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Climate Change In The Supreme Court: Will Winners Be Losers?
As we await the Supreme Court's hearing of the appeal in State of Connecticut, et al. v. American Electric Power Co., et al. later this month (we'll refer to it as CT v. AEP here), it is worth considering some of the problems that even a successful appeal by the defendant utilities might bring upon themselves if the Court adopts the position advocated by the Obama Administration in its brief filed for the Tennessee Valley Authority, one of the defendants in the case.
First, a little background. In 2005, seven states (led by New York) and the City of New York sued the nation's five largest electric utility companies, measured by tons of CO2 emissions and taking into account the number of tons emitted per megawatt-hour of electricity produced, for their contribution to the public nuisance that would be consequent on inevitable climate change and which would harm the plaintiffs through reduction in snow pack (a major water source in California), destruction of agriculture and state forest, loss of sovereign land area through sea level rise, increased mortality of citizens, and other harms. Public nuisance is one of the oldest common law actions, recognized for hundreds of years in the English and colonial courts, and many times by US federal courts. It is, essentially, conduct which unreasonably interferes with or harms rights held by the public at large. Sovereign entities, such as states, can sue on behalf of their citizens, or for themselves, in public nuisance without proving some special or unique harm. Private entities need to show special harm. In the CT v. AEP case, the government plaintiffs were joined by a number of environmental organizations, primarily land trusts, in a companion lawsuit that has been essentially consolidated with the governments' suit.
Early in the case, the utility defendants made a motion to dismiss the case, which had been filed in the Federal District Court in Manhattan and assigned to District Court Judge Loretta Preska. The utilities argued among other things that the court did not have jurisdiction to hear the case because any federal common law of public nuisance had been displaced by Congressional and Presidential action on climate change, and would if allowed to proceed impede the President's alleged efforts to secure global action to reduce greenhouse gas emissions. Judge Preska conducted a long hearing on the merits of these legal arguments, during which she unexpectedly asked a series of questions on whether the plaintiffs' actions would be barred by the "political question" doctrine. To their credit, the attorneys for the utilities replied that dismissal of the case would be appropriate on that basis, although they had not argued for dismissal on this ground in their legal briefs. The defendants' position was not inappropriate: the political question doctrine was, and remains, a rarely-used limitation of the power of federal courts to adjudicate interstate disputes, until now mainly arising in the context of recognition by the federal government of foreign nations and the conduct of foreign policy, and issues where the Constitution clearly gives jurisdiction to Congress or the Executive branch of government (such as training and orders given to the National Guard).
Much to the dismay of the governmental plaintiffs and environmentalists around the world, Judge Preska issued a decision dismissing the cases on exactly this basis. Climate change, she reasoned, was an issue of such enormity and complexity that it was properly within the jurisdiction of the federal government, not the federal courts. The plaintiffs' public nuisance suit touched upon "so many areas of national and international policy" that it "revealed the transcendentally legislative nature of [the] litigation."
Unsurprisingly, the state plaintiffs appealed this decision to the Second Circuit Court of Appeals. At the time, now Supreme Court Justice Sonia Sotomayor was on the Second Circuit, and was the presiding judge of the three-judge panel. Argument was vigorous and the judges (most often, Judge Sotomayor) probed both sides with trenchant questions. Argument was heard on June 7, 2006. A decision was expected soon thereafter, since the case was one of great national interest. But months and then years passed, with no decision. Then, Judge Sotomayor was appointed to the Supreme Court and, not long after, the two judges remaining on the panel that had heard the appeal, Judges Hall and McLaughlin, issued on September 21, 2009 a unanimous decision overturning the District Court's dismissal of the lawsuits and remanding the case back for further hearing on the merits. That was a momentous decision, vindicating the States' position in all respects.
Again unsurprisingly, the defendants sought leave to appeal to the US Supreme Court, which was granted. Briefing is complete and the appeal will be heard on April 19th. Because she was a member of the court that heard the appeal, Justice Sotomayor will not take part in the Supreme Court's hearing, thus leaving eight judges to decide the case. In the event of a 4-4 split, the Second Circuit's ruling would be upheld, but the decision would have no particular weight outside the Circuit. By the way, New Jersey and Wisconsin, who were originally among the plaintiff states, pulled out when the appeal made its way to the Supreme Court, doubtless reflecting changes in their administrations after the 2010 elections.
Back to the Supreme Court hearing. Much to the dismay of the environmental community, the Obama Administration filed a brief on behalf of the TVA, a federal agency, in which the Solicitor General (the nation's top litigator) argued against the states' position that the defendants' GHG emissions constituted a public nuisance. But, does the environmental community have it wrong?
A few points to note. First, the TVA had argued in the District Court and the Circuit that it was not liable to be sued, because it was acting as a government agency carrying out a discretionary function in its power generation. This was a dubious proposition at best; the TVA generates and sells electricity in exactly the same way, and at the same rates, as other generators. Yes, the TVA is set up by federal law and has some special features of governance, but it acts just like any power generator. Why should it not be held accountable for its emissions on the same basis as the others? The Solicitor General did not advance these arguments in its submission to the Supreme Court. That shows that the Administration was taking a more nuanced position with respect to the States' claims.
Second, and most important, the Administration argued that USEPA was now engaged in a rule-making (you can view the notice here) on whether to issue source performance standards for GHG emissions from new and modified power plants. That rule-making was required under a settlement agreement with a number of States in State of New York, et al. v. EPA, which had challenged the standards previously set by EPA for power plants because they did not include GHG limitations. The Administration argued that the rule-making it had undertaken (which is due to be complete by May 2012) would essentially cover the field of GHG emissions by power plants and, therefore, would displace the federal common law of public nuisance that the plaintiffs were relying on in CT v. AEP.
This argument by the Administration is cogent and requires the careful attention of the plaintiffs in the case now before the Supreme Court. That is because the plaintiffs' arguments on the federal law of public nuisance were based in good measure on two decisions of the Supreme Court in related water pollution cases both named, Illinois v. City of Milwaukee, the first decided in 1972 and the second in1981. In both cases, the State of Illinois sued the City of Milwaukee, Wisconsin, under the law of public nuisance in federal court for discharging untreated sewage into Lake Michigan. Illinois effectively won the first case and lost the second. Between the two cases, Congress had enacted the Clean Water Act, a national regulatory scheme that, said the Supreme Court, displaced the necessity for federal common law.
It is not certain that the Supreme Court will take the plaintiffs up on their proposal, but it would seem to be a way to garner a majority opinion in the absence of Justice Sotomayor, and to avoid the more daunting task of revisiting the Court's crucial 2007 decision that GHG's constitute "air pollution" under the Clean Air Act that was established in the now-famous decision in Massachusetts v. EPA.
However, this way out presents the utility industry with a real conundrum. They and their allies are working tirelessly in Congress and the courts to limit, even obliterate, EPA's authority in the area of climate change. Let's say they are successful. Then the "displacement" argument disappears and the common law of public nuisance will come back with a vengeance. That, of course, is just what industry doesn't want: a patchwork of emission reduction standards set by states over whom industry may have little influence.
But let's say industry is unsuccessful, and EPA issues a set of regulations that does, in fact, achieve the sort of limitations on GHG emissions that was, and continues to be, sought by the plaintiffs. Then we will have a national program of greater breadth than the plaintiffs in Connecticut v. AEP could have reasonably expected.
Stay tuned for what should be a very interesting argument before the Court, and a decision of enormous import in the fight to save the planet from the disastrous effects of greenhouse gas emissions.
The author was an Assistant New York Attorney General in the Environmental Protection Bureau, and was liaison counsel to the Court and opposing counsel in CT v. AEP, up to the argument in the Second Circuit. Now working for the State in a different capacity, the views and opinions stated in this piece are entirely his own, and in no way reflect any position, view or opinion of the State of New York, the Attorney General, any other State or agency, or any other institution or entity.

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D.C. Law Library - § 47–2202.02. Tax on gross receipts for transient lodgings or accommodations; food or drink for immediate consumption; spirits sold for consumption on premises; rental vehicles — Collection of tax and transfer to Washington Convention and Sports Authority.
↪ § 47–2202.02. Tax on gross receipts for transient lodgings or accommodations; food or drink for immediate consumption; spirits sold for consumption on premises; rental vehicles — Collection of tax and transfer to Washington Convention and Sports Authority.
(a) The Mayor shall collect and deposit in a lockbox maintained by the Chief Financial Officer of the District of Columbia the tax imposed pursuant to § 47-2202.01 as agent on behalf of the Washington Convention and Sports Authority (“Authority”) and shall transfer the revenue from the tax upon receipt to the Washington Convention Center Fund established pursuant to § 10-1202.08.
(b) The Mayor may develop and apply a fixed formula to the taxes imposed pursuant to §§ 47-2202 and 47-2202.01 to determine the amount that shall be transferred to the Authority.
This section is referenced in § 10-1203.05 and § 10-1203.07.
D.C. Law 18-111, in the section heading, substituted “Washington Convention and Sports Authority” for “Washington Convention Center Authority”; and, in subsec. (a), substituted “Washington Convention and Sports Authority (‘Authority’)” for “Washington Convention Center Authority” and substituted “Washington Convention Center Fund” for “Washington Convention Center Authority Fund”.
For temporary (90 day) amendment of section, see § 2082(o)(3)(B) of Fiscal Year 2010 Budget Support Second Emergency Act of 2009 (D.C. Act 18-207, October 15, 2009, 56 DCR 8234).
For temporary (90 day) amendment of section, see § 2082(o)(3)(B) of Fiscal Year Budget Support Congressional Review Emergency Amendment Act of 2009 (D.C. Act 18-260, January 4, 2010, 57 DCR 345).
Expiration of §§ 301, 302 and 303 of D.C. Law 10-188: See Historical and Statutory Notes following § 47-2202.01.
Expiration of §§ 301, 302, and 303 of D.C. Law 10-188: Section 2(l)(1) of D.C. Law 12-142 provided that § 306(a) of D.C. Law 10-188, providing for the expiration of that act, is repealed. Section 2(l)(2) of D.C. Law 12-142 provided that the subsection shall apply as of February 27, 1997.


§ 89-2 Violations and penalties.
§ 89-3 Unlawful to tamper with public property.
§ 89-4 Unlawful to interfere with stakes and monuments.
§ 89-5 Unlawful to take material from street, alley or public grounds.
§ 89-6 Unlawful to tamper with warning lamps, signs or barricades.
§ 89-7 Certain activities not prohibited.
§ 89-8 Violations and penalties.
Curfew — See Ch. 99.
Firearms and weapons — See Ch. 106.
Open fires and outdoor burning — See Ch. 111.
Ball playing, including the throwing, kicking or knocking of any ball, and the throwing of any stone or other missile of any kind upon or onto any public street, alley or sidewalk in the Borough of Denver is hereby prohibited.
Any person who shall violate any provision of this article shall, upon conviction thereof, be sentenced to pay a fine not exceeding $600 and costs and, in default of payment thereof, shall be subject to imprisonment for a term not to exceed 30 days. Upon summary conviction, the person found guilty may be assessed reasonable attorneys’ fees incurred by the Borough in the enforcement proceedings in accordance with Section 3321(6) of the Borough Code.
No person or persons shall destroy or injure in any way whatsoever, or tamper with or deface any public property of the Borough of Denver, or any grass, walk, lamp, ornamental work, building, streetlight, fire hydrant or water or gas stop box or any other structure or fixture on any of the streets, alleys, sidewalks or public grounds in the Borough of Denver.
No person or persons shall take any earth, stone, or other material from any of the streets, alleys or public grounds in the Borough.
No person or persons shall willfully or maliciously destroy or remove or deface or obliterate or cover up any lamp, warning sign or barricade erected by the authorities of the Borough or by any person doing work by permission of the authorities of the Borough on any of the streets, alleys, sidewalks or public grounds in the Borough.
This article shall not apply to normal activities in connection with the construction, maintenance and repair of streets, alleys, sidewalks and public grounds and the structures and fixtures located thereon, or to incidental results of work thereon or therein under permit from or by authority of the Borough.
Any person who shall violate any provision of this article shall, upon conviction thereof, be sentenced to pay a fine not exceeding $600 and costs and, in default of payment thereof, shall be subject to imprisonment for a term not to exceed 30 days. Each day that a violation of this article continues shall constitute a separate offense. Upon summary conviction, the person found guilty may be assessed reasonable attorneys’ fees incurred by the Borough in the enforcement proceedings in accordance with Section 3321(6) of the Borough Code.
The fact that a violator has been penalized, after hearing, as herein provided, shall not preclude the Borough or other injured party from taking proper legal action to recover damages resulting from such violation.


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This chapter discusses the current knowledge concerning the cytosolic pattern recognition receptors (PRRs), the responses they trigger, their physiological role during infection, and their regulation. It describes the diseases associated with mutations in several of these PRRs or associated proteins. Viruses can be detected through recognition of their nucleic acids either extracellularly or in the endosomes by Toll-like receptors (TLRs). The host cell signaling pathways that lead to caspase-1 activation in macrophages infected with three bacterial pathogens that replicate in the host cell cytosol-the gram-positive bacterium L. monocytogenes and the gram-negative bacteria S. flexneri and F. tularensis-have been studied so far. The various responses triggered after engagement of cytosolic PRRs are critical to fight infections, but some pathogens have virulence factors that block the innate immune signaling. The chapter reviews some recent examples of positive and negative regulation of cytosolic PRR signaling. It is likely that as we gain more insight into the different intracellular signaling pathways, we will find that many pathogens have evolved mechanisms to modulate and evade these pathways. While these pathways are highly regulated, some PRR mutations lead to a number of autoinflammatory diseases. A better understanding of the role of these PRRs during the normal innate immune response to intracellular pathogens is likely to give us a better understanding of the autoinflammatory diseases and will lead to the development of new therapeutics.
Nonself nucleic acids within the host cytosol trigger type I IFN secretion. Viruses, and possibly intracellular bacteria, release nonself nucleic acids into the host cytosol that are recognized by the PRRs RIG-I, MDA-5, and DAI. PRRs signal through the adaptor MAVS, the E3-ubiquitin ligase TRAF3, and the kinases TBK-1 and IKKi, leading to phosphorylation of the transcription factor IRF3. Phosphorylated IRF3 dimerizes and translocates into the nucleus, where it binds ISREs and induces transcription of numerous genes including ifn-β.
Bacterial cell wall fragments within the host cytosol trigger MAPK and NF-κB activation. Peptidoglycan fragments from various intracellular and extracellular bacteria can be delivered into the host cytosol, where they are recognized by the PRRs NOD1 or NOD2. The PRRs signal through the adaptor RIP2. RIP2 engagement leads to IκB phosphorylation in a NEMO- and TAK1-dependent manner resulting in its degradation and the translocation of NF-κB into the nucleus. Nuclear NF-κB induces the transcription of numerous proinflammatory genes including IL-8. NOD1/2 engagement also leads to MAP kinase activation through RIP2 and the tripartite complex CARD9-Bcl10-Malt1.
Flagellin and other unknown bacterial molecules trigger caspase-1 activation within various inflammasomes. The LRRs of the PRRs are the proposed ligand binding domains. Upon binding, a modification of conformation releases the accessibility of the NBD, allowing the PRR to interact through homotypic interactions with other partners including the adaptor ASC. ASC can oligomerize and interact both with the PRRs containing a pyrin domain and procaspase-1, leading to the formation of a multimolecular complex called the inflammasome. Dimerization of procaspase-1 within the inflammasome leads to its autocatalytic activation. Mature caspase-1 consists of a heterotetramer possessing a cysteine protease activity responsible for maturation of proinflammatory cytokines and triggering cell death of the host cell. The nature of the IPAF inflammasomes and the protein responsible for direct binding of flagellin are still unknown; three possible models are presented.
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JOSEPH J. JAMROG vs. H. L. HANDY COMPANY.
In an action of contract by the buyer against the seller of goods, which the plaintiff had accepted, for breach of warranty of fitness thereof for the use to be made of them, the burden is on the plaintiff to prove that, in accordance with the requirements of G. L. (Ter. Ed.) c. 106, s. 38, he gave a sufficient notice of the breach to the defendant within a reasonable time after he knew or ought to have known of the breach.
While the notice required under the statute above named must refer to particular sales, must fairly advise the seller of the alleged defect, and must specify with reasonable particularity in what the breach consists, it need not necessarily take the form of an express claim for damages or threat of such, but is sufficient if the fact, that the buyer is asserting a violation of his legal rights, reasonably may be inferred therefrom.
(2) A finding was warranted that it was within the scope of the employment of the defendant's salesman to receive notice of the breach of warranty of fitness.
CONTRACT. Writ dated March 24, 1932.
In the Superior Court, the action was tried before T. J. Hammond, J. Material evidence and rulings by the trial judge are described in the opinion. There was a verdict for the plaintiff in the sum of $3,890. The defendant alleged exceptions.
F. P. Garland, (K. H. Hemenway with him,) for the defendant.
G. L. Burke, for the plaintiff.
CROSBY, J. This is an action of contract in which the plaintiff seeks to recover damages for an alleged breach of warranty in the sale of turkeys to him.
Zytkiewicz if he could get good, sound turkeys for Mrs. Hawkins's Sunday dinner, and the reply was, "Yes, I can get you good turkeys . . . I can get you good and I guarantee they be good, sound turkeys." The plaintiff further testified that, on the Monday following the Saturday he delivered the turkeys, Mrs. Hawkins told him the turkeys poisoned the people who ate them. A letter dated May 6, 1930, written by the plaintiff's attorney to the defendant notifying it that this plaintiff was sued by Mrs. Hawkins on the ground that poisonous turkeys had been sold her and that the H. L. Handy Company would be charged with any expenses and costs the plaintiff was put to resulting from that suit was offered in evidence. The files in the clerk's office of the Superior Court for Hampshire County were in evidence showing that in an action of Mrs. Hawkins against the present plaintiff execution had issued for $2,639.74. See Hawkins v. Jamrog, 277 Mass. 540. It is agreed by the parties that if the plaintiff is entitled to recover the damages should be $3,890. At the close of the plaintiff's case the defendant rested and presented a motion for a directed verdict in its favor, which was denied subject to the defendant's exception. The defendant on being asked to specify the grounds entitling it to a directed verdict stated (1) that no notice was given as required by G. L. (Ter. Ed.) c. 106, s. 38, and (2) that the plaintiff knew or ought to have known whether the turkeys were unsound or bad. The case was submitted to the jury under full and appropriate instructions, and a verdict was returned for the plaintiff in the agreed amount.
breach, the seller shall not be liable therefor." The plaintiff contends that the sufficiency of notice is not open to the defendant on the pleadings and that it is an affirmative defence which must be pleaded. This contention is unsound. The burden of proof was not upon the defendant; it rested on the plaintiff. In Idzykowski v. Jordan Marsh Co. 279 Mass. 163, the plaintiff sued for a breach of warranty of fitness in the sale of a shoe cleaning fluid. It was said in that case, at page 167, that the verdict was rightly entered for the defendant "because the plaintiff failed to prove that she gave proper and sufficient notice of the breach of warranty within a reasonable time after she knew or ought to have known of such breach." Although in that case the defendant did plead in defence lack of proper notice of the breach, yet it was held that the burden was on the plaintiff to prove that proper notice was given. The case at bar cannot be reconciled with the theory that failure to give proper notice was a waiver of the breach, which would have to be both pleaded and proved by the defendant. It follows that the defence of insufficiency of notice was open to the defendant under a general denial.
to have given the defendant reasonable notice that they were not fit for consumption. It could have been found as a reasonable inference that the plaintiff was asserting a violation of his legal rights and was not engaging in merely trivial conversation with the defendant's salesman when persons had been poisoned by eating unwholesome turkeys which had been sold to the plaintiff by the defendant. Although the plaintiff did not assert that the turkeys were bad and unfit for human consumption, but merely recited the complaint of Mrs. Hawkins, the reasonable inference to be drawn was that if the plaintiff should be subject to liability to Mrs. Hawkins he would hold the defendant liable to him. As the plaintiff could not have had personal knowledge that the turkeys were off condition all he could do was to impart to the defendant the complaint he had received. The case of Idzykowski v. Jordan Marsh Co. is plainly distinguishable in its facts from the case at bar. In that case the plaintiff asserted no violation of her legal rights, but her sister merely told the defendant's salesgirl "about the cleanser, how it injured . . . [the plaintiff's] hands, so other people would be careful, could be careful . . . ." In the case at bar the notice was unqualified, and if it had any purpose whatever, it must have been to assert the violation of legal rights which in the future might result in a claim against the plaintiff for damages. Although the notice was in the form of a complaint it could be found to have been sufficient. A complaint might have been found a sufficient notice of breach of warranty. Nashua River Paper Co. v. Lindsay, 242 Mass. 206, 210; S. C. 249 Mass. 365, 370, 372.
s. 1803. Generally notice to an agent, while acting for his principal, of facts affecting the character of the transaction is constructive notice to the principal. Allen v. South Boston Railroad, 150 Mass. 200, 206. In the present case the defendant's salesman was in the plaintiff's store on the business of his employer and had negotiated the sale of the turkeys, and it may be inferred that it was a part of his duty as salesman to satisfy the customers of his employer. Those who bought goods from the defendant through its salesman might reasonably infer that complaints respecting such goods might properly be made to him. The case is distinguishable from Clark v. Murphy, 164 Mass. 490, and similar cases, where it is held that an agent who merely solicits orders has no implied authority to receive payment for the goods.

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EXCLUSIVE: Jenny Holzer discusses her difficult relationship to writing during the installation of the exhibition PROTECT PROTECT at the Museum of Contemporary Art, Chicago. Featured works include Red Yellow Looming (2004), Lustmord (2007), Protect Protect deep purple (2007), and For Chicago (2008), among others. The exhibition remains on view in Chicago through February 1st, and will travel to the Whitney Museum of American Art, New York in March.
ART21: Do you think all art is political? Do you think artists today have the power to effect political change?
ELIZABETH SMITH: Jenny Holzer’s work, of course, is very political, although she does not want to be defined as a political artist.
I’m particularly interested in this whole notion of how you define political art today. How does it differ from earlier incarnations? What is the most effective way to create art that has a political message? Jenny has talked about how she likes her art to be socially useful, which I think is a very interesting and appropriate way to talk about the idea of political and social engagement in art.
ART21: Of all the shows you must be planning, how did you know this was the time to do a show with Jenny Holzer? Was it intentional on your part to have this show on view in time for the 2008 presidential election and inauguration?
SMITH: That’s a great question. Jenny is someone whose work I’ve known for a long time and someone I think that many of us have been familiar with for a while. And I have to say…I wasn’t thinking a lot about Jenny’s work during the past few years. But it all changed for me when I saw a show of her silkscreens at Cheim & Reid in New York. I was really struck by the fact that she was moving in this direction and that she was engaging with political material that she, herself, did not write, but had selected from these very interesting sources.
At the same time, we also have some work in the MCA Chicago’s permanent collection by Jenny Holzer…some early pieces that are fairly regularly placed on public view. I had begun to notice how visitors to the museum were really riveted by her small LED pieces. I, myself, would stand there and read the messages and take them in and think about them. They seemed newly fresh and relevant to me. And I noticed that that was also the effect they seemed to have on a number of our visitors to the museum. So it just felt right. I just really trusted my tuition that this would be an important moment to work with Jenny, even though I had never met her.
Jenny and I have been working together and talking about the show for about two years now. When we first began to discuss it, we weren’t quite sure how long it would take for her to develop her ideas into an exhibition. But as the content became clearer and the project that she wanted to develop became more defined, we knew it was going to focus on the recent work and have a more politically engaged slant.
As far as the people who were running for office in the 2008 elections…that was, of course, totally unknown and unforeseen. But we’re glad that Chicago turned out to be the seat of a lot of excitement related to current events. It wasn’t exactly intentional to have the show PROTECT PROTECT (2008-09) on view at this time, but we were very fortunate that Jenny was able to work with us to develop a show that could be presented at this historical moment and when we had an open slot on our schedule.
ART21: In one gallery you’ve paired an LED work with a table of bones — how did that striking juxtaposition come about?
SMITH: It was really Jenny’s choice to put those two pieces — Lustmord (1993-94) and Red Yellow Looming (2004) — in the same room. And now that I’ve seen how they’re installed and presented, and how they work together, I think it’s a very interesting choice. One is a cool, technological, large-scale element. The other sculptures are much more intimate, closer in scale to the human body, and are much more visceral.
She chose to include the bone tables from Lustmord because they had to do so profoundly with the experience of war. It was really the first body of writing accompanied by physical objects that dealt really directly with the horror of war and with the bodily trauma experienced people — primarily women — who were the victims of incredible violence during the Bosnian War in the former Yugoslavia.
So in this pairing we’re looking at the period in the early 1990s — Lustmord — and the years of the first Gulf War in Iraq — Red Yellow Looming — and I think that she felt that including these two works give the overall exhibition something of a historical background. These two works don’t focus just on the present moment; rather, they provide some history over a decade or period of fifteen years.
Jenny’s work is very timely and topical, but she also wants to be making a universal statement about war. So I think it’s rather important that she’s chosen to include pieces that make reference to wars in recent memory and not to just focus on the present moment.
ART21: Could you say a little bit about the newest work, For Chicago (2008). Is it a site specific piece?
SMITH: For Chicago is a newly created piece that the museum commissioned for our collection. It came about, in part, because I was first talking with Jenny about the idea of doing a retrospective. And she fairly quickly convinced me that that really wasn’t the right way to go, because so much of her earlier work involved the presence of texts in public space. So much of it was work that you couldn’t recreate in a conventional museum/exhibition format. Instead, what we agreed on was to present a retrospective of all of her writings. So her texts from 1977 through 2001 — when she stopped writing her own material — are all programmed into the piece For Chicago.
It’s a really significant work from that standpoint, because it presents so much information, so much material. It’s an LED sculpture, but it’s monumental in scale and it can be configured in different ways. We’re representing it on the floor of the gallery in the exhibition PROTECT PROTECT, but it can be positioned on the wall. It could be configured as one long line, going around a huge space. Some people might choose to put it on the ceiling. It has a lot of flexibility as a form, but it also has this amazing content that covers the entire early part of her career.
ART21: We filmed one of Holzer’s first exhibitions of paintings back in 2006 for the Art in the Twenty-First Century television series on PBS. How do these new works fit in with the series and with this exhibition?
SMITH: In the exhibition, Jenny’s presenting a series of paintings based on a PowerPoint presentation that was given by the Pentagon to the White House, prior to the invasion of Iraq in 2003. The PowerPoint shows a group of maps of Iraq that are emblazoned with various phrases that make evident the Pentagon’s strategies.
One of the pieces has the words ‘Protect, Protect, Protect’ in three different zones (which inspired the title for the exhibition). And then it also contains language like ‘Seize,’ ‘Exploit,’ ‘Shock & Awe.’ It really makes you realize the agenda that was being set in place. And once you realize what you’re looking at — a PowerPoint proposal for what to do — it’s quite extraordinary.
It’s incredibly important information that she’s presenting to us. And although we all have access to these primary documents that Jenny has gathered from the website of the National Security Archive, the way that she presents it underscores the message so powerfully. She blows the documents up to a very large scale, and so they’re quite monumental. And then she’s colored each one of them differently. They’re all in hues of purple or grayish-green. Her idea was to make reference to the color of deep bruises on human flesh. A very powerful suggestion comes forth from those colors. At the same time the colors have a beauty, a kind of lyrical quality.
They’re alternately seductive and repulsive, and act on you in a profoundly physical way. It’s a great example in her work, I think, of how so much of her work is based on the act of reading. The forms in which she communicates the information are really meaningful in how we interpret it, how we take it in, and how it makes us feel. And I think that element of feeling and emotion is important to consider in Jenny Holzer’s work.
PHOTOS | Jenny Holzer (from top to bottom) Red Yellow Looming, 2004. Kunsthaus Bregenz, Bregenz, Austria. Text: U.S. government documents. Lent by Cari and Michael J. Sacks. Photo: Attilio Maranzano; Lustmord, 2007. Text: Lustmord, 1993-95. Photo: Christopher Burke; For Chicago, 2008. Photo: Lili Holzer-Glier; and Protect Protect deep purple, detail, 2007. Text: U.S. government document. Photo: Christopher Burke. All works © 2008 Jenny Holzer, member Artists Rights Society (ARS), NY.
I’m intrigued by this mention of affect– the generation of emotion– at the end of the interview. Holzer’s work is indeed to be “read”– but through affect each viewer may respond differently from the next, and thus the message may alter. This, for me, hints at a more subjective dimension within the larger banner of “political art” that is usually applied to Holzer.
We arrived quickly at the old notion, one often shared and repeated over and over again by artists that I work with here at Art21, that one way to approach the practice of making art is of having something to say (concept), having the tools to say it (form), and having the common sense to know that just because you have both of those things doesn’t mean that people will understand you (audience), or that the places in which your work is received are somehow pure from interference or hospitable to what you intend (context). It’s never as simple as just telling a student “art is about communication.” It’s succinct enough, but it leaves out the messy bits.
I think something similar could be said for political art or art that engages political content, like Jenny Holzer’s. We want it to be simple in the way “art is about communication” is simple. But one reason it’s easily distinguishable from agitprop or propaganda is that it’s actively interested in subjectivity — of the artist, of the audience, of society in general. In particular, I think Holzer has an incredibly complex notion of what constitutes a message, and I often have the impression that her texts (the ones she wrote) are a way of testing our language (truths, half-truths, half-lies) and inviting us to try it on for size. And if inviting us to re-imagine the way we speak and the words through which we think isn’t political, I’m not sure what is.


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In this paper we demonstrate the terahertz propagation in hollow core fiber with negative curvature core, manufactured through rapid prototyping technique using low cost 3D printer. The fiber was numerically and experimentally characterized using finite element software and a terahertz time domain spectrometer (THz-TDS). The results indicate that the fiber guides at least until 1.1 THz, covering spectral range with extremely high loss materials. The guidance is supported by antiresonant effect. The fiber was printed with low resolution 3D printer leading to hollow-core structure with several surface modes.
Hollow core fiber, Terahertz, microstructured fiber, 3D printer.
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for the Western District of Wisconsin.
No. 97-CR-68-S--John C. Shabaz, Chief Judge.
Before HARLINGTON WOOD, JR., CUDAHY and EASTERBROOK, Circuit Judges.
HARLINGTON WOOD, JR., Circuit Judge. Lavelle Span was convicted after a jury trial of two counts of distributing crack cocaine in violation of 21 U.S.C. sec. 841(a)(1) and one count of conspiracy to distribute crack cocaine in violation of 21 U.S.C. sec. 846. At sentencing, the district court determined that Span's relevant conduct involved more than 50 grams of crack cocaine and sentenced him to 372 months in prison. On appeal, Span argues that the district court erred by failing to adequately instruct the jury on the distinction between a drug conspiracy and a mere buyer-seller relationship; by declining to answer a question posed by the jury during deliberations; by limiting the scope of the defendant's cross-examination of a prosecution witness; and by miscalculating the amount of crack involved for sentencing purposes.
Count 1 of the indictment charged Span with a conspiracy to distribute cocaine base, also known as crack cocaine, in violation of 21 U.S.C. sec. 846. At trial, the government presented testimony from Andrew Seeman and Michael Hudy, among others, to support the conspiracy charge. Seeman testified that he purchased crack from Span for resale three to five times a week. Seeman stated that he and Span had an agreement under which Span would give Seeman a free half gram of crack after Seeman had sold a certain amount. Seeman testified that he purchased crack from Span on at least thirty-two occasions between March 1995 and Span's arrest on June 3, 1995, and that these purchases ranged in size from .5 gram to 3.5 grams. Seeman stated that he could accurately testify that he purchased at least 3.5 grams of crack a week from Span. Michael Hudy testified that he purchased crack almost daily during March, April, and May 1995. Hudy testified that he purchased crack exclusively from Span for a couple of months during that period and that his purchases ranged from $200 to $300 worth of crack a day.
Span also was charged with two substantive drug offenses. Count 2 of the indictment charged Span with distribution of cocaine base on March 9, 1995. This charge was based on a controlled drug buy between Span and a paid police informant, Keith Solberg. At Span's trial, Solberg testified that he paged Span on March 9 to set up the buy and told Span that he wanted to buy .25 ounce, or 7 grams, of crack. Solberg said that Span agreed to meet him at Wiggly Field, a local tavern. A law enforcement agent searched Solberg before his meeting with Span and provided him with $600 in cash. Another agent drove Solberg to Wiggly Field and watched as Solberg entered the bar. Solberg testified that inside the bar he met with Span who gave him 5 grams of crack and 2 grams of powdered cocaine in exchange for $500. Solberg returned to the car where the agent was waiting and gave her $100 and the drugs.
Count 3 charged Span with distribution of cocaine base on June 3, 1995. This charge resulted from a controlled drug transaction in which an informant, Jerry Sanders, bought crack cocaine from Span. Sanders was acting in cooperation with law enforcement officials and testified as a government witness at Span's trial. Sanders testified that he contacted Span on June 3 and set up a buy. Accompanied by law enforcement officials, Sanders went to a bank parking lot to meet Span. Sanders testified that he asked Span for a $40 rock of crack and that Span told him he only had one left. Sanders stated that he gave Span $40 in exchange for the crack cocaine.
Two police officers monitored the June 3 controlled buy. Detective Pitt drove Sanders to the meeting with Span and provided Sanders with $100 in prerecorded currency. Pitt testified that he strip-searched Sanders before the transaction and maintained visual contact with Sanders from the time of the strip-search until Sanders returned to Pitt's car with the crack cocaine following the transaction. Pitt further testified that Sanders wore a body wire during the transaction which allowed Pitt to monitor the conversation between Sanders and Span. Pitt testified that Sanders told Span that he wanted to buy a $40 rock of crack and that Span replied that he was almost out. Pitt stated that Span explained to Sanders that he had been paying $600 an ounce for crack but that recently he had to pay $1,200 an ounce.
Captain Kujawa also monitored the transaction. He testified that he watched Sanders walk up to Span's car and participate in a conversation. Kujawa testified that he was only able to hear part of the conversation from the body wire transmission. Kujawa observed Sanders walk away from Span's car, and then, after receiving confirmation from Detective Pitt that a drug transaction had occurred, Kujawa stopped Span and placed him under arrest. Kujawa searched Span and discovered $40 of the prerecorded currency. Kujawa did not find any drugs, baggies, or drug residue when he searched Span.
The jury convicted Span on all three counts. At sentencing, the court determined that the amount of cocaine base attributable to Span was 66.8 grams. To reach this figure, the court attributed 30 grams to Span's dealings with Hudy based on the fact that Hudy paid from $200 to $300 a day for crack, that a gram of crack cost approximately $200, and that Hudy testified that he dealt exclusively with Span for at least a month. The court further determined that Seeman purchased crack from Span at least ten times at 3.5 grams a purchase, adding 35 grams. The court then added 1.8 grams for the Solberg deal charged in Count 2.1 The court sentenced Span to 372 months imprisonment on the conspiracy charge and to 240 months imprisonment for each of the substantive counts, to be served concurrently. The court ordered that these sentences be served consecutively to Span's sentence upon the revocation of his probation in state court. Span filed this timely appeal.
A conspiracy is an agreement between two or more persons to accomplish an unlawful purpose . . . the government must prove the existence of an agreement. . . . The existence of a mere buyer/seller relationship without more is not sufficient to establish the defendant's guilt of the charged conspiracy. The government must prove that the defendant knowingly and intentionally joined the charged conspiracy knowing the conspiracy's aim and intending to achieve it.
An agreement between a buyer and a seller of illegal drugs, in which the buyer merely agrees to buy the drugs from the seller and the seller merely agrees to sell the drugs to the buyer, does not constitute a conspiracy between them no matter what the buyer intended to do with the drugs after buying them.
Span argues that the jury instructions given in his case created an irreconcilable conflict and allowed the jury to convict him for conspiracy based only on evidence of a buyer-seller relationship. On appeal, we must view the jury instructions as a whole to determine whether they represent accurate statements of the law and are supported by the record. United States v. Lloyd, 71 F.3d 1256, 1266 (7th Cir. 1995) (citing Doe v. Johnson, 52 F.3d 1448, 1456 (7th Cir. 1995)). If so, we will not disturb them. Id. "'Reversal is warranted only if the instruction misguides the jury so much that the litigant is prejudiced.'" Id. (quoting Maltby v. Winston, 36 F.3d 548, 560 (7th Cir. 1994)).
Span contends that the court's jury instructions differed little from the instructions found to be in error in United States v. Mims, 92 F.3d 461 (7th Cir. 1997). However, unlike the instructions in Mims, the instructions given in the present case emphasized the necessity of finding a conspiratorial agreement. Furthermore, the buyerseller instruction in the present case was an accurate statement of the law in this circuit. The jury was informed that the existence of a mere buyer-seller relationship without more was insufficient to establish guilt with respect to the conspiracy charge. The instructions as a whole made clear that in order to convict, the jury must find that Span knew of the charged conspiracy and that he acted with the intent to further its aims. See United States v. Fagan, 35 F.3d 1203, 1207 (7th Cir. 1994). The court's statement, that a buyer-seller relationship without more is insufficient to establish a conspiracy, is not in conflict with this. The district court's jury instructions represented accurate statements of the law and could not have misguided the jury. Span's claim fails.
Span contends that the district court erred in its response to a question posed by the jury during deliberations. During deliberations, the jury sent a note to the judge which read, "Your Honor, are we able to draw from the whole proceedings to focus on a particular count, that is Count 2, taking into account the rest of the proceedings to formulate a verdict?" In response, the judge provided the jury with a written copy of the original jury instructions.2 Over defense counsel's objection, the district court refused to reinstruct the jury or to provide them with supplemental instructions. We review this decision for abuse of discretion. Akrabawi v. Carnes Co., 152 F.3d 688, 695 (7th Cir. 1998).
Each count of the indictment charges the defendant with having committed a separate offense. Each count and the evidence relating to it should be considered separately and a separate verdict should be returned as to each count. Your verdict of guilty or not guilty of an offense charged in one count should not control your decision as to any other count.
This statement presents an accurate statement of the law. Span argues that the court failed to answer the jury's question with complete accuracy because it did not advise the jury to read the instructions or direct the jury to consider a specific section in the instructions. Clearly, by providing the jury with a copy of the written instructions, the judge directed the jury's attention to the instructions. These instructions clearly and correctly state the applicable law. It was not necessary for the district judge to direct the jury to specific sections of the instructions, and, therefore, the district court did not abuse its discretion in refusing to supplement or reiterate the jury instructions.
Span contends that the district court erred by restricting the scope of his cross-examination of prosecution witness Jerry Sanders. At the time of his June 3, 1995 controlled purchase of drugs from Span, Sanders had been charged in Wisconsin state court with first degree sexual assault of a child, a felony. Sometime after June 1995, the first degree sexual assault charge against Sanders was dismissed, and he pled guilty to fourth degree sexual assault, a misdemeanor. Prior to Sanders' trial testimony, Span advised the court of his desire to cross-examine Sanders regarding the reduction in the sexual assault charge in an attempt to demonstrate that Sanders had a motive to set up Span. The district judge allowed Span to ask Sanders whether, at the time of the controlled drug buy, there was a felony charge pending against him and whether that charge was reduced to a misdemeanor as a result of his cooperation with the authorities. The judge denied Span's request to elicit testimony that Sanders' pending felony charge was for first degree sexual assault of a child.
Span argues that the district court erred in refusing to allow him to elicit the nature of Sanders' pending felony charge. Criminal defendants have a Sixth Amendment right to crossexamine witnesses. United States v. Hernandez, 84 F.3d 931, 933 (7th Cir. 1996) (citing Ohio v. Roberts, 448 U.S. 56, 62-64 (1980)). The district court, however, retains broad discretion to impose reasonable limits on the extent and scope of cross-examination. Id. When limiting the extent or scope of cross-examination, a district court "violates the Sixth Amendment only where it has so abused its discretion as to prevent the jury from making a discriminating appraisal of the witness' testimony." United States v. Valles, 41 F.3d 355, 359 (7th Cir. 1994) (citing United States v. Wellman, 830 F.2d 1453, 1465 (7th Cir. 1987)).
Span contends that telling the jury that Sanders' charge had been reduced from a felony to a misdemeanor did not give the jury any real sense of the magnitude of the benefit Sanders had received or the corresponding extent of Sanders' alleged bias. Span asserts that "[h]ad the jury known that Sanders was charged with first degree sexual assault of a child, . . . the jury would have understood that Sanders was in serious trouble when he decided to cooperate with police." Span further asserts that "[t]he jury would not have any difficulty understanding that someone convicted of first degree sexual assault of a child is likely to spend a good part of his life in prison."3 The mere exclusion of the name of the felony charge that was pending against Sanders did not prevent the jury from making a discriminating appraisal of his testimony. The jury was informed that at the time he decided to cooperate with police, Sanders had a pending felony charge and that later that charge was reduced to a misdemeanor. Span was able to introduce evidence of Sanders' basic reason for bias. The district court did not abuse its discretion in excluding the nature of Sanders' pending felony charge.
Furthermore, even if the district court erred in excluding the name of Sanders' pending felony charge, the error would be harmless. Two police officers testified extensively regarding their monitoring of the transaction between Span and Sanders. One of the officers testified that, through Sanders' body wire, he was able to hear the two men conducting the drug purchase. Given this overwhelming evidence against Span on Count 3, excluding the nature of Sanders' pending felony charge "could not have had a substantial influence over the jury." United States v. Graffia, 120 F.3d 706, 713 (7th Cir. 1997).
Finally, Span argues that the district court's sentencing calculation was based on unreliable and contradictory evidence and, therefore, lacked an adequate evidentiary basis. The district court's drug quantity calculation is a factual finding which we review for clear error. United States v. Burns, 128 F.3d 553, 554 (7th Cir. 1997). We must affirm "unless on the entire evidence [we are] left with the definite and firm conviction that a mistake has been committed." United States v. Beler, 20 F.3d 1428, 1431 (7th Cir. 1994) (quotations and citations omitted). Clear error exists if the district court's sentencing calculation rests on an inadequate evidentiary basis. United States v. Acosta, 85 F.3d 275, 283 (7th Cir. 1996).
In the present case, the district court's drug quantity calculation was based primarily on Span's drug transactions with Seeman and Hudy. The district judge correctly noted that discrepancies existed both within these witnesses' trial testimonies and between the trial testimony and initial statements the men made to law enforcement officials. When a district court "clearly relies upon one of two contradictory statements offered by a single witness, it should directly address the contradiction and explain why it credits one statement rather than the other." Acosta, 85 F.3d at 282 (citation and quotation omitted).
In the present case, the district judge offered an extensive explanation for his interpretation of Hudy's testimony. However, when analyzing Span's transactions with Seeman, the district court concluded that Seeman purchased crack from Span "ten times at 3 to 3.5 grams a piece or 35 grams." This conclusion is not supported by the evidence. At trial, Seeman testified that he purchased crack from Span four times a week from mid-March 1995 until Span's arrest on June 3, 1995 and that he made a total of at least thirtytwo purchases. This testimony was in contradiction to Seeman's earlier statements to law enforcement officials that he made ten or more purchases. The district court, erring on the side of caution, calculated Span's drug sales to Seeman based on a "floor" of ten purchases. The district judge then found that each of these purchases consisted of 3.5 grams of crack, based on a statement that the district judge believed Seeman to have made that "at least it was an 8 ball [3.5 grams] that [he] bought each time." However, an examination of the record shows that Span testified that he bought at least 3.5 grams of crack a week, not each time. Span clearly testified that his individual purchases ranged in size from .5 gram to 3.5 grams, a factor not addressed by the district court at sentencing. In the absence of an explanation or other evidence justifying the judge's choice of the 3.5 gram amount, we conclude that the district judge's calculation lacks an adequate evidentiary basis. See Acosta, 85 F.3d at 283. Therefore, we must remand the case to the district court for resentencing.
Span's convictions are AFFIRMED. His sentence, however, is VACATED, and the case is REMANDED to the district court for resentencing.
1 The district court did not explain how it arrived at the 1.8 gram figure for Solberg's purchase. Solberg testified at trial that he purchased 5 grams of crack from Span on March 9, 1995.
2 Chief Judge Shabaz generally does not provide written instructions unless the jury asks for them.
3 Initially, in his brief on appeal, Span argued that Sanders' bias could be inferred from the fact that first degree sexual assault carries with it a maximum sentence of forty years while the misdemeanor sexual assault has a potential sentence of only nine months. However, Span never attempted to introduce evidence of the potential sentences for the two offenses in the district court, and the district court did not make a ruling on the issue. Therefore, we limit our analysis to the district court's decision to exclude the nature of Sanders' pending felony charge.

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