April 17th, 2012

The Boston Marathon (Highway to Hell)

Pre race mug shot - because I needed a legal angle for the blog

Yeah, it was hot out there. The average temperature for Boston this time of year is 47 degrees. And runners favor such races with temps in the high 40s – low 50s.

The temperature yesterday, however, was 87 degrees at the finish line for the 116th running of the Boston Marathon for those of us in the middle of the pack. Elsewhere it was reported to have hit 89. And that, my friends, is a whole lot of hot.

When I first wrote about the Boston Marathon in 2007 I did so to wish others well as I pined to one day run fast enough to earn my entry ticket. And when I wrote a second time in 2009, I told my story of personal redemption after having finally qualified and run.

But this was not about redemption, or pining. There would be no eyes toward personal bests, or running fast enough to qualify for another Boston. This was, quite simply, the meteorological luck of the draw. People had trained for months on end, had made their plans, and travelled great distances to run the premier marathon in the world that is open to amateurs. Because after Boston in the pecking order, there is only the Olympic Trials.

And so we went, with runners going off in three waves out of the rural suburb of Hopkinton at 10:00, 10:20 and 10:40 as the the thermometer soared up to 80. Very few took up the offer of deferring until next year. There were two rules of thumb: Drink a lot and adjust your running plan, or you would not see the finish line.

While I don’t usually take walk breaks in marathons, I knew this would be an exception. But I didn’t expect that I would take the first one after just four miles. Four miles?

And I took them every mile thereafter except for one (the last mile, which I refused to walk). I wasn’t alone, and knew if I didn’t start re-charging my batteries with those walks early on I was a candidate for the medical tent.

The odd thing about this race is that there was no sweet spot. No time to simply cruise. For most people that run this distance the first few miles are just to shake out the legs and anxiety. Miles 4-16 should be the comfort zone. Those moments never happened.

Brutal was the word for the day. When the sun disappeared for 30 seconds behind the sole cloud in the sky, a roar went up from runners and spectators alike that rippled down the course. Early on I heard the refrain from Highway to Hell blaring from speakers. There was nothing to do but laugh.

Photo credit: Lorianne DiSabato on Flikr

The crowds were nothing less than awesome and the water sprays were out in force – firemen with hydrant attachments, homeowners with hoses, kids with spray guns.

Since the early running goes through so many small towns — Ashland, Framingham, Natick, Wellesely and Newton — before hitting the big city, the route is a constant stream of homes and villages with local parties along the way. With 500,000 spectators, this is the the biggest event in New England. And the locals were doing what they could for us. Passing out water, passing out oranges, passing out support and passing out beer. And yes, you’re damn right I took some beer. It fortified me for Heartbreak Hill, part of the hills of Newton between miles 17 and 21.

It was during those walk breaks that the crowd really played a part, as I had written my name on my shirt. This is a twofer: The crowds love knowing who is in front of them and the runner gets support. So when I was walking, the chanting would start. Sometimes solo, but sometimes large groups urging me on. And that helped snap me out of some of the longer walk breaks deep into the race.

The view of the other runners in those late stages brought to mind images of refugees trudging toward safety. I saw more people walking up Heartbreak than running it, moving forward, forward, inexorably forward.

From today’s New York Times came this interview using the word of the day:

“This was the toughest marathon I’ve ever run, and I’ve done 5 Ironmans, 3 Bostons and about 20 marathons,” said Mark Williams, 45, of Richmond, Va. He said his time was 30 minutes slower than six months ago. “It was brutal.”

And this from Jason Argent on Twitter:

My 5th #BostonMarathon a brutally rough go in 90 degree temps. 45 mins off my time last yr. Just happy to be alive after that death march.

One of the problems the race organizers had was not knowing exactly how runners would handle the heat. There isn’t a lot of real-world data on the subject of running 26 miles in those temps. One striking example was the 2007 Chicago Marathon that was cancelled mid-race due to heat, when water stops ran out of the precious liquid. (Many early runners were grabbing two or three cups and dowsing themselves, leaving the back of the pack without.) I carried backup of fluids yesterday, just in case. But water seemed plentiful, at least from my middle-of-the-pack vantage point, and I drank so much Gatorade I felt like I was being prepped for a colonoscopy.

When I did hit the finish on Boylston Street in Boston’s Back Bay section I came in about 30-35 minutes off my expected finish time. But I wasn’t disappointed, as others did the same. Adding 30-45 minutes was normal according to most people I spoke to, and that includes top local runners capable of cracking three hours in average conditions.

Few runners train in such heat. Even those in hot weather climates like Florida or Arizona are likely to train early in the morning or after the sun goes down. But mid-day, with no time to acclimate to these temperatures because this is a spring marathon and not a fall race? To quote Donald Rumsfeld:

There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don’t know. But there are also unknown unknowns. There are things we don’t know we don’t know.

And one thing the vast, vast majority of runners didn’t know was how we would handle the heat. It turned out that there were 2,100 runners treated for dehydration out of 22,000 starters. As for the other 90% wondering if would could handle the heat: We can, and we did. But we might not be too keen on repeating the adventure.

And now the legal part of this post. (I have to have one, don’t I?) When athletes toe the starting line of an event, they assume the risks of competing. And that includes dealing with the weather.

My finishers medal will now be placed in a prominent spot in my trophy room. Also known as the tie rack in my closet.

For those with an interest in running and the law, once upon a time I did a Blawg Review based on the NYC Marathon.

Lastly, for those who ran Boston yesterday, this video’s for you.

My legal posts can be followed with my Twitter handle @Turkewitz, but for the running, it’s @PaineToPain.

Elsewhere:

Surviving the Boston Marathon (The New Yorker)

Boston Marathon Deferrals: Here Are the Facts (Runners World)

Boston Marathon a Battle, from Start to Finish (Tom Renner)

…Nothing in my running bag of tricks – energy gels, water, Gatorade, alternating walking and running – seemed to do much good. The temptation to walk off crossed my mind frequently… [more at link]

Boston Marathon 2012: Mile by Mile (Mile Posts by Dorothy Beal):

You don’t hit the wall at the 8 mile mark. I knew it was the heat….Mile 21 was my first mile in the 10′s. I’m not sure the last time I saw a number in the 10′s…By Mile 23 I had started vomiting….[more at link]

RACE REPORT: Brian Adkins Finishes 2012 Boston Marathon (Marathon Brian):

…I had finished the 2012 Boston Marathon, 41 minutes slower than 2011′s performance in my first Boston run, but probably my proudest day as an athlete and event competitor….

The Boston Marathon: A Recap (I Dabble):

It was my slowest marathon to date, but is easily the one I am most proud of.

Boston 2012: The Hot One (Apple Crumbles):

…At 10K, people were already struggling. I wasn’t alone….

Race Report: Boston Marathon (Will Run for Beer):

…when I wrote on Sunday night of my revised goals for the race, I still thought I’d run a 3:20 and then come back here and be all “that was hard, but if you trust your training, you can do it.”

Instead I ran a 3:50 and honest to God considered dropping out. Of the Boston Marathon.

Lest you be wondering if the heat was really that big a deal, it was…

Too Hot to Handle: Boston Marathon Race Report (Runnrgirl’s Blog):

The first 3 miles …so i was bouncing along, pretty content for a while, and then i started feeling nauseous. i’ve battled nausea while running before so i thought it was still nerves and it would shake out as my body got used to running…the nausea led to some dry-heaving…

Boston Marathon Recap (linseyontherun):

I planned to crush the marathon. I aimed to run my best marathon by far, shooting for a goal between 3:15 and 3:18. That didn’t happen and normally, I’d look back on this marathon and be devastated. This year, I feel accomplished and am still in a bit of shock over how I persevered and made it to the finish line.

Baked in Boston (Sweet Victory):

Obsessions over my pace were replaced by obsessions over the ice bags and sprinklers that the fans of Boston had all over the course. I’d heard it before and now I know it’s true: these are the best marathon fans in the world. I ran from ice bag to ice bag, through sprinklers and hoses, doing everything possible to keep my core cool…

My Boston Marathon Lesson: Remember the Goal (Dan Taylor):

I finished my first Boston Marathon yesterday and want to capture the most important lesson I learned from that experience.

Although I learned the lesson in the excruciating heat of the Boston Marathon I know for me it’s a lesson that I’ll carry over into other parts of my life…

What NOT Running the Boston Marathon Taught Me (Run Brit Run):

Not running on Monday was one of the hardest decisions I’ve ever had to make. For 5 months, my life was training for Boston. Everything I did was planned around training runs. I barely went out, I spent an abnormal amount of time with my foam roller, and when people asked what my weekend plans were the response was always how long my long run was that week. Giving up the culmination of all of that hard work crushed me….

xx will update with good blogs posts as they are found xx

April 14th, 2012

A real warning label…

Sometimes people make fun of wacky warning labels that they see, like the warning on a Batman costume that said “Cape does not enable user to fly,”

But sometimes, they are well-written and real, and need to be appreciated. They aren’t written for the benefit of lawyers and courts and fear of an obscure suit, but for the benefits of participants in an event. Like this for this Monday’s Boston Marathon, where temperatures are expected to soar into the 80s, about 30 degrees too warm:

Advisory From Boston Marathon Medical Directors to Entrants in the 2012 Boston Marathon

Saturday, April 14, 2012 as of 11:30 a.m.

We are looking closely at the current weather situation which is projected to be quite warm. The B.A.A. is closely monitoring this situation for for race day decisions. If the temperatures reach certain levels, running will put even the most fit athletes at risk for heat injury.

We are now making the recommendation that if you are not highly fit or if you have any underlying medical conditions (for example-cardiac disease, pulmonary disease or any of a number of medical problems), you should NOT run this race.

Inexperienced marathoners should not run.

Those who have only trained in a cooler climate and who may not be acclimated (for at least the last 10 days) to warm weather running conditions should also consider not running.

For those very fit athletes who decide to run, you should take significant precautions:

Run at a slower pace and maintain hydration.

You should frequently take breaks by walking instead of running.

This will not be a day to run a personal best. If you choose to run, run safely above all else. Speed can kill.

Heat stroke is a serious issue and is related to intensity of running as well as the heat and humidity.

Good hydration is important but over hydration can also be a problem. Thirst is an indication that you are under-hydrated. You should maintain hydration levels slightly greater than your hydration program in your training, but not excessively so.

Even the fittest athletes, that take precautions can still suffer serious heat illness. Recognizing symptoms of heat illness in yourself and others is critical , this may include headaches, dizziness, confusion, fatigue, nausea and vomiting. If you experience any of these, stop running immediately and if symptoms persist seek medical attention.

Boston Marathon Co-Medical Directors,
Dr. Pierre d’Hemecourt and Dr. Sophia Dyer

April 9th, 2012

A Cow Walks Into the Road…(Update x2)

I don’t deal too often with animal law at this joint, be we make an exception today. Why? Because an intermediate appellate court has written that it doesn’t like the decision it was forced to render and asked the state’s top court for a reversal. And when an appellate court asks to have itself reversed, I find that kinda interesting.

Facts: A cow wanders into the road. The cow causes an accident. Can the cow’s owner be successfully sued for negligently allowing said cow to wander?

Answer: No, there is no liability. Why? Because New York’s law of animals is such that there is no cause of action for negligence. The only actions that can successfully be brought are when an animal has a known vicious propensity, and if the animal has that, then there is strict liability regardless of whether the owner did anything wrong.

But a unanimous Appellate Division (Third Department) said that rule sucks in Hastings v. Suave. OK, maybe “sucks” isn’t exactly what the court wrote. But the vicious propensity rule generally comes up with household pets, notably dogs, and not farm animals, and the court doesn’t think it should apply in the farm animal setting. Acknowledging that they had no choice but to dismiss the case under current New York law, Justice Michael Kavanagh, wrote for the court that “we must note our discomfort with this rule of law as it applies to these facts — and with this result.”

Differentiating the case from those regarding household pets, Justice Kavanagh went on to say:

The need to maintain control over such a large animal is obvious, and the risk that exists if it is allowed to roam unattended onto a public street is self-evident and not created because the animal has a vicious or abnormal propensity. Here, plaintiff was injured not because the cow was vicious or abnormal, but because defendants allegedly failed to keep it confined on farm property and,instead, allowed it to wander unattended onto the adjacent highway in the middle of the night, causing this accident.The existence of any abnormal or vicious propensity played no role in this accident, yet, under the law as it now exists, defendants’ legal responsibility for what happened is totally dependent upon it. For this reason, we believe in this limited circumstance, traditional rules of negligence should apply to determine the legal responsibility of the animal’s owner for damages it may have caused. However, it is not for this Court to alter this rule and, while it is in place, we are obligated to enforce it.

And that, my friends, is what is known as an invitation to the plaintiff to move for leave to appeal to the Court of Appeals. Given the unassailable logic of the court, I think the chances of a change in the law are pretty good.

Update: Leave to appeal to the Court of Appeals was granted June 6, 2012. Oral argument is scheduled for March 21, 2013.

Update #2: Reversed, May 2, 2013. The Court of Appeals breaks new ground in holding that negligence by an owner can be the basis of liability for farm animals, and says that it could apply the same rules to household pets in the future in an appropriate case:

To apply the rule of Bard—that “when harm is caused by a domestic animal, its owner’s liability is determined solely” by the vicious propensity rule (6 N.Y.3d at 599, 815 N.Y.S.2d 16, 848 N.E.2d 463)—in a case like this would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property.

We therefore hold that a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal—i.e., a domestic animal as that term is defined in *126 Agriculture and Markets Law § 108(7)—is negligently allowed to stray from the property on which the animal is kept. We do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case.

April 2nd, 2012

Section 230 April Fool’s Hoax – A Deconstruction

Is it April 2nd already?

Welcome to April 2nd, and that means deconstructing yesterday’s web hoax that dealt with a phony bill by Senator Joe Lieberman that would effectively ban anonymous commentary on the Internet. The bill does this by stripping away the immunity that content providers currently enjoy from Section 230 of the Communications Decency Act. That would expose bloggers, forum owners and a panoply of others to potential liability. It played out on a dozen blogs that were all in on the joke.

How do I know it was just a joke? Do you really have to ask? If you’re just checking in to this blog for the first time you will find out by looking at this posting of mine from yesterday that this is the fifth year in a row I’ve done one of these. But since I’m now known (in the legal blogosphere) for running an annual gag, I created a new blog in February just for this purpose, to mask my identity: McIntyre v. Ohio. Prior to yesterday, the readership of that blog had been six Bulgarian spam bots and that guy Ken from Popehat. Thanks, Ken.

The new blog is dedicated to anonymous free speech, and named for the leading Supreme Court case on the subject. The idea for it popped into my brain late last year when Senator Lieberman asked Twitter to kill the Taliban feed. Obviously, the government can’t just shoot down someone’s speech rights, no matter how vile, because of that whole First Amendment thingie. This country was built on the marketplace of ideas prevailing, so the answer to political speech with which we disagree has always been “more speech.”

So the April Fool’s idea was that Lieberman would circumvent the First Amendment issue by simply stripping away the immunity that web hosts enjoy, thereby scaring the bejesus out of everyone in the private sector that is in any way involved with a web forum, and forcing people to kill controversial speech out of fear of litigation. It was called the Accountability for Free Discussion Act, or AFD, which is also the acronym for yesterday’s fun fest.

This was the premise: If a whole bunch of bloggers started talking about a major bill that would completely alter the Internet in this country, would any major media company publish the story despite it being unconfirmed and it being revealed on April Fool’s Day? The great problem, news-wise, of the digital age is the need to get to a story first, or at least fast. All too often that means taking shortcuts when first is defined in hours, or minutes. The old journalism adage is, if your mother tells you she loves you, check it out. But that sometimes falls by the wayside.

Lieberman was a perfect (unwitting) straight man for this because, as a pragmatic centrist, he is disliked by passionate ideologues on both sides of the political aisle. That means that there are a lot people who want a negative story about him to be true. People like seeing stories that confirm their own feelings and they are often willing to accept such stories without additional confirmation. (Political commercials feed on this to energize political bases.) One sample comment from someone suspending belief in the hope it was true came out of Daily Kos:

You know, if it was anyone else I’d think it was an April Fool’s joke.
But Lieberman is such a weasel, it has to be true.

There were other reasons for Lieberman as well. The Senator is retiring, making him a good target since there is no political fallout if constituents should actually believe it but don’t realize it was a prank. He is also the chairman of the committee on Homeland Security and can voice such a bill in an anti-terrorism context, with accountability being used as a means to disrupt anonymous communications in various forums. But perhaps the best reason to use Lieberman is that he wore a baseball cap to President Obama’s inauguration. Really Senator, what the hell were you thinking?

The major complicating factor in all this was that April Fool’s Day fell on a Sunday. Sunday sucks for news and blogs but we can’t change the calendar.

We tried to use that ugly fact to our best advantage. I figured that if we struck at dinnertime, under the assumption that all of the other April Fool’s gags had played themselves out by that point, we might have a better shot. Also, it would be far less likely for anyone from Lieberman’s office to quickly put out a denial. (If he did put out a denial, we were going to claim victory in that the bill had been withdrawn.) Essentially, the only people still involved with April Fool’s by this time were two groups: kids those telling the same joke for the 30th time because their parents laughed the first time to humor the child, and other kids trying to pawn off the last of the bug-flavored jelly beans.

So we slipped the story out at dinnertime on that little, bitty blog where the plan was for it to be promptly “found” by a “real” blog, Daily Kos, and then quickly spread. Most of the co-conspirator bloggers that you see below had actually written their bits a few days in advance. We only had a couple hours to create a viral political story from whole cloth. Did we get major media? No. And kudos to those that saw it but didn’t bite.

But were other folks taken in? You bet. And not just anyone, but the super cynical types that read political blogs and don’t generally believe much of anything — unless it confirms their worst perceptions about others. Just read the comments at Patterico (politically right) and Daily Kos (politically left) if you don’t believe me.

One big source of inbound traffic was a popular forum called Hacker News. I felt bad about that because, well, those folks are a lot smarter than us and know how to break our digital windows. (Please. Don’t. Keep reading.)

But before any of you get angry at me or my co-conspirators listed below, remember this: Each of the authors participated because we feel strongly about protecting the First Amendment. (I’ve twice defended defamation claims, one in the past and one currently.) So while you may have been fooled for a few hours, or even angered, you should know that those who did the fooling are your teammates in vigilance against those that wish to encroach on our rights to speak freely. Most of the jokesters are lawyers. We get it.

There are civil libertarians on both sides of the aisle:

Joe Lieberman v. the Internet: It’s not over. (Adam B. @ Daily Kos)

End of Section 230 Protection for Bloggers? (Patterico @ Patterico’s Pontifications)

Thanks To Senator Lieberman, You Guys Are Going To Get Me Sued (Ken @ Popehat)

Dear Commenters: We Can’t Protect You Anymore (Mystal @ Above the Law)

Anti-terrorism law threatens First amendment? (Frank @ Point of Law)

Section 230 Amendment strips websites of immunity from anonymous commenters (Randazza @ Legal Satyricon)

A Free Speech Disaster — The End of Anonymous Commenting? (Cuban @ The Cuban Revolution)

Lieberman to Internet: You’re Fungus (Greenfield @ Simple Justice)

Anonymous Commenting Legislation By Joe Lieberman? (Tannebaum @ My Law License)

Blind-Squirrel Lieberman Finds Acorn (Bennett @ Defending People)

A One-Two-Punch Against Free Speech (Draughn @ Windy Pundit)

The Community You Create (Zubon @ Kill Ten Rats)

First Amendment Malpractice (Barovick at NY Medical Malpractice Law)

Will Free Speech in America Meet Its Match In Lieberman? (Wise @ Wise Law Blog)

There are some who may wonder why I go to all the bother of doing this each year. You will find the answer to that question in the same place where I explained why I not only dressed up in a turkey suit at Thanksgiving time, but actually published the pictures.

Finally, I’ve now run gags regarding the Supreme Court, the White House, and now Congress. I’m officially retired from the April Fool’s dodge. For real. My wife told me if I do this again she will kill me. Then divorce me.

Besides, when you think about it, what else is there? I mean, I know the U.N. is just down the street from my office, but how could that possibly be any fun?

No clients were injured in the creation, publication and execution of this hoax.

April 1st, 2012

Blawg Review is Back! (With some incredible, but true, stories)

One of the little known facts about April Fool’s Day is that actual news can be discussed. And so, without further ado:

Blawg Review (which I have hosted three times, see the right sidebar) is now back. It picks up where it left off, most appropriately with an April Fool’s prequel at George Wallace’s A Fool in the Forest. It’s theme is that of I’ve Got a Little List, from Gilbert & Sullivan’s The Mikado. Wallace’s blog is an art form in itself. It also reveals to the world some suitably absurd stories that are difficult to believe, but nevertheless true.

1. You know that Supreme Court argument on health care this past week? It seems the Republican party has used an audio clip from the Obama side in a commercial. But first, they distorted it. Tom Goldstein gives the details of the manipulation at SCOTUSblog and writes:

It is as if the RNC decided to take an incredibly serious and successful argument that has the chance to produce a pathbreaking legal victory for a conservative interpretation of the Constitution, drag it through the mud, and vomit on it.

More to the point, and why it is important on a blog such as mine that doesn’t deal directly with the healtcare law, but does deal (as all lawyers must) with the Supreme Court as an institution:

…the Justices now have before them a perfect illustration of the gross distortion that can instantly be made of recordings of their proceedings. What is to stop the same misleading stunt being pulled with the Justices’ own oral argument questions and comments? Nothing at all. The Court made a special exception in releasing the oral argument tape for the health care arguments so promptly, and it probably will hesitate before doing so again. If there were any chance that the Justices would permit cameras in the Court, I do not see happening now.

2. Last year a Montana woman was hit for $2.5M in damages in a defamation suit. The defendant, Crystal Cox, claimed she was an investigative journalist and covered under the state’s Shield Law. A decision this week indicates that she appeared more as an extorionist. According to the judge in the case:

…the uncontroverted evidence at trial was that after receiving a demand to stop posting what plaintiffs believed to be false and defamatory material on several websites, including allegations that [plaintiff] had committed tax fraud, defendant offered “PR,” “search engine management,” and online reputation repair services to Obsidian Finance, for a price of $2,500 per month. Ex. 33. The suggestion was that defendant offered to repair the very damage she caused for a small but tasteful monthly fee. This feature, along with the absence of other media features, led me to conclude that defendant was not media. (see.pp. 13-14)

That story of first trashing a good reputation and then offering to repair it for a fee is now being well-covered in the legal blogosphere, and each of these posts from the April Fool’s Blawg Review seems well worth reading. And it is being covered not just because of what the judge did, but because, in the truth-is-stranger-than-fiction department of April 1st, Crystal Cox is now rocketing around the blogosphere because she has now … well, you’re going to have to read for yourself to see what she has done to Marc Randazza, his wife, and their three-year-old daughter:

3. Finally, because I can’t leave you with two miserable stories such as the ones above, there is this from Jonathan Turley:

Pinch Me: First Truck Spills Millions of Coins All Over Highway, Second Truck Covers The Money In Candy . . . Men Wait Anxiously For Moosehead Beer Truck

So head over to the April Fool’s Blawg Review for more stories that are, most definitely, true. And if you have any kids in the household who are Harry Potter fans, there is a bonus clip of Daniel Radcliffe that they will enjoy.