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In a stunning opinion, the Sixth Circuit just concluded in Ohio State Conference of the National Association for the Advancement of Colored People v. Husted (PDF) that the State has held illegal elections from 1803 until 2005 that unconstitutionally burdened the right of Ohioans to vote.
So let's set aside the snark for a moment. What did the court say?
In 2005, the Republican-controlled Ohio legislature enacted a series of election changes in House Bill 234. It developed no-fault early voting and allowed for early in-person voting at least 35 days before the election. Because voters must register at least 30 days before an election, there was a five-day period in which a voter could register to vote and vote on the same day.
So prior to 2005, Ohio had zero days of early in-person voting; until 2014, it was 35 days; and the legislature amended that to 28 days.
That, the Sixth Circuit says, is unconstitutional.
It concludes that this cutback "significantly burdened" African American, lower-income, and homeless voters, so the law was subject to heightened scrutiny.
On what basis? The court notes that African Americans, lower-income individuals, and the homeless are distrustful of voting by mail; the complexities of voting by mail complicate efforts from these affected groups; and that lower-income voters' reliance on public transportation and wage-based jobs would create difficulties in voting in the 28-day period instead of the 35-day period.
So, it logically follows, that must mean that Ohio's decision to have zero early voting days from 1803 until 2005 was also unconstitutional. Those reasons, after all, certainly have applied for centuries to the same groups (with perhaps concessions to the nature of "public transportation" in the early nineteenth century).
Strictly speaking, I suppose, the Equal Protection Clause wasn't enacted until 1868, and the Supreme Court's opinion in William v. Rhodes subjecting election laws to some kind of Equal Protection analysis didn't come down until 1968.
But the court also notes that these groups "disproportionately have used in past elections the EIP voting times that . . . SB 238 eliminated, and that the number of individuals who have previously voted during these periods was not insignificant."
The court's opinion is cagey as to the fact that Group X used Procedure Y frequently. If we eliminate Procedure Y, what happens to the votes of Group X? Presumably, some of that group would find other opportunities to vote. But the court explains why the existing alternatives are insufficient for the reasons articulated (as would have been the case from 1803 to 2005).
And what if Group Y actually uses those other opportunities? It then explains, "the district court properly held that whether voters might adjust to vote during a different time in EIP voting such that overall turnout might not be affected 'is not determinative of the Equal Protection analysis.'" (Slip op. at 19.) Which is a pretty broad claim--one the court uses citing a few scraps from footnotes, concurrences, and dissents to justify. And, in fact, these scraps stand for a very different proposition--one need not "absolute certainty in predicting how many voters would be prevented from voting by laws that impose burdens on the right to vote," but that's quite a different claim than saying that one need not show any effect on voter turnout.
To say it's not determinative is one thing. But if it turns out that voter turnout is unaffected--or is, at best, highly speculative--what, precisely, is the burden? That would suggest, I think, that the burden is slight. That is, if the regulation has no discernible effect on turnout, it's very hard to say that the burden is "significant." The kinds of burdens that rise to the level of "severe" are the kinds that essentially prohibit ballot access, starting with Williams v. Rhodes and moving onward. This is a how hot was it problem--except the court expressly finds that how hot doesn't matter, which is a very different claim from saying that the precision of determining the heat does not matter.
And this portion of the opinion concludes with one of the most grotesque misreadings of Bush v. Gore I've seen. In footnote 4, it explains, "Moreover, while Bush v. Gore did involve disparate treatment, rather than burdens on the fundamental right to vote, we nonetheless find its motivating principle instructive in the present case given that the Equal Protection Clause can be triggered by either disparate treatment or burdens. That is, '[h]aving once granted the right to vote on equal terms"--such as expanding early voting opportunities--'the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another'--for example, by making it substantially harder for certain groups to vote than others. Bush v. Gore, 531 U.S. at 104-05."
If Bush v. Gore stands for any broader proposition beyond the Florida election in 2000, it is not for this.
The per curiam opinion expressed concern that county election boards, and the Florida judiciary, were arbitrarily changing the "value" of a "one person's vote" by instituting different recount procedures. So set aside the fact that it's dealing with a "vote"--that is, a ballot cast, and not with pre-election day opportunities. Even a broad interpretation of Bush v. Gore might apply it to those situations.
Instead, the fundamental problem in Bush v. Gore is the "later . . . treatment" in the context of that very election. Voters went to the polls in Florida in 2000 with Procedure A in place; after the election, Procedure B was instituted. That, to the per curiam majority, was the fundamental problem (whether one agrees or not).
For the Sixth Circuit to extend this principle to all changes ever made to any election system is a sweepingly broad interpretation of Bush v. Gore, one that I don't think can find any real support in the text of the opinion.
But really, this opinion stands for the broader proposition that once a State enacts a voting law, it is almost impossible to amend it in a way that places any change in burden on the people who took advantage of the process in that law.
It might be that SB 238 is a great law, or a terrible law. It might be that this law empowers a lot of voters who'd have no opportunity to vote, or it has no effect on turnout. I don't know. And that's my problem--I can't tell from this record. From the demands of the Court's Equal Protection Clause jurisprudence, I'd probably let the law stand. And the court tortures the law because of the utter lack of meaningful facts that support some kind of finding of burden.
The opinion goes on to some interesting Voting Rights Act Section 2 challenges (an entirely different and, I think, even more complicated analysis) and evaluates the executive order, but I wanted to focus on this narrow slice of the opinion--the slice that cannot possibly mean what it says to anyone in legal practice. As Rick Hasen notes, "If 28 days is unconstitutional and a voting rights violation, what does this say about places like New York, which offer no early voting?"
Or, as I wonder, what about the first 200 years of Ohio's history?

matches: v. v. v. v. v. v. v. v. v. v.


text:
differentiation among similar materials with respect to their containing organic, and some inorganic, filler.
are described in the following paragraphs and in Section 5.
should be used, and their development is encouraged.
tion of a conductive path.
of environmental conditions, especially dirt and moisture.
Subcommittee D09.12 on Electrical Tests. 39.
Current edition approved March 10, 1999. Published June 1999. Originally Annual Book of ASTM Standards, Vol 10.01.
published as D 495 – 38 T. Last previous edition D 495 – 94. Annual Book of ASTM Standards, Vol 10.02.
deleterious effect on the performance of the arc.1 Changes in both the timing of the intermittent arc and certain materials using inverted orientation. after the specimen has cooled.1 For definitions of terms used in this test method. the use of the tungsten rod electrodes is recommended duration.2. steel strip electrodes as the preferred technique. taken from a group of dissimilar materials.1 The apparatus (see Fig. method of re- 3. When testing materials with ditions as exist in alternating current circuits operating at high poor to moderate arc resistance (up to 180 s).2. A recommended circuit arrangement and Section 14). with the electrodes undisturbed from their 3. but at currents limited to units and tens of milliam. Any of these 3. 4. Thus.2 IEC Standard: 4. and then either (1) measuring the 3. and does not include the stainless steel electrodes.3. a thin specified to maximize data reproducibility among different test wiry line is formed between the electrodes. 3.3. the specimen to cool to room temperature.1 Definitions: NOTE 3—Some investigators have reported attempts to characterize the 3. n—a test condition in which the evaluating the damaged area after failure is to repeat the arc resistance test electrodes are located on the upper surface of the specimen. occurs intermittently between two electrodes resting on the It is permissible to make additional tests with rod electrodes. However. use the stainless voltage. however.” that is. The as to provide a basis for comparison with other data obtained severity is increased in the early stages by successively with such electrodes. rather than the crackly blue spark characteristic of a condenser discharge. test procedure for carrying out the second of these two means of 3. have low arc resistance. For values of arc resistance greater than decreasing to zero the interval between flashes of uniform 180 s. so surface of the specimen. decreases the variability often associated with the use of rod 4. D 495 2.2 In order to distinguish more easily among materials that electrodes on materials having poor or moderate arc resistance. because the corners of the stainless steel strip electrodes erode 4. The arc obtained will be relatively quiet.4. and in later stages by increasing the current.4 inverted orientation.3.2 Some organic compounds burst into flame without the 6. low-current type of arc resistance test 5. less steel strip and tungsten rod. Results obtained with the 4.s. use data obtained by this test method to infer that the materials examined occupy an unchanging quality relationship to each 4.4 The fourth type occurs by carbonization of the surface IEC 61621 Dry Solid Insulating Materials—Resistance Test until sufficient carbon is present to carry the current.3 Four general types of failure have been observed: appreciably under such conditions. be universally applicable because of the severe physical damage to the test area in many instances. NY 10036..2 This test method describes two electrode systems: stain- is intended to simulate only approximately such service con. Regardless of the conditions of anticipated use.1 arc resistance. Terminology resistance between 178 and 182 s than between 174 and 178 s. n—the end-point of the test procedure em. 3. tion. and the later stages are successively more severe. To High-Voltage.s. and obvious. use of the tungsten rod electrode system may be different from whereupon they are capable of conducting the current. sets. and is directly based upon Test Method D 495.3 normal orientation. 5.1 The stainless steel strip electrodes are referred to as rank. as well as other changes affecting the nature of the rials.2. the early stages of this test method are All of the factors that affect the disparate behavior of rod mild. Apparatus formation of a visible conducting path in the substance. electrodes.3 Others are seen to fail by “tracking. in normal or inverted orientation. characterizing the remaining insulating value of the damaged area is ployed in this test method (see Section 14).1 Discussion— Tests made with inverted orientation are more severe than tests made with normal orientation. increased data dispersion may be encountered. With other mate- the current. This technique peres. there is a much greater difference in arc 3.1 Many inorganic dielectrics become incandescent. refer remaining insulating value of the damaged area after failure by allowing to Terminology D 1711. can affect the duration of a test of most specimens with materials that evolve considerable gas during test. 4. much more weight should be given to a few electrodes. Interferences Reduced data dispersion has been encountered when testing 5. described in Appendix X1. Upon those obtained with the use of the stainless steel strip electrode cooling. they return to their earlier insulating condi. n—the total elapsed time in seconds insulation resistance between the electrodes or (2) determining the from the start of this test procedure until failure occurs (see percentage of breakdown voltage remaining relative to that obtained on an undamaged area of the specimen. Significance and Use other. Primary voltage control is made by a variable transformer 5 Available from American National Standards Institute. n—a test condition in which the original positions.1. The arc electrodes on such materials have not yet been fully reported.2 Definitions of Terms Specific to This Standard: original position of the electrodes.3 Abbreviations: changes can drastically alter a material’s position in order of 3.2 failure.1 The high-voltage. without disturbance of the 3. New rather than by a variable inductance because of its proved York.2. 11 W 42nd St. system. 1 for electrical circuit) is closely 4. seconds that overlap two stages than to the same elapsed time within a stage. especially discharge. 2 . 6. keep in mind that none of these methods will electrodes are located on the under surface of the specimen.4 Materials often fail within the first few seconds after a change in the severity stage. Still another. Low-Current Arc Discharges5 4. do not s.3.3. When comparing the arc resis- NOTE 2—IEC 61621 is technically equivalent to D 495. IEC 61621 describes only the tungsten tance of materials.2.
NOTE 5—Although provision has been made for the suppression of radio-frequency components of current in the arc. TT—A stop watch or electric interval timer 6 Jefferson Electric Type 721-411 luminous tube transformers have been found to operating at 115 V ac. R20 is about 50 V with FIG. s ⁄ 10 18 10 ⁄ s on. These resistors must be adjustable. WI. readable to 1 V in the satisfactory.3 Voltmeter.060 A.1. This resistor. Com- opening and closing the primary circuit according to the mercially available line voltage stabilizers that do not distort the voltage wave form are suitable. and a rated secondary current (on short circuit) of used to suppress parasitic high frequency in the arc circuit. with associated current ratings of 2 and 5 A. schedule in Table 1. A—An ac milliammeter capable of reading from 10 to 40 mA with an error of not over 65 %.. 6.7 Air Core Inductors—Inductance totaling from 1.1.1. TABLE 1 Sequence of 1-min Current Steps Step Current. will provide a 20 mA arc current. mA Time CycleA Total Time. during a test. R3 0 and R40 have values of about 30 V and 15V respectively. 1⁄4s off 180 10 10 continuous 240 20 20 continuous 300 30 30 continuous 360 40 40 continuous 420 A In the earlier steps an interrupted arc is used to obtain a less severe condition than the continuous arc. 1 Arc-Resistance Test Circuit a current rating of at least 13⁄4 A.1 Transformer. is permanently connected across the output wound or insulating nonmetallic cores of about 1⁄2 in. 13⁄4s off 14 60 1⁄4 10 10 1⁄4 s on. Similarly. The interruptor can be a synchronous motor driving three appro- priate sets of cams which actuate the contactor switches. to permit exact settings of the currents during calibration. provide arc currents of 30 mA and 40 mA respectively. R30.1. Before use. I—This motor-driven device is used to give the required cycles for the three lower steps of the test by NOTE 4—A constant primary voltage supply is recommended. Coils may be obtained from Cutler-Hammer. Closing switch S2 0.1 may be used if it can be demonstrated that equivalent data are obtained.2 is satisfactory. This is done by use of a suitable thermocouple-type r-f milliammeter temporarily inserted in series with the milliammeter.7.1. and nominally adjustable up to 135 V. with an accuracy of 61⁄120 s or better.1.7 of the autotransformer to indicate the voltage supplied to the mm) diameter and 5⁄8 in. An autotransformer 1. Other makes 8 of the same general construction will probably also be adequate.1. power factor corrected) with a rated primary potential of 115 V 6. A single coil of this inductance is not 6.) with equal or greater current-carrying capacity than listed in 6. Milwaukee. from bottom to top. (15. Inc. it may be shorted out by a by-pass switch when not in use. R 3—Rated at 15 000 V and at at 60 Hz ac. 30 cotton.5 Current Control Resistors. R10 is always in the circuit to provide a 10 mA current. with a current rating of at least 11⁄4 A.1. 6. 7 The Powerstatt (Superior Electric Co.6 Suppressing Resistor.or rated at 7 A or more.7 Ta.1. a rated secondary potential (on open circuit) of least 24 W.1. it may be desirable to check for their presence when the apparatus is first constructed.9 Timer. a current of less than 10 mA produces an unsteady (flaring) arc. enamel-covered wire. 3 . 6. to some extent. These resistors. along with the inductors in 6. D 495 6. when switched in.1. Since this milliammeter is used only when setting up or making changes in the circuit. R20. R10. Any other type or make meeting the requirements of 6. R40—Four resistors are required in series with the primary of Tv but in parallel with each other.8 Interruptor. 0. V1—An ac voltmeter.8 primary circuit. to make certain of its readings. Its value is approximately 60 V. (12.6 Tv—A self-regulating transformer (non. Each coil consists of 3000 to 5000 turns of wire range 90 to 130 V. be satisfactory.1. R10.5 H is obtained from about 8 coils of No. accurate to 1 s. to add R20 in parallel with NOTE 1—Switches SM to S40 are aligned in the sequence of their closing.2 to 6.9) inside length.4 Milliammeter.2 Variable Autotransformer. 6. 3⁄4s off 120 1⁄2 10 10 1⁄4 s on. this meter should be calibrated in a test circuit containing no arc gap. is 15 000 V. 6.) or the Variact (GenRad Co.
Use rods about 13⁄4 in. 6. In either type of rod electrode. isolated from the operator by a suitable enclosure through (19 mm). IL—A 6 W. throw switch insulated for 15 000 V ac. or rough spots. C S—Rated at 10 A mm) thick stainless steel into 1⁄2 by 1 in. to prevent cracking or chipping.4 mm) diameter tungsten These contactors are operated by the interrupted cams. and must be so disposed cycle being used and permits the operator to start the first cycle that it and any circuit components are not readily accessible of each test in a uniform manner by closing S ⁄ just after the 18 when energized.1.2).006 in.1. (The edges must be free of burrs.1. pits. R1. lis Honeywell Regulator Co.18 Tungsten Rod Electrodes (see 5. (12. except finishing the pointed tips to the proper geometry (see Fig. C ⁄ .12 Safety Interlocking Contactor. 4) by swaging.7 by 25.2 for restrictions)— open spring contactors.10 Indicator Lamp. have been found satisfactory. 2).4 mm) and 110 to 125 V ac. The shank ensures correct orientation of the electrode which projects an insulating handle of sufficient length to point after sharpening (see 9.11 Control Switches—Toggle switches are convenient. 3). leaving an exposed length of about 3⁄4 in.9 mm) long in the electrode assembly. S1 and S4 0. of the simple rod electrode may be obtained by adjustment of the rod in the electrode assembly. which require 10 A ratings. grind the end of the rod at a 30° angle to the axis (see Fig. or use shorter rod lengths 6. steel jig for securing the electrodes during sharpening to ensure All may be of the size rated at 3 A and 110 to 125 V ac.2. (45 intermittent arc cycles listed in Table 1.1. of approximately 160° (see Fig.17 Stainless Steel Strip Electrodes— Cut 0. 4) to achieve a flat elliptical face. This lamp indicates the interrupting ignition wire rated at 15 kV or higher. C ⁄ . rated at 11⁄4A (or better) and 125 V ac. IL. lamp is extinguished.1.13 Interruptor Contactors. thus rod (tungsten welding rod has been found suitable) which is closing and opening the primary circuit and providing the free of cracks. 115 V lamp with a 2000 6. Exercise care in grinding 9 Microswitch contactors available from Micro Switch. in series. a Division of Minneapo. This switch must be or silver soldering. C ⁄ —Normally- 18 14 12 6.16 Sharpening Jig for Tungsten Rod Electrodes—A 6.. 2 Grinding and Polishing Block with Tungsten Rod Electrode in Place 4 . Make the electrodes from 3⁄32 in. FIG. fastened into a square shank (see Fig. (2.15 6. D 495 6. (0. single. brazing.1.1.14 High Voltage Switch. S 4—A single-pole.) Bend each strip open the contactor and thus remove high voltage from the slightly in the middle of the long dimension to form an angle electrodes. 6. this interlocking contactor is installed so that raising the draft shield around the electrode assembly will strips. 6.1.15 Wiring—All wiring in the arc circuit must be of V resistor. although correct orientation ensure operator safety.1. Freeport.
men from air drafts.1 Stainless Steel Strip Electrode Assembly (see Fig. and provide a clear view of the arc from a position may be suffıcient to result in fire. ( c) electrodes are mounted in square shanks and sharpened in a correctly made jig. (b) support rods are required to track. ing factors are controlled: (a) axis of tungsten rod is perpen. The deemed most significant. Provide test. Solidly ground all electrically specimen is at the same level height. 8.19 Electrode Assemblies—These assemblies provide a 7.1. If electrodes are not mounted in square shanks. (6. may a transparent shield around the assembly to protect the speci. specimens so as to minimize the possibility of such occurrences 3. Make all comparison tests of parts in proper orientation will automatically be obtained if the follow. 6. and 8. moisture. Provide means for use at the completion of any test area. explosion.003 in.250 6 0. Either use an electrode holder such as the one in Fig. (6. Specimens and Number of Tests and at angles of 45° to a line joining the corners. 8. similar locations. test at least five use the rod electrode assembly with the rods separated and specimens 0. electrodes on the top of the specimen surface with the corners down and spaced 0.08 mm) apart. (6. D 495 FIG.19.25 mm) in thickness. obtain FIG.1 For standard comparison of materials. Construct each essential that the test apparatus. Fig.1 Lethal voltages may be present during this test.1. It is the arc to the top surface of the specimen. (12. or finger marks can affect the time dicular to the axis of the support rod.35 6 0. 7)—Place two stainless steel strip and to eliminate the possibility of personal injury. whether for stainless steel strip electrodes or for that may be electrically connected to it. Make each test on a flat surface of the specimen. or 8. 8)—Position the electrodes so that they lie in the same closer than 1⁄2in.4 mm) to the specimen edge nor Fig. test chambers. Design test equipment. test chamber. Fig. particularly in the test. and Fig. and all associated equipment assembly. 4 Top and Side Views of Tungsten Rod Electrode proper orientation by adjusting and rotating the electrodes after they are inserted in the appropriate electrode assembly.125 6 0. Test vertical plane and are both inclined 35° from the horizontal thin materials by first clamping them together tightly to form a (thus inclined 110° between their axes). resting on the stainless steel strip electrodes. Provide ample air space conductive parts that any person might come in contact with below the specimen. Protect the operator from inadvertent contact with the compressed gas or in oil.2 When testing molded parts. (3.1. 3 Strip Electrodes and Holders gripped in the pivot blocks in a position such that the axis of each electrode is inclined at 35° when the support rods are horizontal. 3. When making high voltage tests. so that the top surface of each and installed for safe operation. If affected.250 6 0. retain a charge even after disconnection of the voltage source. Check to see that the specimen as close as possible to the recommended thickness.35 6 0.010 in. or rupture of the slightly above the plane of the specimen. Adjust each electrode so that it rests independently test to ground any parts which: were at high voltage during the with a force of 50 6 5 g on the top of the specimen.7 mm) to a previously tested area. 5. 4 and area not closer than 1⁄4 in. clean specimens or parts with a 5 . and test 6.19. apply the arc to a location space the tips 0. be properly designed tungsten rod electrodes.3 Dust. Fig. especially in the region directly below the during the test. and (d) the spacing between electrode tips is adjusted with the support rods in a horizontal position. with each test 6. the energy released at breakdown electrodes.2 Tungsten Rod Electrode Assembly (see Fig.003 in. 7. may have acquired an induced charge during the test.08 mm) apart. and Fig. Safety Precautions means of holding the electrodes and specimen and of applying 7. and allow venting of combustion products Thoroughly instruct all operators in the proper way to conduct in cases where specimens give off toxic smoke or gases during tests safely. 6. 6. minor axes of the elliptical tip surfaces are horizontal.17 6 0.
2) with its elliptical tioning. static voltmeter across the secondary of Tv.2 Sharpen the tungsten rod electrodes when examination S10 and S1 closed. Ta.1 With the circuit connected as shown in Fig. S4.1. state the successive cuts.2 Tungsten Rod Electrodes: 10. 1 to 000) held between the fingers. Calibration be sure that they are free of burrs.2.08 mm).3 Adjustment of Secondary Current— With the cor- observable at 153 magnification. comes into contact with the high voltage wiring of the tion occur. Cleaning and Sharpening Electrodes when no burrs or rough edges are observable at 153 magni- 9.1. polish the rod surface rectly spaced electrodes resting on a lava or ceramic block and by rotating it on its axis using successive grades of emery paper with the draft shield closed.1 Stainless Steel Electrodes—Use two new corners of the fication. stainless steel strip electrodes for each test. First. Hold the surface against before testing. 1. close switches S 1. to of the tip edge shows that it has been rounded to a diameter of provide an open circuit operating voltage of 12 500 V. Then mount the Adjust R1 0 to give the required current of 10 mA as indicated 6 . proves to be the most effective technique of cleaning the 10. electrode in the sharpening jig (see Fig. or when burrs or rough edges are 10. The application of a continuous 40 mA arc for de-energized by opening S1 before each change in connection approximately 1 min (without a specimen in place) often is made. no cleaning or sharpening is 10. However. these instructions may be disregarded. calibrate required. the operator necessarily 9. using No. a rotating polishing disk or rub against a stationary machinist’s flat. The resulting elliptical face should be a highly nature and quantity of contaminant present (if known) in the report. (0.2 Open Circuit Operating Voltage— Attach an electro- electrodes. 5 Strip Electrodes in Place cloth containing water or other suitable solvent before condi. the test apparatus for correct voltage and current as follows: 9. initially adjust the autotransformed.1 If excessive accumulations of products of decomposi. polished surface inclined at 30 6 1° to the axis of the electrode.1.030 in. With S 4 open and 9. Wipe such specimens with a dry cloth immediately face flush with the surface of the jig. clean the rod electrodes gently with laboratory secondary circuit. Other than inspecting the electrode corners to 10. and S10. 1 to No. (from No. D 495 FIG.1 In making these calibrations. Replace electrodes after four tests.2. It is therefore imperative that the circuit be tissues. 000 emery or emery paper to make NOTE 6—If the purpose of the test is to ascertain the effect of contamination. The electrodes are considered properly sharpened and polished 9. 0.
1. 13.7 11⁄2 38 13⁄4 44. to provide comparison with previous information procedure until no further adjustment is necessary to obtain 10 obtained with rods). D 495 in. 7 .s.3 0. the obtained with the s. tungsten rod voltage (typically around 110 to 115 V) for all subsequent electrodes may be used to test materials having arc resistance calibration and testing.s. close S40 and adjust R40 to give a 40 mA current.500 12.2 If specimens have been kept at a temperature close to or below the dew point of the surroundings in which the test will be run. to obtain the required voltage across voltmeter V as that the omission of this step has no effect.s. placing R20 in parallel with R10. if with Procedure A of Practice D 6054. finally.s. Repeat this example. 13.254 0.1 Stainless steel strip (s. If the s. 11. use the 10 mA to indicate proper suppression of r-f. 6 Holder Detail the effect of exposure to humid atmosphere is of interest. 12. prevent condensation on the specimens by warm- ing the specimens in a dry atmosphere.1 This test method describes two electrode systems: FIG.4 0. Choice of Electrodes 12. electrode system.s. by the milliammeter A. thus times greater than 180 s when tested using s. and 12.s. Note the reading on the voltmeter V at this 12.1 Condition specimens prior to testing in accordance 13.2 The choice of electrode system depends upon the result current in the secondary when the equipment is first set up. close S2 0 along with S10. In such cases the rod readjust Ta to give an open circuit secondary voltage of 12 500 electrodes may be used to give additional information. (for V as indicated by an electrostatic voltmeter.650 16.) electrodes.1 Since the corners of s.025 ⁄ 9 16 14.010 0.s. mA and 12 500 V.2 Lower the draft shield.4 NOTE 1—The 0. Close S30 and adjust R30 for a 30 mA current.010-in.8 1 25. mm in. If the apparatus is checked for r-f 12.001 0.s. electrodes.1 Place the specimen in the appropriate electrode assem- 11.5 1⁄16 4. Conditioning bly (see Section 12) and check the spacing. 7 Strip Electrode Holder Assembly 12. 11.2.s.s. electrode r-f thermocouple milliammeter (see Note 5) should also read system yields an arc resistance time less than 180 s.2 Tungsten rod electrodes. For some insulation. Next. mm 0. electrode system for that material.s. FIG. slot and the corresponding angled corner must be made to provide a left and a right holder. Maintain this appreciably at testing times exceeding 180 s. electrodes can erode time while the arc is continuous at 10 mA. Open S4 again and s.1.s. close S1 and adjust T a. Adjust R20 to give an arc current of 20 mA. Procedure for Determination of Arc Resistance Time and. in which case the use of Procedure C of Practice D 6054 is recommended. unless it can be shown necessary. established in the calibration procedure. NOTE 7—Warming the specimens in a 50°C oven for about 30 min is suitable in most cases.
report an arc resistance value. D 495 FIG.1.1. and 15. lava. 14. after a tracking path 13. If the arc should “climb” or flare voltage is applied. formation of conducting paths across the entire surface of the 15.2. Report 14.3 Begin the test by first closing S1.1 Failure of materials for which this test method has the 15.2 Conditions of fabrication. Observe 14. or ceramic.1. In such instances. a persistent scintillation S1. simul.4 Particulates suspended in gases generated from burn- ing of the material obscure the arc and make it impossible to NOTE 8—Gases are expelled forcibly from some insulators. the disappearance of the arc into the specimen. The trend toward failure occurs over a broad interval of time taneously close ST and S ⁄ to begin the timer and the first level 18 before all parts of the arc disappear. the indicator lamp. immediately is no visible arc. thus causing the arc to flutter. The definite end-point occurs with the 15. interrupt the arc current and stop the interval timer by opening 14. Just after the lamp is extinguished. a noticeable change in sound.4 While the test is in progress.6 mm) lift at its middle) and to observe current only in the later part of the time during which the the progression of tracking.1 In testing some materials. The time of the appearance of the first of irregularly. it is an indication that the circuit constants are these intervals is designated as the end-point. and SM. (1. determine if the arc is “normal” (lying close to the specimen 14.4 Thickness of specimen. Do not include the persistence of this position nearly on a level with the surface of the specimen to remaining scintillation as part of the arc resistance time. 8 .3 In successive arc intervals the track conducts the with not over 1⁄16 in. incorrect. At the end of each the end-point reached only when every part of the specimen minute increase the arc severity in sequence as shown in Table surface between the electrodes is carrying the current and there 1 until failure occurs as defined in 3. In these instances. consider of arc severity in accordance with Table 1.1 Report the following information: most meaning and significance will have an end-point that is 15. usually quite definite.2. S4. check the equipment for determine the end-point.3 Conditioning prior to test. will be observed. a description of the part. Record the seconds to failure.1 Type and trade name of material. specimen. 14.2 Failure of other materials is more difficult to describe. 8 Tungsten Rod Electrode Assembly 13. watch the arc from a obviously is completed. or if not a standard specimen.1. close to the electrodes. Interpretation of Results 15. It may be preferable in such cases to proper operation by examining the arc for quietness and maintenance of a report simply that failure occurred by burning rather than to position close to an inert surface such as glass. At failure.
1) with switch S4 open.3.7 Median and minimum arc resistance times. This can be met by a voltage ratio.2. The ratio of this additional voltmeters.1 This test method is intended to determine the frac. Continue these steps general. X1. preferably of the serious physical damage to the specimen that the performance electrostatic type. and arced insulating materials in particular. is known up to about 1000 V. E. for situations in which arc currents are not limited to a low tion of breakdown voltage remaining after completion of the value such as 0. it is necessary to between the electrodes in an arc-resistance test. are required.1 The apparatus for this test is identical with that electrodes left undisturbed in their original position on the described in Section 6 of Test Method D 495 and the circuit specimen. Below 500 V it shall be relied upon in such cases. when X1. Plate glass. Exercise caution 7000 V. raise the voltage from zero by material may determine whether or not insulation will have to means of the autotransformer. VOLTS AFTER TRACKING TEST FOR DETERMINATION OF SURFACE BREAKDOWN VOLTAGE RATIO AFTER FAILURE OF SPECIMENS IN ARC-RESISTANCE X1. and take readings on the lowest be replaced following removal of the causes of a temporary or appropriate scales of V2 and V3 for each increase that gives a accidental arcing condition in service.1 arc resistance. It shall read at least 500 V.01 A or less.8 Special remarks. but will relate the readings of the primary voltmeter.1. root-mean- the arc-resistance Test Method D 495 has resulted in such square reading meter of very high resistance. as follows: breakdown voltage (“volts after tracking”) to the average X1.1. X1. and 125 V. No activity has been planned to mal or inverted. stainless steel electrodes.1 Scope in applying the results prior to a thorough analysis. are added.4 Calibration of V2 versus V3 cooling after surface failure under electrical arcing.1. Keywords 16. 16. and softening. Prepare a calibration curve from these data for use in 9 . This characteristic of a switches S1 and S1 0 closed. The degree to which a tion. track formed in a specimen of electrical insulating material X1.6 Number of tests. whichever is larger. if any. will melt and become conducting in the area specimens in the test for surface breakdown. and 15. a statement of precision. 1 is also identical.3. but after the specimen has cooled to room tempera. replace the electrode assembly. The judgment of the operator shall be higher. X1. between X1.1. develop such information. A breakdown voltage test is performed between the arc X1. 17. multi-scale meter with full-scale readings of about 25. It is used only occasionally to calibrate the of a voltage breakdown test at the damaged area would have circuit. high-voltage low-current dry arc resistance is determined 15.1.1. D 495 15. tungsten rod electrodes information has been presented to ASTM upon which to base APPENDIX (Nonmandatory Information) X1. It is to be connected.5 Electrode system used and orientation.2. dry arc resistance.3 Apparatus when failure has occurred as described in Test Method D 495. for instance burning.3. Precision and Bias 17.2 Voltmeter V3 shall be a high-voltage. with an accuracy of 65 %.4.1 In order to determine the breakdown voltage for for example. if necessary.2 This test method has no bias because the value for 15.1 This test method has been in use for many years. when necessary. 1). With to the designer of electrical equipment. but no current. after arcing is stopped. V2 and V3. except that two ture following failure in the arc-resistance test.2 The breakdown voltage of insulating materials in connected to X and then to Y.1 Certain insulating materials are known to recover a substantial measure of their original insulating value upon X1.1.1. 15. accurately readable to 610 V by means of a low-range scale.2 Significance and Use ground and position X or Y (Fig. arrangement shown in Fig. whether nor. total increment of about 100 V when the readings of V3. solely in terms of this test method. 75. with the V3 voltmeter. preferably to 6000 V or little or no significance. low 16. especially X1.2 This test method should not be used when failure in X1. It shall be accurately readable to 61⁄2 V or to6 5 % areas of the specimen shall be known as the surface breakdown of the reading.9 Kind and amount of contaminant. from the “failure” by opening S4 and attaching the ungrounded side of V3 to some that may exist under arcing conditions is of great significance convenient point electrically equivalent to X or Y (Fig. V2. to the actual recover its insulating value completely upon stoppage of the high voltage applied to the electrodes. then take steps of about 500 V up to about to decrease as the available current increases.1 Voltmeter V2 shall be connected directly across the breakdown voltage (“volts before tracking”) obtained in a terminals H and F of the primary of the high-voltage trans- similar manner with the arc electrodes resting on undamaged former Tv.1. high voltage. material will recover. To obtain this calibra- arc and subsequent re-solidification.
11.7. 610-832-9555 (fax). at the address shown below. Continue raising the electrode voltage in steps of 100 and surface breakdown voltage ratio. This standard is copyrighted by ASTM.1.7 Procedure for Determination of Arc-Resistance X1.1.7 Special remarks. X1.5.11.11 Report path has been formed between the electrodes. if not the action of the arc.astm.8 Kind and amount of contaminant.1 Use specimens as specified in Test Method D 495. Your comments will receive careful consideration at a meeting of the responsible technical committee. 10 . are entirely their own responsibility. to a reading equivalent to a voltage of 200 at the electrodes.1 The procedure for the determination of arc.1. open S 4 and with S10 closed raise V2 by means of Ta men. X1.11.9 Number of Tests X1. their positions during the procedure described in X1. permit them and the tested area to cool approximately to room X1.5 Number of tests. for instance burning.11.5 Test Specimens X1. If you feel that your comments have not received a fair hearing you should make your views known to the ASTM Committee on Standards.3 Conditioning prior to test.org).1 Test at least five specimens for arc-resistance time D 495.1.1. United States. The American Society for Testing and Materials takes no position respecting the validity of any patent rights asserted in connection with any item mentioned in this standard.1. if any.2 Without moving the electrodes or specimen from X1.1.org (e-mail).1.10 Calculation Breakdown Voltage X1. D 495 describing the breakdown voltage of arc paths on specimens by at the electrodes for which this last step was set is the converting from the reading of V2. temperature. watching V2 for a noticeable X1. X1. X1.11. as follows: conducting an equal number of similar tests of breakdown X1. X1.8. if not a standard speci- to zero.6 Conditioning X1. assisted. 3 s (estimated) before stopping the arc by opening all of S ⁄ to 18 S40 that may have been closed.8 Cleaning Electrodes X1. PA 19428-2959. Return Ta X1.1.6 Averages and minimums of arc resistance times decrease. either reapproved or withdrawn.7.11.2 Conditions of fabrication.1 When failure occurs in the arc resistance test.7.4 Thickness of specimen. This standard is subject to revision at any time by the responsible technical committee and must be reviewed every five years and if not revised. or through the ASTM website (www. Your comments are invited either for revision of this standard or for additional standards and should be addressed to ASTM Headquarters. Close S4 for an estimated 1 s. Individual reprints (single or multiple copies) of this standard may be obtained by contacting ASTM at the above address or at 610-832-9585 (phone). which you may attend. breakdown voltage of the arc path. close S10 to provide a steady arc for additional each of the values obtained for the exposed areas. 100 Barr Harbor Drive.1 Type and trade name of material. if desired. a description of the part. stop voltage on areas of the surface that have not been exposed to the interval timer immediately by opening ST.1 Condition the specimens as specified in Test Method X1. X1. X1.9. until a voltage is reached where closing this switch produces a and moderate but noticeable drop in the reading of V2.10.1.7. down voltage ratio) remaining after performing an arc test in resistance time is first carried out exactly as specified in Test accordance with Test Method D 495 shall be calculated by Method D 495. by means of Ta.1 Report the following information: X1. and the risk of infringement of such rights. keeping S4 open except for the 1-s test periods. Then. PO Box C700.11. West Conshohocken.6.1 The fraction of breakdown voltage (surface break- X1. by a mild air blast. or service@astm. Users of this standard are expressly advised that determination of the validity of any such patent rights. and dividing the average of these into already closed.1 Clean the electrodes in accordance with Test Method D 495.11.1.11.1. X1. The voltage X1. and breakdown voltage of the exposed areas. This is to ensure that a complete X1. soft-ening.

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190 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES statutes137 has the legislature specifically declared or recognized irrigation as a lawful riparian use of water. Territory of Dakota A Territorial statute enacted in 1866 read as follows:138 The owner of the land owns water standing thereon, or flowing over or under its surface, but not forming a definite stream. Water running in a definite stream, formed by nature over or under the surface, may be used by him as long as it remains there; but he may not prevent the natural flow of the stream, or of the natural spring from which it commences its definite course, nor pursue, nor pollute the same. Toward the end of the Territorial regime, the supreme court held that on the filing of a homestead entry for which a patent was subsequently issued, rights in the stream flowing over the land vested in the entryman.139 In affirming this judgment, the United States Supreme Court approved the principle that a proprietor of land bordering upon a running stream is entitled to the benefit to be derived from the flow of its waters as a natural incident to his estate; that when the Government ceases to be the sole proprietor, the right of the riparian owner attaches and cannot be subsequently invaded.140 "As the riparian owner has the right to have the water flow ut currere solebat, undimin- ished except by reasonable consumption of upper proprietors, and no subse- quent attempt to take the water only can override the prior appropriation of both land and water, it would seem reasonable that lawful riparian occupancy with intent to appropriate the land should have the same effect." The Court quoted with approval the Dakota Civil Code section 255 cited immediately above. North Dakota and South Dakota.-The Territorial Civil Code section 255 was carried over into the laws of both North Dakota and South Dakota on their cre- ation in 1889.141 It was cited as current authority by the supreme courts of both States in decisions in which riparian rights were involved or considered.142 137Tex. Laws 1889, ch. 88; Laws 1895, ch. 21; Laws 1913, ch. 171; Laws 1917, ch. 88. 138terr. Dak. Laws 1865-1866, ch. 1, § 256, Civ. Code § 255 (1877). 139 Stun v.Beck, 6 Dak. 71, 50 N. W. 486 (1888). 140Stun v. Beck, 133 U. S. 541, 547, 551 (1890). 141 The Enabling Act provided that all Territorial laws in force at the time of admission of the States to the Union "shall be in force in said States, except as modified or changed by this act or by the constitutions of the States, respectively." 25 Stat. 676, § 24. See also N. Dak. Const, Schedule, § 2. For subsequent history in the two States, see: (1) North Dakota: N. Dak. Rev. Codes § 3362 (1895); Rev. Code § 4798 (1905); Comp. Laws § 5341 (1913); Rev. Code § 47-0113 (1943); Cent. Code Ann. § 47-01-13 (1960), repealed, Laws 1963, ch. 419, § 7. (2) South Dakota: S. Dak. Rev. Codes, C. C. § 278 (1903); Rev. Code § 348 (1919); Comp. Laws § 348 (1929); Code § 61.0101 (1939), repealed, Laws 1955, ch. 430, § 1. 142See McDonough v. Russell-Miller Mill. Co., 38 N. Dak. 465, 471-472, 165 N. W. 504 (1917); Johnson v. Armour & Co., 69 N. Dak. 769, 776-777, 291 N. W. 113 (1940); Lone Tree Ditch Co. v. Cyclone Ditch Co., 15 S. Dak. 519, 525-527, 91 N. W. 352 (l902);Redwater Land & Canal Co. v.Reed, 26 S. Dak. 466, 474, 128 N. W. 702 (1910).


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In connection with petitioner Venegas' civil rights suit under 42 U.S.C. 1983, he and respondent Mitchell, an attorney, entered into a contingent-fee contract providing that, inter alia, Mitchell would receive a percentage of any gross recovery, which would be offset by any court-awarded attorney's fees, and would be allowed to intervene in the action to protect the fee award. Venegas obtained a judgment and was awarded attorney's fees, $75,000 of which was attributable to work done by Mitchell. The fees were awarded under 1988, which enables civil rights plaintiffs to employ reasonably competent lawyers without cost to themselves by authorizing the payment of a "reasonable attorney's fee" by a losing party to a prevailing party. After Venegas obtained different counsel to handle his appeal, Mitchell filed a motion for leave to intervene, requesting that the District Court confirm a lien on the judgment for $406,000 in fees that were purportedly due him under the contract. Among other things, the court held that he was not entitled to intervene, but it refused to disallow or reduce the contingent fee, holding that it was reasonable and not a windfall to Mitchell. The Court of Appeals reversed the District Court's holding denying intervention, but agreed that 1988 does not prevent a lawyer from collecting a reasonable contingent fee even if it exceeds the statutory fee award and that Mitchell's fee was reasonable and not a windfall.
1. Section 1988 does not invalidate contingent-fee contracts that would require a prevailing plaintiff to pay his attorney more than the statutory award against the defendant. Neither the section's language nor its legislative history supports the view that it prevents an attorney and client from entering into a contingent-fee agreement. Moreover, this Court, in holding that it is the prevailing party, rather than the lawyer, who is eligible for fees, has recognized that it is the party's right to waive, settle, or negotiate that eligibility, Evans v. Jeff D., 475 U.S. 717, 730 , and has implicitly accepted that statutory fee awards can coexist with private fee arrangements, cf., Blanchard v. Bergeron, 489 U.S. 87, 94 -95; Blum v. Stenson, 465 U.S. 886, 894 -895. Since a 1983 cause of action also belongs to, and can be waived by, the injured party, a contrary finding would place these plaintiffs in the peculiar position of [495 U.S. 82, 83] having more freedom to negotiate a waiver of their causes of action with their adversaries than a fee with their own attorneys. The fact that Blanchard v. Bergeron, supra, does not permit a contingent-fee agreement to impose a ceiling on the amount of the statutory fee award does not mean that such an agreement should also be ignored for the benefit of the client so that he need pay only the statutory award. Blanchard dealt with what the losing party must pay the plaintiff, not with the contractual obligations of plaintiffs and their attorneys, and entitlement to a 1988 award does not belong to the attorney. Also unpersuasive is Venegas' argument that requiring him to pay more than the reasonable fee authorized by Congress would greatly reduce his recovery and would impose a cost on him that the defendant should pay, since the amount payable under a fee agreement is not necessarily measured by the "reasonable attorney's fee" that a defendant must pay under 1988, and since depriving prevailing plaintiffs of the option of promising to pay more to secure their counsel of choice would not further 1988's general purpose of enabling them to secure competent counsel. Pp. 86-90.
2. Venegas offers no reason to accept his contention, rejected by the lower courts, that, even if contingent fees exceeding statutory awards are not prohibited per se by 1988, the fee in this case is unreasonable under both federal and state law. P. 90.
Richard M. Mosk argued the cause for petitioner. With him on the briefs was Michael S. Bromberg.
[ Footnote * ] Guy T. Saperstein, John A. Powell, Paul L. Hoffman, E. Richard Larson, and Theodore Eisenberg filed a brief for Saperstein & Seligman et al. as amici curiae urging affirmance.
This dispute arises out of an action brought by petitioner Venegas under 42 U.S.C. 1983 (1982 ed.) in the United States District Court for the Central District of California, alleging that police officers of the city of Long Beach, California, falsely arrested Venegas and conspired to deny him a fair trial through the knowing presentation of perjured testimony. After an order of the District Court dismissing Venegas' complaint as barred by the statute of limitations was reversed by the Court of Appeals, 2 Venegas retained respondent Mitchell as his attorney. Venegas and Mitchell signed a contingent-fee contract providing that Mitchell would represent Venegas at trial for a fee of 40% of the gross amount of any recovery. The contract gave Mitchell "the right to apply for and collect any attorney fee award made by a court," App. to Brief in Opposition 3a, prohibited Venegas from waiving Mitchell's right to court-awarded attorney's fees, and allowed Mitchell's intervention to protect his interest in the the fee award. The contract also provided that any fee awarded by the court would be applied, dollar for dollar, to offset the contingent fee. The contract obligated Mitchell to provide his services for one trial only and stated that "[i]n the event there is a mistrial or an appeal, the parties may mutually agree upon terms and conditions of [Mitchell's] employment, but are not obligated to do so." Id., at 1a. [495 U.S. 82, 85] Venegas subsequently consented to the association of co-counsel with the understanding that co-counsel would share any contingent fee equally with Mitchell.
Mitchell then filed a motion for leave to intervene, which requested that the District Court confirm a lien on the judgment for the fees purportedly due him under the contingent-fee contract in the amount of $406,000. The District Court held that Mitchell had not established his entitlement either to intervention as of right under Federal Rule of Civil Procedure 24(a)(2) or to permissive intervention under Rule 24(b)(2), primarily because the court could discern no connection between Mitchell's asserted rights under the fee contract and the substance of Venegas' civil rights action. App. to Pet. for Cert. 23a. The court went on to state its view, however, that the contract did not expressly provide for a lien and declined to decide whether the contract gave rise to an implied equitable lien on Venegas' recovery because the judgment had been stayed pending appeal. The court remarked [495 U.S. 82, 86] that Mitchell could bring an action in state court to establish his lien, if and when the judgment for Venegas became final. Id., at 26a. The District Court refused to disallow or reduce the contingent fee claimed by Mitchell, holding that in this case the fee contracted for was reasonable and not a windfall for the attorney. Id., at 27a-29a.
On appeal, the Ninth Circuit ruled that the District Court had erred in denying Mitchell permissive intervention, 867 F.2d 527, 531 (1989), but agreed, contrary to Venegas' submission, that 1988 does not prevent the lawyer from collecting a reasonable fee provided for in a contingent-fee contract even if it exceeds the statutory award, id., at 533. The Court of Appeals also agreed with the District Court that the fee provided for by the contract in this case was reasonable and not a mere windfall to Mitchell. Because the judgment in Venegas' favor had by that time been affirmed, the court remanded to the District Court to act on the merits of Mitchell's motion to confirm a lien on the recovery. We granted certiorari, 493 U.S. 806 (1989).
Section 1988 states in pertinent part that "[i]n any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." The section by its terms authorized the trial court in this case to order the defendants to pay to Venegas, the prevailing party, a reasonable attorney's fee. The aim of the section, as our cases have explained, is to enable civil rights plaintiffs to employ reasonably competent lawyers without cost to themselves if they prevail. It is likely that in many, if not most, cases a lawyer will undertake a civil rights case on the express or implied promise of the plaintiff to pay the lawyer the statutory award, i. e., a reasonable fee, if the case is won. But there is nothing in the section to regulate what plaintiffs [495 U.S. 82, 87] may or may not promise to pay their attorneys if they lose or if they win. Certainly 1988 does not on its face prevent the plaintiff from promising an attorney a percentage of any money judgment that may be recovered. Nor has Venegas pointed to anything in the legislative history that persuades us that Congress intended 1988 to limit civil rights plaintiffs' freedom to contract with their attorneys.
It is true that in construing 1988, we have generally turned away from the contingent-fee model to the lodestar model of hours reasonably expended compensated at reasonable rates. See Blanchard v. Bergeron, 489 U.S. 87, 94 (1989); Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564 (1986) (Delaware Valley I); Riverside v. Rivera, 477 U.S. 561, 574 (1986) (plurality opinion); Blum v. Stenson, 465 U.S. 886, 897 (1984). We may also assume for the purposes of deciding this case that 1988 would not have authorized the District Court to enhance the statutory award upward from the lodestar figure based on the contingency of nonrecovery in this particular litigation. See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 726 (1987) (plurality opinion) (Delaware Valley II); id., at 731 (O'CONNOR, J., concurring in part and concurring in judgment). But it is a mighty leap from these propositions to the conclusion that 1988 also requires the District Court to invalidate a contingent-fee agreement arrived at privately between attorney and client. We have never held that 1988 constrains the freedom of the civil rights plaintiff to become contractually and personally bound to pay an attorney a percentage of the recovery, if any, even though such a fee is larger than the statutory fee that the defendant must pay to the plaintiff.
Indeed, our cases look the other way. Section 1988 makes the prevailing party eligible for a discretionary award of attorney's fees. Evans v. Jeff D., 475 U.S. 717, 730 (1986). Because it is the party, rather than the lawyer, who is so eligible, we have consistently maintained that fees may be [495 U.S. 82, 88] awarded under 1988 even to those plaintiffs who did not need them to maintain their litigation, either because they were fortunate enough to be able to retain counsel on a feepaying basis, Blanchard v. Bergeron, supra, at 94-95, or because they were represented free of charge by nonprofit legal aid organizations, Blum v. Stenson, supra, at 894-895. We have therefore accepted, at least implicitly, that statutory awards of fees can coexist with private fee arrangements. See also Delaware Valley II, 483 U.S., at 726 (plurality opinion); id., at 749 (BLACKMUN, J., dissenting). And just as we have recognized that it is the party's entitlement to receive the fees in the appropriate case, so have we recognized that as far as 1988 is concerned, it is the party's right to waive, settle, or negotiate that eligibility. See Evans v. Jeff D., supra, at 730-731.
Much the same is true of the substance of a money judgment recovered under 1983 (exclusive of fees awarded under 1988), of which the contingent fee in this case is a part. A cause of action under 1983 belongs "to the injured individual[l]," Newton v. Rumery, 480 U.S. 386, 395 (1987) (plurality opinion), and in at least some circumstances that individual's voluntary waiver of a 1983 cause of action may be valid. Id., at 398 (plurality opinion); id., at 403 (O'CONNOR, J., concurring in part and concurring in judgment). If 1983 plaintiffs may waive their causes of action entirely, there is little reason to believe that they may not assign part of their recovery to an attorney if they believe that the contingency arrangement will increase their likelihood of recovery. A contrary decision would place 1983 plaintiffs in the peculiar position of being freer to negotiate with their adversaries than with their own attorneys.
Relying heavily on Blanchard v. Bergeron, supra, Venegas argues that if a contingent-fee agreement does not impose a ceiling on the amount of a "court awarded fee which would go to the attorney" (as he understands the holding of Blanchard, see Brief for Petitioner 9), such a fee agreement [495 U.S. 82, 89] should also be ignored for the benefit of the client so that he need pay only the statutory award. There are two difficulties with this argument. First, Blanchard did not address contractual obligations of plaintiffs to their attorneys; it dealt only with what the losing defendant must pay the plaintiff, whatever might be the substance of the contract between the plaintiff and the attorney. Second, we have already rejected the argument that the entitlement to a 1988 award belongs to the attorney rather than the plaintiff. See Evans v. Jeff D., supra, at 731-732.
Venegas also argues that because Congress provided for a reasonable fee to be paid by the defendant so that "a plaintiff's recovery will not be reduced by what he must pay his counsel," Blanchard, 489 U.S., at 94 , the plaintiff should be protected from paying the attorney any more than the reasonable fee awarded by the trial court. Otherwise, Venegas contends, paying the contingent fee in full would greatly reduce his recovery and would impose a cost on him for enforcing the civil rights laws, a cost that the defendant should pay. This argument, too, is wide of the mark. Blanchard also noted that "[p]laintiffs who can afford to hire their own lawyers, as well as impecunious litigants, may take advantage" of 1988. Ibid. Civil rights plaintiffs, if they prevail, will be entitled to an attorney's fee that Congress anticipated would enable them to secure reasonably competent counsel. If they take advantage of the system as Congress established it, they will avoid having their recovery reduced by contingent-fee agreements. But neither Blanchard nor any other of our cases has indicated that 1988, by its own force, protects plaintiffs from having to pay what they have contracted to pay, even though their contractual liability is greater than the statutory award that they may collect from losing opponents. Indeed, depriving plaintiffs of the option of promising to pay more than the statutory fee if that is necessary to secure counsel of their choice would not further [495 U.S. 82, 90] 1988's general purpose of enabling such plaintiffs in civil rights cases to secure competent counsel.
In sum, 1988 controls what the losing defendant must pay, not what the prevailing plaintiff must pay his lawyer. What a plaintiff may be bound to pay and what an attorney is free to collect under a fee agreement are not necessarily measured by the "reasonable attorney's fee" that a defendant must pay pursuant to a court order. Section 1988 itself does not interfere with the enforceability of a contingent-fee contract.
Venegas also argues that even if contingent fees exceeding statutory awards are not prohibited per se by 1988, nonetheless the contingent fee in this case is unreasonable under federal and state law. Venegas made this contention to both lower courts, and both courts rejected it. We find no reason in the record or briefs to disturb their conclusion on this issue. We therefore have no occasion to address the extent of the federal courts' authority to supervise contingent fees.
[ Footnote 1 ] The Third, Eighth, and Ninth Circuits have held that civil rights plaintiffs may be required to pay their attorneys contingent fees exceeding a statutory award made under 1988. Sullivan v. Crown Paper Board Co., 719 F.2d 667, 669-670 (CA3 1983); Wilmington v. J. I. Case Co., 793 F.2d 909, 923 (CA8 1986); Venegas v. Skaggs, 867 F.2d 527 (CA9 1989). The Tenth Circuit has held that a 1988 award places a ceiling on an attorney's permissible recovery under a contingent-fee agreement. Cooper v. Singer, 719 F.2d 1496 (1983) (in banc).
[ Footnote 2 ] Venegas v. Wagner, 704 F.2d 1144 (CA9 1983).
[ Footnote 3 ] Venegas v. Skaggs, No. CV 77-4047-RJK (CD Cal., Aug. 14, 1986), pp. 5-7.

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The big, long list of franchise lawsuits included below & disclosed in our 2016 Snap-on Franchise Disclosure Document (FDD) might embarrass some franchisors, but not Snap-on, Inc. (NYSE: SNA).
At Snap-on, we’re proud of how we’ve pulled ourselves up by our breaches.
Should we be embarrassed to be sued repeatedly for fraud, deceptive & unfair practices, misrepresentation…?
Should we hide our heads in shame just because of our continuous allegations of franchise law violations, wrongful termination, breach of contract, breach of implied covenant of good faith and fair dealing…?
The list of allegations we’ve been sued for by franchisees is a testament to the lengths we’ll go to to return shareholder value at the expense of our franchise dealers!
Snap-on Inc. is proud of our rich heritage of franchisee litigation and class-action lawsuits.
Should we be embarrassed at spending nearly $240 million settling franchisee lawsuits in the past decade?
Heck no! The hundreds of millions we’ve spent in litigation related to the crap we do through our Crap-on Dealer’s Strategy & Initiative is a negligible cost compared to the profits we reap by crapping on our franchise dealers.
Sure, we’ve got to pay off a few loudmouths and troublemakers, but the vast majority of franchisees just drop their Snap-on logoed britches and take it like… men.
At Snap-on Inc. (NYSE: SNA), we know you sometimes gotta drop a few breaches to keep raising stock value.
Daniel Jacobson v. Snap-on Tools Company LLC and Snap-on Inc.
Business and Professions Code and seeks un-reimbursed necessary employment expenses, restitution of fees deducted from compensation, overtime compensation, meal and rest period compensation, restitution of fees, liquidated damages, interest, waiting time penalties and available statutory penalties and damages. To be arbitrated on an individual basis.
Snap-on Tools of Canada Ltd. and Snap-on Credit Canada Ltd. v. Kevin Tyson.
Filed October 6, 2005 Snap-on Canada and Snap-on Credit Canada Ltd. as a collection action requesting judgment in the amount of $95,793.69, interest and costs against a former franchisee, Kevin Tyson.
Tyson denied the allegations and filed a counterclaim alleging breach of the franchise agreement and wrongful termination of the franchise agreement and seeking damages of $156,000, interest and costs. No trial date has been set.
Company LLC, Does 1 through 20 inclusive.
Montemurro, Nicholas Loffredo and David Pence (NJ).
Action set forth various alleged deceptive practices, alleged violation of RICO, state statutes prohibiting deceptive trade practices, deceptive franchise practices and consumer fraud, common law fraud, breach of contract, breach of fiduciary duty and breach of implied covenant of good faith and fair dealing. Snap-on paid class participants in March 2007. Snap-on recorded a $38,000,000.00 pretax charge in the second quarter of 2006 representing its best estimate of the costs to settle this matter, including attorney fees, costs and expenses.
Timothy Geisel v. Snap-on (TX).
Kevin Meehan v. Snap-on Tools Company (NJ).
breach of implied warranties, violation of deceptive and unfair trade practices statutes, tortuous interference with contract, tortuous interference with prospective business advantage, and defamation.
Steve Johnstone Holdings Ltd. and Steve Johnstone v. Snap-on Tools of Canada Ltd.
Chuck McDonald, Stanley Rogers, Charles Smith, Kevin Ford and Barry Gordon v. Snap-on Tools Company, Snap-on Credit Corporation and Cyril Gray (Class Action) (AR).
Filed May 22, 2003 Allegations include breach of contract, violation of the Arkansas Deceptive Trade Practices Act, civil conspiracy, and negligence.
The Snap-on franchisees and dealers who will loyally defend the Crap-on Dealers program no matter what we do to them!
The Crap-on Dealers Comment Page is Open!
Feel free to praise Snap-on’s “Crap-on Dealer Program” with your real name or anonymously!

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The first paper in this five-part series examined the history and structure of Common Core. Now, we turn to the question of Common Core’s constitutionality and legality. Proponents of Common Core adamantly argue that it is a state-led initiative, not a federal edict. The insistence that Common Core is “state-led” comes despite the federal government’s directed efforts not only to induce states to adopt Common Core with billions of dollars in Race to the Top (RTTT) grants, but also to keep states locked into the initiative after adoption through No Child Left Behind (NCLB) and Elementary and Secondary Education Act (ESEA) waivers. In light of the billions of federal dollars spent on Common Core, some have wondered why there has been so much effort put into to convincing the public that Common Core is “state-led.” Some may believe that the insistence that Common Core is not a federal marching order is purely political. But, in reality, claims that Common Core is state-led are little more than a shallow attempt to pay lip service to constitutional principles of federalism which limit the power of the federal government. This paper provides a brief overview of the concept of federalism, followed by an explanation of the federal government’s constitutionally limited role in education matters, and an explanation of how Common Core runs afoul of the letter and spirit of the Constitution and federal law.
Under the system of federalism established by the U.S. Constitution, the federal government’s role in setting education policy is limited. In the Federalist Papers, James Madison wrote: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” Put another way, Congress must have constitutional authority to pass a statute; it must be able to point to a specific clause of the U.S. Constitution authorizing the federal government to act. Because there is no constitutional authorization for Congress to regulate education, control of public education is a power that remains with the states, a fact that even the U.S. Department of Education concedes. Recognition of this restraint on federal authority may explain the adamancy with which the Department of Education and Common Core advocates argue that the initiative is a “state-led” effort. One must remember that the purpose of federalism is to protect liberty by diffusing power. As the Court noted in Sebelius, “The Framers thus ensured that powers which ‘in the ordinary course of affairs, concern the lives, liberties, and properties of the people’ were held by governments more local and more accountable than a distant federal bureaucracy.” Buttressing the federal constitutional framework, the Tenth Amendment to the U.S. Constitution serves as an additional check on consolidation of power in the federal government by protecting the prerogatives and powers of the states from usurpation by the federal government.
This is not to say that the federal government has no ability to influence state level policy in areas such as public education. Under Congress’ taxing and spending power found at Article I, §8 cl. 1 of the Constitution, even where Congress has no constitutional authority to legislate directly, it may nevertheless “offer funds to the States, and may condition those offers on compliance with specified conditions.” But even this power is limited by principles of federalism as explained below. The federal government’s authority to influence state action cannot morph into compulsion and still survive constitutional scrutiny.
In one of the earliest cases to address the taxing and spending clause, the Supreme Court approved of Congressional spending on objects beyond the scope of the enumerated powers of Article I, §8 in United States v. Butler, so long as the expenditure of funds advanced “the general welfare.” In that case, the Court invalidated a New Deal measure that sought to stabilize agricultural prices by controlling agricultural production, a feat which the federal government planned to accomplish by imposing a special tax on farmers participating in a particular program. The Court explained that although the federal government could use the taxing and spending clause for the general welfare and not just in exercising its other enumerated powers, the federal government could not use that power to accomplish an unconstitutional end. The government had argued that the scheme at issue was constitutional because farmers had a choice about participating. After first noting, “The asserted power of choice is illusory,” the Court continued, even “if this plan were one for purely voluntary co-operation it would stand no better so far as federal power is concerned. At best, it is a scheme for purchasing with federal funds submission to federal regulation of a subject reserved to the states.” Thus, from even the earliest cases addressing the taxing and spending power of the federal government, the Court was aware of the potential for governmental abuse of that power and transgression of the constitutional bounds of federalism.
In Pennhurst State Sch. & Hosp. v. Halderman, the Supreme Court applied these principles to conclude that States participating in the Developmentally Disabled Assistance and Bill of Rights Act of 1975 ("DDA"), were not required to assume the costs of providing certain treatment and services to mentally disabled citizens. The DDA provided financial assistance to participating States to aid them in creating programs to care for and treat the mentally disabled. The DDA also provided a variety of conditions for the receipt of federal funds. At the heart of the case was the DDA's “bill of rights” provision, which provided that mentally disabled citizens “have a right to appropriate treatment, services, and habilitation for such disabilities” to be provided “in the setting that is least restrictive of the person's personal liberty.” The plaintiffs, certain disabled citizens of Pennsylvania, sued their state-owned institution to enforce these “rights”— that is, to compel Pennsylvania to pay for the costs of these services.
With the guidance of Pennhurst, Dole and Sebelius, serious constitutional questions about Common Core become apparent. First, a strong case can be made that the conditions placed on Race to the Top grants, were not clear and unambiguous, as required under Pennhurst and Dole, such that participating states could exercise their choice knowingly and cognizant of the consequences of their participation. Many states were rushed to meet federal deadlines for RTTT grant applications and, like North Carolina, had to endorse Common Core and submit grant applications before the standards were finalized and published. The RTTT applications required states to explain how they planned to implement “college and career-ready” standards, Common Core being the only standards meeting the Department of Education’s requirements. In addition, there was no time for an analysis of the full financial implications of adopting Common Core and developing aligned assessments. But with $4.35 billion in federal RTTT grants at stake, the federal government’s push for states to adopt Common Core was an offer states could not refuse: 45 states took the deal. Moreover, in addition to the enticing “carrot” of RTTT funds, the Department of Education has added the coercive “stick” of full application of NCLB/ESEA. States refusing to implement Common Core cannot get much needed “flexibility” waivers exempting the states that acquiesce to Common Core from the most onerous provisions of the NCLB/ESEA.  Thus, the waiver policy can be seen as a type of post acceptance condition that was disparaged by the Court in Sebelius.
Second, there is a good argument that Common Core violates Dole’s third requirement, that a grant of federal funds must be related to the federal interest in particular national projects or programs. No less than three separate federal laws prohibit the Department of Education from being involved in public school curriculum. For instance, the General Education Provisions Act (GEPA) provides in part that: “No provision of any applicable program shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school or school system[.]” In addition, both the Department of Education Organization Act (DEOA), and the (ESEA), as amended by the No Child Left Behind Act of 2001 (NCLB), contain similar language. As a result, Common Core cannot logically be related to a legitimate federal interest, as required under Dole, because federal law explicitly prohibits federal involvement in curriculum.
Common Core, and the efforts of the federal government to foist it upon the states, runs counter to the principles of federalism that are the foundation of the U.S. Constitution. The federal government’s involvement with Common Core likely represents unconstitutional coercion of the states and violates three separate federal laws. In sum, Common Core represents an assault on federalism.
 Broadly defined, federalism is “The legal relationship and distribution of power between the national and regional governments within a federal system of government.” Black’s Law Dictionary (9th ed. 2009).
 Federalist No. 45, at 289 (James Madison) (Clinton Rossiter ed., 1961).
 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2577-78 (2012) (cited herein as Sebelius).
 “The States thus can and do perform many of the vital functions of modern government--punishing street crime, running public schools, and zoning property for development, to name but a few….Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the “police power.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2577 (2012) (cited herein as Sebelius).
 The Department’s website notes that “in the U.S., the federal role in education is limited. Because of the Tenth Amendment, most education policy is decided at the state and local levels.” U.S. Dept. of Education, Policy Overview, http://www2.ed.gov/policy/landing.jhtml.
 See e.g., Common Core State Standards Initiative, Frequently Asked Questions, http://www.corestandards.org/resources/frequently-asked-questions (cited herein as Common Core FAQ).
 The Supreme Court has explained that “State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York v. United States, 505 U.S. 144, 181 (1992) (internal quotation marks omitted).
 132 S. Ct. at 2578 (quoting Federalist No. 45 (James Madison)).
 “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X.
 Sebelius, 132 S. Ct. at 2579.
 Arlington Cent. Sch. Dist. Bd. of Educ. V. Murphy, 548 U.S. 291 (2006) ((citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) and Bd. of Educ. V. Rowley, 458 U.S. 176, 204 n. 26 (1982)).
 Id. (quoting Pennhurst, 451 U.S. at 17).
 Pennhurst, 451 U.S. at 17.
 42 U.S.C. §§ 6000, et seq.
 Id. at 25 (emphasis added).
 Id. at 206-08 (internal quotation marks omitted).
 Although no single opinion commanded a majority of the Court, seven justices—Chief Justice John Roberts, Justice Breyer, Justice Kagan, Justice Kennedy, Justice Scalia, Justice Alito, and Justice Thomas—found the forced Medicaid expansion provision unconstitutionally coercive in some respect, but differed on the appropriate remedy.
 Sebelius, 132 S. Ct. at 2602.
 North Carolina endorsed Common Core in January and again in May of 2010, submitting its RTTT application on May 27, 2010. http://www2.ed.gov/programs/racetothetop/phase2-applications/north-carolina.pdf. The final draft of Common Core was not released until June of 2010. Common Core Process, http://www.corestandards.org/resources/process. Phase One RTTT applications were due Jan. 19, 2010, while Phase Two applications (which included North Carolina’s) were due June 1, 2010. U.S. Dept. of Edu., Webinar 5, Nov. 24, 2009. http://www2.ed.gov/programs/racetothetop/webinar-understanding-the-application.pdf.
 See “Overview Information; Race to the Top Fund; Notice Inviting Applications for New Awards for Fiscal Year (FY) 2010,” Federal Register, Vol. 74, No. 221 (November 18, 2009), http://edocket.access.gpo.gov/2009/pdf/E9-27427.pdf.
 The full cost of adoption and implementation of Common Core is the subject of a subsequent paper in this series.
 Common Core State Standards Initiative, In the States, http://www.corestandards.org/in-the-states.
 U.S. Dep’t of Educ., ESEA Flexibility 7 (2011), http://www2.ed.gov/policy/elsec/guid/esea-flexibility/index.html.
 132 S. Ct. at 2606.

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Official Complaint for Patent Infringement in Civil Action No. 2:13-cv-00676: Remote Locator Systems, LLC v. T-Mobile USA, Inc. Filed in U.S. District Court for the Eastern District of Texas, no judge yet assigned. See http://news.priorsmart.com/-l8Ze for more info.
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LLC, Plaintiff, CIVIL ACTION NO. 2:13-cv-676 v. T-MOBILE USA, INC. JURY TRIAL DEMANDED Defendants.
provided, supplied, distributed, sold, and/or offered for sale products and/or systems (including at least its FamilyWhere Locator application for the iOS, Android and BlackBerry operating systems) that infringed and continue to infringe, directly and indirectly through contributory and/or induced infringement, one or more claims of the 637 patent.
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To find the specific Letex Technology Corp datasheet, search okDatasheet by part number or component description. You will be presented with a list of all matching parts with Letex datasheets. Click on any listed electronic component to see more details including any specs.
LT210 Photo DMOS-FET relay. Input continuous LED current 50 mA, input peak LED current 1000 mA, input LED reverse voltage 5 V. Output load voltage 400 V, output load current 100 mA.
LEM-23221T Surface mount chip LED lamp. Emitter color hi-eff red. Lens color water clear.
LT214 Photo DMOS-FET relay. Input continuous LED current 50 mA, input peak LED current 1000 mA, input LED reverse voltage 5 V. Output load voltage 80 V, output load current 120 mA.
LEF-C5003D Full color LED lamp. Emmitted color super red, super green, super blue.
LEM-51121T Surface mount chip LED lamp. Emmitted color yellow green. Wavelength 570 nm. Power dissipation 78 mW. Reverse vopltage 5 V.
LEM-65121T Surface mount chip LED lamp. Emitter color blue. Lens color water clear.
LT315 Photo DMOS-FET relay. Input continuous LED current 50 mA, input peak LED current 1000 mA, input LED reverse voltage 5 V. Output load voltage 60 V, output load current 400 mA.
LA314 Photocoupler. 1500 Vrms input/output isolation.
LR-2B11D Phototransistor. Collector emitter voltage 30 V. Emitter collector voltage 5 V. Power dissipation 75 mW.
LEM-51221T Surface mount chip LED lamp. Emitter color yellow green. Lens color water clear.
LT215 Photo DMOS-FET relay. Input continuous LED current 50 mA, input peak LED current 1000 mA, input LED reverse voltage 5 V. Output load voltage 60 V, output load current 400 mA.
LEM-95121D Surface mount chip LED lamp. Emitter color white. Lens color yellow diffused.
LY251 Photocoupler. Input continuous LED current 50 mA, input peak LED current 1000 mA, input LED reverse voltage 6 V. Off-state output terminal voltage 600 V, output peak repetitive surge current 1 A, output peak load current 0.6 A.
LT314 Photo DMOS-FET relay. Input continuous LED current 50 mA, input peak LED current 1000 mA, input LED reverse voltage 5 V. Output load voltage 80 V, output load current 120 mA.
LY252 Photocoupler. High repetitive peak off-state voltage 400 V min. 1500 Vrms Input/output isolation.
LR-3B12C Phototransistor. Collector-emitter voltage 30 V. Emitter-collector voltage 6 V. Collector current 20 mA. Power dissipation 100 mW.
LT316D Photo DMOS-FET relay. Input continuous LED current 50 mA, input peak LED current 1000 mA, input LED reverse voltage 5 V. Output load voltage 20 V, output load current 5 A.
Letex Technology Corp. was founded in April 2001 at WuChi Jenn, Taichung Hsien, Taiwan, to engage in the production of Photo DMOS-FET Relays, Photocouplers and other relevant products in Photo. Through its strict and scrutinize research and development over 1.5 years, Letex successfully produce good quality, high tech and tremendous output capability in order to cater for various necessaries from different clients.

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