, edict forbids weblog comments) and so on (Michelle Malkin roundup, Feb. 9). Commentaries worth reading: Krauthammer, Kinsley, and, from a different perspective, a commenter at Andrew Sullivan’s. (More on the cartoons here and here.)

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“Fed-up with jokes that unfairly typecast them as ambulance-chasers or worse, Canada’s lawyers are considering drastic means to rehabilitate their image, including striking a truth and reconciliation task force to find out why they ‘can’t get no respect’ from the public.” Truth and reconciliation commissions came to prominence as an innovation employed in countries such as South Africa seeking to overcome highly repressive or acrimonious national pasts. Halifax lawyer Robert Patzelt, who chairs a Canadian Bar Association committee looking into the idea, said “it may be necessary to accept that the profession is far from perfect and that it may, to some extent, have contributed to some of its own image problems.” All talk of “truth commissions” aside, that last bit sure sounds like progress to us — and a decided improvement over the circle-the-wagons reaction to criticism so often adopted by organized lawyerdom in the U.S. (Cristin Schmitz, “Objection! Lawyers lament poor public image”, CanWest/Montreal Gazette, Aug. 16).

Updating our Aug. 8, 2003 post (and links from there): “Lawsuits seeking more than $400 billion in damages from US corporations for victims of apartheid in South Africa were tossed out [Nov. 30] by a federal judge who said the claims bordered on the frivolous.” (Boston.com/AMABoston, Dec. 1; David Teather, “Apartheid court case dismissed”, Guardian (UK), Nov. 30; Mark Hamblett, “Businesses Win End to Multiple Apartheid Suits”, New York Law Journal, Dec. 1). The South African government, along with former South African president Nelson Mandela, had strongly opposed the suits. (Jonathan Ancer, “Activists hit out at ‘reactionary’ government”, Independent Online (South Africa), Dec. 7). The U.S. Council for International Business was of course pleased. Brandon Hamber has a weblog and site supporting the apartheid reparations claims.

Diving’s decline

by Walter Olson on September 6, 2004

The once dominant U.S. men’s and women’s diving teams suffered their worst performance ever at the Athens Olympics, shut out from medals for the first time since diving was introduced at as an Olympic sport 92 years ago. (“Chinese dive to record haul”, AFP/Independent Online (South Africa), Aug. 29). Why the falloff? “After a golden age in the seventies — a decadent, late-Roman last hurrah — the American pool has suffered a gradual decline: thanks, for the most part, to concerns about safety and liability, diving boards have been removed and deep ends undeepened. At municipal pools across the country, the once-ubiquitous one-metre springboard has become an endangered species; and the three-metre high dive — the T. rex of the community pool — is now virtually extinct. … Ron O?Brien, U.S.A. Diving?s national technical director, and the former coach of Greg Louganis, said last week, ‘You can’t put your finger on any one thing, but having so many diving boards taken out around the country has had a serious impact on our sport, no question about it.’” (Field Maloney, “Cannonball!”, The New Yorker, Aug. 30 issue (posted Aug. 23))(via Common Good)(more about pool and diving liability).

When authenticity menaces authenticity: the head of Britain’s National Society of Master Thatchers is warning that the 2,000-year-old craft of roof-thatching could be killed off if historic-preservation authorities enforce rules insisting on the use of locally grown thatching materials, such as Cotswold long straw and East Anglia water reed. Because the English materials are not as durable as thatching supplies imported from growers in Turkey, Russia and South Africa, some homeowners face frequent need for rethatching which can make it uneconomical for them to keep up centuries-old cottages. “There are about 50,000 thatched buildings in Britain, around half of which are listed buildings and therefore come under the jurisdiction of English Heritage.” “We are traditionally a passive bunch,” said the head of the thatchers’ group. “But we are livid that English Heritage are determined to kill off new developments in thatching.” (Rajeev Syal, Daily Telegraph, Sept. 7).

Reparations watch: “The South African government has asked a U.S. court to dismiss a series of controversial multibillion dollar apartheid lawsuits against major multinational corporations, saying they could destabilize the economy. In a motion filed with the U.S. District Court in New York yesterday, Justice Minister Penuell Maduna argued the lawsuits undermine South Africa’s sovereignty and its efforts to redress nearly 50 years of white minority rule under apartheid.” (Wambui Chege, Reuters/Boston Globe, Jul. 30, no longer online; “Government Asks US to Dismiss Apartheid Cases”, SAPA/AllAfrica.com, Jul. 29). For more on the background of plaintiff’s attorney Ed Fagan, impresario of this group of suits, see Jun. 24-25, 2002, Jan. 17-19, 2003, and Nov. 17-19, 2000. Update Jan. 2, 2005: judge dismisses claims.


June 28-30 – Lawyer’s 44-hour workday. “Cook County State’s Attorney Dick Devine is investigating charges a lawyer routinely billed the state’s child welfare agency for more than 24 hours’ work a day on uncontested adoptions.

“According to records obtained by Cook County Public Guardian Patrick Murphy, Joyce Britton had a busy week in April 2001: On Monday, April 9, she worked 34 hours. On Tuesday, she worked 44 hours. On Wednesday it was 29; 33 on Thursday, 25 on Friday, 42 on Saturday. … Britton billed the agency $862,000 for fiscal years 2000 and 2001. The second-most-active attorney handling uncontested adoptions billed $285,000.” (Abdon M. Pallasch, “Did adoption lawyer really work 44 hours in one day?”, Chicago Sun-Times, Jun. 25). (DURABLE LINK)

June 28-30 – Tobacco settlement funds go to tobacco promotion. An investigation by the Charlotte Observer finds that of the $59 million that the state of North Carolina has spent so far in proceeds from the tobacco settlement, nearly three-quarters — “about $43 million — has gone toward production and marketing of N.C. tobacco”. (Liz Chandler, “N.C. spends settlement on tobacco, not health”, Charlotte Observer, Jun. 23) (via Andrew Sullivan — scroll to third item). (DURABLE LINK)

June 28-30 – Ambulance driver who stopped for donuts loses suit. Sad news for the hero of our Nov. 2-4 item: “A federal judge has dismissed a lawsuit filed by a former ambulance driver who claimed he was wrongfully fired after stopping for doughnuts while transporting a patient to a hospital.” Larry Wesley “stopped for doughnuts in July 2000 while he was taking an injured youth to Ben Taub Hospital” and was fired after the boy’s mother complained. U.S. District Judge Lee Rosenthal “ruled that Wesley’s claims that other employees received lesser sanctions were not supported by the record, and he also failed to show that he was treated more harshly than other drivers.” (“Judge dismisses lawsuit filed by ambulance worker fired for doughnut stop”, AP/KRTK Houston, Jun. 27). (DURABLE LINK)

June 28-30 – More on gambling as next-tobacco. The Newark Star-Ledger‘s take; quotes our editor (Judy DeHaven and Kate Coscarelli, “Gaming Industry Could Be Next Target of a Big Tobacco-Type Lawsuit”, Newhouse News Service, Jun. 24)(see May 20-21). (DURABLE LINK)

June 27 – Pledge marathon. Even Justice William Brennan seemed to recognize that it tends to damage the good name of religious unbelief to associate it in the public mind with theories of hair-trigger unconstitutionality which encourage running to court over the most minute details of official ceremony. See Eugene Volokh (multiple posts); “One Nation Under Blank” (editorial), Washington Post, Jun. 27; Megan McArdle (and reader comments); Walter Dellinger, “Logically Speaking, the 9th Circuit Doesn’t Exist”, Slate, Jun. 27; David G. Savage, “9th Circuit just following form”, L.A. Times/ Houston Chronicle, Jun. 26. Update: also see columns by Steve Chapman, “Coming to terms with our Constitution”, Chicago Tribune, Jun. 30; Jonathan Foreman, “The real pledge problem”, New York Post, Jul. 1. (DURABLE LINK)

June 26-27 – “Win Big! Lie in Front of a Train”. Per a case summary in a recent New York Law Journal, “A State Supreme Court jury in Manhattan had awarded $14.1 million to a woman who was hit by an E train. The accident occurred on May 3, 2000, in a subway tunnel just north of the 34th Street station on the Eighth Avenue line. … What was she doing in that strange place to begin with? It seems the woman, then 36, had entered the tunnel and lain down on the tracks. The police concluded later that she was trying to kill herself. She denied it, though she also said she could not remember how she had ended up there.” No wonder the Bloomberg administration is pushing municipal tort reform (Clyde Haberman, New York Times, Jun. 25)(see also Oct. 23, 2001, Dec. 17, 2001). (DURABLE LINK)

June 26-27 – Asbestos: saving the Crown jewels? “In a decision that is sure to grab the attention of the asbestos personal injury bar, a Philadelphia Common Pleas judge has dismissed Crown Cork & Seal as a defendant in 376 pending asbestos cases. Judge Allan J. Tereshko found that Philadelphia- based consumer packaging company Crown Cork & Seal qualifies for relief under a new Pennsylvania law that limits the successor liability of asbestos defendants whose liability results only from merging or acquiring companies that produced asbestos products. Under the law, the company must be incorporated in Pennsylvania prior to May 2001 and must show that its liabilities in asbestos lawsuits have equaled or exceeded the ‘fair market value’ of the company whose acquisition resulted in the successor liability.” (Shannon P. Duffy, “Pennsylvania Court Upholds Law Limiting Asbestos Liability”, The Legal Intelligencer, Jun. 13)(see Jun. 27, 2001). (DURABLE LINK)

June 26-27 – “Ex-Teach’s Suit: Kids Abused Me”. Sued if you do, sued if you don’t dept.: trial is set to start today in Brooklyn “in a ground-breaking lawsuit filed by a former special education teacher who charges he was harassed by students. … Vincent Peries, who is from Sri Lanka, says students at Francis Lewis High School in Queens mimicked his accent, tossed paper balls at him,” and made fun of his ethnic background. “School officials don’t deny Peries was harassed — but argue that they can’t discipline special ed students for slurring a teacher. ‘This is because students with that classification have already been identified as having behavioral problems, and the verbal misconduct might be considered a manifestation of their disability,’ city lawyer Lisa Grumet wrote in court papers. Special ed students can be suspended only for incidents involving physical violence, drugs or a dangerous weapon, according to Board of Education regulations.” (John Marzulli, New York Daily News, Jun. 25)(& welcome Joanne Jacobs readers) (& update Jul. 24; city settles with him for 50K). (DURABLE LINK)

June 26-27 – “‘Vexatious litigant’ vows he’ll keep coming back”. Portrait of a Texas frequent litigant who’s filed more than twenty lawsuits over the past two years, against a list of defendants that includes more than a dozen judges and assorted other officials. Among factors working in his favor, aside from our general lack of a loser-pays rule: “pauper status” rules providing for the waiver of filing fees, and a lack of cross-checking that might allow the clerk in one county to learn that Mr. O’Dell is under a court order handed down in another county to petition for approval before filing any more suits in the state. (Lisa Sandburg, San Antonio Express-News, Jun. 24). (DURABLE LINK)

June 24-25 – Reparations roundup. Someone should start a weblog devoted to reparations links, it’d be easy to fill:

* In the fall of 2000, ABC’s “20/20″ and New York Times reporter Barry Meier distinguished themselves by collaborating on a devastating exposé of “personal injury lawyer Edward D. Fagan, [who] recreated himself four years ago as [a] media-savvy figure behind huge lawsuits on behalf of Nazi victims” as the Times‘s abstract puts it. The investigation (to quote ABC) “found serious questions being raised about this so-called savior, now accused of ignoring and neglecting some of the very clients he had promised to help”. ABC interviewed well-known legal ethicist Stephen Gillers, who spoke in startlingly blunt terms of his opinion of Fagan’s client-handling record (“I think it’s despicable”; “This is client abuse, in my view, and it should not be allowed to continue”.) As for Fagan’s allegedly pivotal role in developing the WWII claims, “‘We essentially worked around him,’ says New York University law professor Burt Neuborne. ‘I mean, he was, he was there, but, but he played, if I tell you zero, I mean zero role in developing the legal theory, in presenting the legal theory, and in participating as a lawyer,’ says Neuborne.” (Brian Ross, “A Case of Self-Promotion?”, ABCNews.com, Sept. 8, 2000; Connie Chung, Sam Donaldson and others, “The Survivors” (transcript), ABCNews “20/20″, Sept. 8, 2000; Barry Meier, “An Avenger’s Path: Lawyer in Holocaust Case Faces Litany of Complaints”, New York Times, Sept. 8, 2000 (abstract leads to fee-based archive); Barry Meier, “Judge Warns Lawyer to Pay Past Penalties”, Sept. 13, 2000 (same)).

But credulity springs eternal — at least in those portions of the press not industrious enough to do a Google search or two to check out the background of a lawyer re-emerging into the headlines. Last week, Fagan was all over the papers announcing that he was going to file reparations suits against Western corporations on behalf of victims of the late apartheid regime in South Africa. Britain’s Observer swallowed his pitch whole, bannering its article “Lawyer who championed those who suffered in the Holocaust fights for South Africa’s oppressed” and calling Fagan the “American lawyer who won compensation for Holocaust victims”. We’re sure that would come as news to Prof. Neuborne. (Terry Bell, “Apartheid victims sue Western banks and firms for billions”, The Observer, Jun. 16).

* On New York’s Niagara Frontier: “Thousands of Grand Islanders were thankful and relieved Friday after a federal judge ruled that the Seneca Indians do not own the land beneath their homes, businesses and public buildings”. U.S. District Judge Richard C. Arcara ruled that not only did the Seneca tribe relinquish any legal claim they might have had to the relevant tracts of New York state way back in 1764, but “there is no archaeological evidence that the Senecas ever actually set foot on the Niagara Islands.” But landowners on the island are nowhere near achieving clear title to the properties they once thought they owned, since the Senecas vow to appeal. (Dan Herbeck and T.J. Pignataro, “Sigh of relief”, Buffalo News, Jun. 22).

Meanwhile, litigation by other tribes continues to wreak havoc across a wide swath of New York State (see Nov. 3-5, 2000 and links from there). Last fall another such case ended with a federal judge’s ruling in favor of the Cayuga tribe, which 200 years ago sold the 64,000-acre tract to the state in violation of the U.S. Trade and Intercourse Act. The verdict was $36.9 million to which the judge added $211 million in interest for a grand total of $247.9 million, considerably below the $2 billion that the tribe’s lawyers had been asking for, a request that had reflected the tendency of a sum starting off long enough ago to grow to the sky through the miracle of compound interest. (Margaret Cronin Fisk, “200-Year-Old Land Dispute Nets $247.9 Million”, National Law Journal, Oct. 17). See also John Caher, “New York State May Be Solely Liable for Indian Land Claims”, New York Law Journal, Apr. 2 (suit by Oneidas “demand ‘ejectment’ of the City of Syracuse”). Update Jun. 29, 2005: Second Circuit panel throws out Cayugas’ suit and damage award as inconsistent with recent Supreme Court decision in City of Sherrill.

* Ah, the healing and emollient qualities of the reparations movement, which holds out the promise of putting racial frictions finally behind us: “A new Mobile Register - University of South Alabama survey shows that while 67 percent of black Alabamians favor the federal government making cash payments to slave descendants, only 5 percent of white Alabamians agree. Among the supporters is J.L. Chestnut, a black Selma lawyer who is part of a national legal team preparing to file reparations litigation. … ‘In five years of polling in Alabama, I have never seen an issue that was so racially polarizing,’ Nicholls [Keith Nicholls, the University of South Alabama political science professor who oversaw the survey] said. He added that the mere mention of reparations and an official U.S. government apology for slavery — another issue addressed in the poll — caused many white respondents to get so angry that they had trouble completing the interview.” (Sam Hodges, “Register-USA poll: slavery payments a divisive question”, Mobile Register, Jun. 23). (DURABLE LINK)

June 21-23 – “Trolling for litigation on eBay”. Via Ernie the Attorney: “Someone bought a packaged cheese stick that supposedly had a human hair. They want to sue, and have posted the following description of the item bid for on Ebay: ‘You are bidding on the opportunity to represent us in a civil proceeding. Naturally, our discovery of this apparently tainted product has traumatized us, and we may never be able to truly enjoy cheese (or other dairy products, or other processed foods, or other food for that matter) ever again. We reserve the right to review winner’s qualifications upon auction end. Winner must be a licensed attorney.” Before you ask, no, we don’t know whether the person who posted the auction is serious or not, though our guess is that they’re not. Update 20:45 EDT Friday: it looks as if the eBay authorities have removed the auction. It was discussed by users on eBay Forums (Jun. 21). (DURABLE LINK)

June 21-23 – Tobacco fees: a judge gets interested. Here’s one to watch closely: a Manhattan judge may finally be getting ready to delve into some of the ethical questions raised by the 1998 tobacco settlement, or at least the $25 billion portion of it that covers New York state. The judge “has asked the New York attorney general’s office and several law firms to justify $625 million in attorney fees awarded” as part of New York’s settlement with the tobacco industry (see May 11, 2001). “Citing unspecified ethical concerns, Supreme Court Justice Charles E. Ramos ordered state lawyers and attorneys from six firms that represented the state to explain why the fees should not be set aside. One ground for vacating the fees, the judge said, could be that the arbitrators who awarded them may have ‘manifestly disregarded well established ethical and public policies.’ Ramos suggested that the court had the power to not only ask a new panel of arbitrators to determine reasonable fees, but to vacate the entire $25 billion settlement, approved by another judge in 1998, if such action was warranted. He also said the issue could be referred to the Departmental Committee on Discipline and require the outside firms to produce time sheets detailing their roles in the litigation.” (Tom Perrotta, “New York Judge Cites Ethics Concern Over Tobacco Case Fees”, New York Law Journal, Jun. 20). (DURABLE LINK)

June 21-23 – 11th Circuit reinstates “Millionaire” lawsuit. “A federal appeals court has reinstated a lawsuit alleging that ABC discriminates against disabled people trying to become contestants on ‘Who Wants to be a Millionaire.’ The 11th U.S. Circuit Court of Appeals decided that the lawsuit contained a valid claim that the show’s qualifying system, which uses touch-tone phones, violates the Americans with Disabilities Act.” (see Nov. 7, 2000; Brian Bandell, “Lawsuit Reinstated Against ABC Show”, AP/New York Post, Jun. 19; Susan R. Miller, “Disabled Floridians Get Shot at ABC’s ‘Millionaire’”, Miami Daily Business Review, Jun. 21). (DURABLE LINK)

June 21-23 – Welcome Grouse.net.au readers. We’re picked as link of the day on this Australian site for June 21. Also for Jun. 21, we’re Mr. Quick’s “Link of the Day”. Among blogs sending us visitors lately: Tres Producers, Flyover Country, Aaron Haspel’s God of the Machine, Hollywood Investigator, Bob Owen of the Twin Cities, Ross Nordeen, Ravenwolf, Jon Garthwaite’s TownHall C-Log, Junkyard Blog, Now You Listen to Me Little Missy, and many others, as well as the links page of premier Cathblogger Amy Welborn. (DURABLE LINK)