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Author: William McGeveran

5

When the Law Forces You to Sue

Red Cross.jpgI chuckled when I saw the headline on this AP story in my local St. Paul newspaper last week: Red Cross Sued for Using Red Cross. It’s often pretty easy to make trademark law look silly. (I know because I’ve spent all summer writing an article about it — coming soon to an articles editor in-box near you!). But that headline pretty much sums up the story: Johnson & Johnson has sued the American Red Cross (ARC) over the relief organization’s efforts to license the use of its red plus-sign image on medical products (like this one) that it endorses. J&J claims that it owns exclusive trademark rights to the red cross image when used on such items, and the nonprofit Red Cross can use it only to identify its core good works.

So why is Johnson & Johnson pursuing a lawsuit that gets the company lampooned in the press? And makes it look like a heartless miser? And gets it threatened with boycott? And to top it off, triggers a reaction from their opponent that stokes all those sentiments? Indeed, ARC president Mark Everson even delivered an implicit threat (via a New York Times story) to use its substantial political heft to ask Congress for special preemptive legislation (an entirely plausible scenario, though I wonder if J&J would have a takings claim):

The Red Cross products that J.& J. wants to take away from consumers and have destroyed are those that help Americans get prepared for life’s emergencies,” Mr. Everson said. “I hope that the courts and Congress will not allow Johnson & Johnson to bully the American Red Cross.

Johnson & Johnson protests that the company is a reluctant plaintiff, as its spokesman told the Times:

We deeply regret that it has become necessary to file this complaint. The company has the highest regard for the American Red Cross and its mission.

What gives?

Michael Froomkin has the answer, I think:

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3

Maintaining Our Personal Bridges

I live in the Twin Cities, and the Law School where I teach is just a few blocks from the I-35W bridge that collapsed into the Mississippi River last week. (It’s so nearby, in fact, that some of the investigators are using the school building as a temporary headquarters). I am fine and so is everyone I know.

I was touched by the e-mails and phone calls my wife and I got right after the event from friends all around the country, checking in to make sure we all are safe. Some came from people I’ve just met a couple of times at conferences, but they were genuine and concerned. Others were from people who have been among my closest friends. We all have this commendable human impulse to reach out in a crisis. (I have checked with my London friends whenever there is terrorism there, for example.) It reminded me of other times that I’ve been on the receiving end of those “are you OK?” messages. Last year I had serious heart surgery and my wife brought printed e-mail messages (and traditional cards) to the hospital every day and read them to me. I lived in New York City when the World Trade Center was destroyed and hearing supportive words from friends in other places helped put that shattering event in perspective. Of course this is one of the wonderful things about instantaneous but asynchronous telecommunications like e-mail: we can bridge gaps of both geography and time, because my faraway friends can read what I say right away, but we don’t both have to be available at the same time as we would for a phone call.

Yet there is something bittersweet about it. There are so many people in our lives like this: we think of them fondly, we consider them our friends, we always intend to connect with them, but in fact our only real communications come in Christmas cards or concerned messages in the wake of falling bridges and buildings or open-heart surgery. (Perhaps, if we are lucky, there are also the fortuitous “I’m gonna be in town for a conference so let’s have dinner” invitations.) I am resolving to try to do a better job of maintaining the cross-country friendships that matter to me. Not that there’s anything bad about touching base after a catastrophe, but that shouldn’t be the only impetus. It’s so easy to communicate now that I think we take it for granted. Characters in nineteenth-century novels are always scheduling time out of their day to attend to their correspondence. We do nothing so intentional.

And you, dear reader? You are probably looking at this blog because you are procrastinating from doing something else. So, I challenge you: quick, close your eyes and think of someone you’d want to call or e-mail in the wake of a disaster. Then do it, right now, before any other bridges collapse.

[Cross-posted at Info/Law]

1

Jeffersonian Privilege

The D.C. Circuit ruled this morning on Rep. William Jefferson’s motion to get back the material seized when the FBI searched his congressional office in the Rayburn House Office Building. As is so often the case, the early AP story on the decision sort of missed the boat. It was headlined “Court: FBI Violated Constitution in Raid.” But the actual holding is quite limited. Jefferson gets back originals and copies of all legislative materials, but not anything non-privileged. The court also deferred any decisions about usability of any of that non-privileged material at Jefferson’s upcoming bribery trial; the district court will make that determination in the first instance.

So, the impact for the future seems to be that the Executive can search congressional offices with a warrant, and can do so without tipping off a legislator in advance (potentially allowing destruction of evidence). The only difference is that the Member of Congress has to be there during the search and is permitted to assert his privilege under the Speech and Debate Clause “before the Executive scour[s] his records.” (Slip op. at 15.) I’ll be keen to hear what the real experts on separation of powers think of this opinion.

It is also interesting to contemplate how this apparently narrow practical scope of the legislative branch privilege contrasts with the assertion of executive privilege over the U.S. Attorney firings and related matters.

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1

Harry Potter and the Legal Scholarship Boomlet

Harry potter cover.jpgIn a comment responding to my recent observations about due process in the world of Harry Potter, Jennifer Hendricks drew my attention to a paper by her colleague, Ben Barton (see Harry Potter and the Half-Crazed Bureaucracy, 104 Mich. L.R. 1523 (2006)). The paper is pretty good (and a great read!) although I think he somewhat overstates the extent to which the Ministry of Magic represents a libertarian-oriented critique of all government. (Without revealing too much about the plot of Book Seven — published after his paper — I think I can say that some of the problems at the Ministry are the work of malicious Death Eaters, not public choice theory. Unless, I suppose, you consider the Death Eaters stand-ins for special interests.)

Looking up that paper, I soon found a whole vein of “Law and Harry Potter” scholarship, stretching far past my original theme of due process. An SSRN search on “Harry Potter” in titles and abstracts identified 11 papers, and Westlaw found others. There is work on agency law in Harry Potter and a piece by two economists from Bar Ilan University about the “Potterian economic model.” Another paper inquires into whether the fixation requirement of copyright law would apply to portraits made by wizards, since the subjects of these paintings continue to move around, often speak, and sometimes leave the confines of their frames. Then there’s this collection of essays published in the Texas Wesleyan Law Review.

My favorite, though, was this one, Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizarding World. It’s the classic law review gambit: exhaustive study of a narrower topic which then enables a broader observation. Even the title, colon and all, is perfect. From the abstract:

This article attempts to examine the problems with the wizarding word’s legal system by focusing on one particular problem: the Unforgivable Curses, three spells whose use on humans is punishable by life imprisonment. The three Unforgivable Curses are the Cruciatus Curse, which causes unbearable pain; the Imperius Curse, which allows the user to control the actions of the victim; and the Killing Curse, which causes instant death.

There are inconsistencies both in the application of the law and in the selection of certain curses as Unforgivable. The choice to outlaw these three spells, and not others that may be even worse, reflects something about the values of both Harry’s world and ours. The article explores the moral assumptions underlying this choice, examining the legal treatment of these spells under the Ministry’s regime as well as under relevant British (Muggle) and international law.

As Larry Solum might say, download it while it’s hot! Meanwhile, I am starting to think maybe this whole Empirical Legal Studies thing could just be a fad, about to be displaced by “Potterian legal reasoning.”

[Cross-posted at Info/Law]

7

Harry Potter and the Due Process Clause

Harry potter cover.jpgDon’t worry, no spoilers here.

I stayed up way past my bedtime last night finishing the final Harry Potter book. I found it very satisfying. But this is a law blog, and I am a geeky law professor, so the phenomenon I will note is how extensively these books develop the theme of procedural fairness — a marvelous lesson for the children who are its target audience.

Time and again throughout the series, the Ministry of Magic that rules wizards in England falls far short of what we would consider the minimum of due process. There are repeated sham hearings that have the trappings of even-handed court proceedings, but they are rigged and hollow. In an earlier book (Harry Potter and the Order of the Phoenix, also the movie currently playing in theaters), Harry himself is accused of an infraction against wizarding rules; the Minister abruptly changes the time for his hearing before the Wizengamot — a sort of legislature with judicial functions, it seems — hoping that Harry’s principal advocate, the wise Albus Dumbledore, will miss it. The same phenomenon happens constantly at Hogwarts, the wizarding school. Various teachers and headmasters make arbitrary and capricious decisions and issue unjust punishments.

Sometimes this sort of unfairness is perpetrated by the clear bad guys, the evil followers of the story’s villain, Voldemort. More often, however, leaders of the Ministry of Magic or of Hogwarts are simply acting bureaucratically. They may not support Voldemort at all, but they treasure form over substance and obedience to the letter of the rules rather than any adherence to its spirit. Most of all they seek to preserve their own power against perceived threats — often petty threats far less serious than the real dangers posed by Voldemort’s followers. The fact that there is an official hearing, an examination of witnesses, and a vote provides no guarantee of substantial fairness.

Early in the first semester of my civil procedure course I plan to have the students read the classic procedural due process cases (Goldberg and Mathews) and think about the attributes that do — and should — constitute fair procedure. I think I will use the Harry Potter books as an example.

5

Weekly World News, R.I.P.

WWN cover.jpgSad news from the supermarket checkout line the other day: Weekly World News is ceasing production. (Hat tip: Threat Level). Now that the National Enquirer and Star have moved slightly upmarket to reach the bottom rung of the celebrity gossip ladder, just below InTouch and Hello! (and not all that far from People and Us Weekly), WWN was the sole survivor of the old “supermarket tabloid” realm. It was also unique in its cheerful and utter fabrication of ridiculous stories (as opposed to the slightly surreptitious and partial fabrication at the other tabloids). A bizarrely comprehensive Wikipedia entry captures the full range of its odd topics, from Bat-Boy to UFOs. I also fondly remember the woman who was electrocuted by static cling.

There is a famous WWN story in my family: my little brother, aged 8 or 9, burst into the apartment after an errand to the grocery store. “Mom! Mom!” he shouted. “They’ve found mermaids off the Catalina coast!” Brief cross-examination uncovered the source of his news, and he was crestfallen and a little mystified when my mother explained the fuller media context. That story always makes me a little sad — a young boy’s loss of innocence. (This was not, I probably should add, the brother who became a newspaper editor.)

It was the internet that killed WWN, I assume. Why wait for a weekly dead-tree dose of weirdness when a tsunami of similar free content awaited at all times, and without all that smudgy ink to boot? WWN’s own web site launched too late and it no longer stood out in that vast ocean the way it did while you waited for the cashier to finish bagging groceries for the guy in front of you. Besides, over time tastes in fake news moved on from the WWN formula of [(John Waters x Bill O'Reilly) + The X Files] to detached, ironic, decidedly more left-leaning and upmarket venues such as the Onion and the Daily Show. The Weekly World News retained the air of a slightly disturbed old guy with a handshake buzzer and a fair amount of actual paranoia and credulousness. But still a really sweet guy. I love Jon Stewart, but you sure can’t say that about him.

2

Teaching Non-Lawyers

In the last few days I’ve been at two gigs involving teaching about law to non-lawyers. It is an eye-opening and highly recommended experience.

Last week I was on the faculty of the annual Summer Doctoral Programme sponsored by the Oxford Internet Institute and this year hosted in the U.S. by the Berkman Center at Harvard Law School. (That’s “Programme” as they spell it and “Center” as we spell it.) SDP is an intensive two-week seminar for doctoral candidates from all over the world studying the internet through a range of methodological approaches and disciplinary perspectives. Almost none are lawyers. This week I taught cyberlaw topics at the annual Institute for Computer Policy and Law, cosponsored by Cornell University and EDUCAUSE. It’s aimed at professionals responsible for IT infrastructure in higher education, mostly librarian-types and computer-types. Again, few are lawyers.

Teaching in these settings is quite different from doing it in law school or presenting Continuing Legal Education courses to practicing lawyers, which I’ve also done. Among the fun challenges: my audiences in these two venues knew quite a lot about specific law applicable to their field. A doctoral student studying the social construction of privacy thinks deeply about its legal construction. A techie who runs course management software for a university has learned a lot of copyright rules. But they were not always familiar with basic legal concepts like the difference between statutory, judge-made, and regulatory law, or the interplay between state and federal requirements. More importantly, some of what they thought they knew was wrong. And there were some huge gaps. For example, I discovered that very few attending the higher ed IT event knew about 47 U.S.C. 230, a crucial immunity provision that generally protects from liability those who provide open online fora for user contributions, as many of their schools do (recent cases involve everyone from MySpace to Wikipedia). Finding the right level of specificity without assuming too much (correct) background knowledge was tricky.

Another challenge is finding reading material that is sophisticated yet accessible. Many cases are fine, especially if you edit them to cut out procedural folderol irrelevant to your main point. But appropriate secondary analysis is hard to come by. Most short summaries are too facile for these crowds. But most legal scholarship ventures way too far in the other direction. For the privacy session, I used Privacy in Atlantis, a great journal article by Jerry Kang and Benedikt Buchner in the form of an imaginary and sometimes humorous Socratic dialogue about the definition of privacy. For the IT folks, I used Larry Lessig’s Code (Version 2.0) and also told them about James Gibson’s sharp analysis of doctrinal feedback in IP law from the Yale Law Journal this spring. (Gibson’s punchy prose and straightforward presentation made it highly quotable, and I hope many in the audience will now go back and read the whole piece)

When the audience is composed of legal academics, lawyers, or law students, there are comfortable assumptions and expectations. Teaching non-lawyers can keep us on our toes. (Blogging has some of the same positive effect.) Overall, the experience was a great antitdote to excessive retreat into the shell of legal academia. And now I can return, refreshed, to my natural summer habitat, crafting law review prose.

[Cross-posted at Info/Law]

6

Sex, Laws, and Videotape (Genarlow WIlson Edition)

Genarlow Wilson, you may recall, is the young man sentenced to a 10-year mandatory sentence in Georgia for occurrences at a wild hotel room New Year’s Eve party with other high schoolers when he was 17 years old. He was acquitted of raping a 17-year-old girl who said that she was intoxicated and that her intercourse with Wilson was not consensual. He was convicted, however, of engaging in oral sex with a 15-year-old girl, even though all agree that encounter was consensual, because she was below the 16-year-old age of consent. (Moreover, the fact that they had oral sex in particular triggered a much more severe penalty than would have applied to intercourse, a quirk in Georgia law that the Legislature has since changed). The trial judge recently ordered Wilson released, calling his sentence “a grave miscarriage of justice,” but that order has since been appealed. Meanwhile the case has become a cause celebre, drawing comment from Jimmy Carter to Barrack Obama and, inevitably, spawning a web site and legal defense fund.

Clearly, there are dozens of possible legal blog posts embedded in this story: gender, race, sentencing, statutory rape and strict-liability crimes, the judge’s proper role in such circumstances. But I am going to focus on an information law angle — specifically, does the law require the release of a videotape at the center of the legal case, as the Georgia D.A. says, or forbid it, as the U.S. Attorney says?

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0

Square Tables

I presented my work in progress to my colleagues at the University of Minnesota Law School at this week’s “Square Table” lunch. If you teach at a school that doesn’t have one of these series, you should start one.

Every Wednesday during the summer, faculty gather for lunch and we have a short informal presentation followed by discussion. It’s held over at the campus center rather than the Law School building to get us out of our little cave (and get some different food too). Sometimes the discussion will center on a recent major case or some aspect of teaching methods, but usually it is a true “work in progress” presentation — a constructive critical audience for the speaker to try out a new paper, even if (like mine) it still exists more in your head and in your scrawled notes than in formal drafted form. I think the event’s peculiar name just originates from the fact that the tables in the room where it occurs aren’t round, although the format is. (Actually, they are rectangular tables, but never mind.)

The advantages are numerous. For the speaker, it is a chance to get feedback from a broader group much earlier than would be appropriate in more public fora such as SSRN or most “WIP” conferences. It also served as a mid-summer deadline to get my thoughts in order, useful for one’s self-discipline. Most important, it benefits the whole faculty to have a weekly event during the otherwise unstructured summer when many of those who are not traveling or otherwise engaged gather. It’s a chance to see one another, be less isolated, build community, exchange ideas. And the lure of decent free lunch helps get that attendance up.

This is only my second summer on the faculty but the tradition doesn’t date back much longer. I know lots of schools have something similar, but maybe a little less organized. This regularly-scheduled format seems popular here.

4

Smug Alert!

south park.jpgI sort of recognized myself in Emily Bazelon’s Slate article today about her family’s environmentalism. She and hubby and kids drive a Toyota Prius and recycle and otherwise try to take small steps to reduce their impact on the environment. My family, like hers, is modestly engaged in everyday environmentalism. We’ve had a Prius for three years (but we get closer to 48 mpg! Take that, Bazelon!). We recycle too, and buy a bunch of eco-products around the house (unbleached napkins, anyone?) and so forth. We belong to Co-op America, an organization promoting environmental consumerism, where my wife used to work. And certainly I agree with Bazelon’s baseline sentiment:

I want to make sure Eli and Simon never utter the kid version of the sort of overbearing environmentalism exemplified by this New Yorker quote: “I do daily yoga with my wife. We live in an energy-efficient house with solar-panel appliances. We use organic linens and towels. We try to ride bikes to work.” Don’t you want to punch this guy? I do.

Yes, I do too. Not because of all these things he does, but because he seems holier-than-thou. I convulsed in laughter at the South Park episode “Smug Alert!” about how all the “Toyota Pious” drivers are creating a dangerously toxic cloud of “smug.” (Kyle’s smug-emitting father, who briefly moves the family to San Francisco in the episode, is pictured above). Funny, because so often true.

But here’s where I part ways from Bazelon: I’m not particularly worried that my daughter will turn into some arrogant busybody environmentalist because I drive a Prius. I suppose I hope to pass on my core values to her, but those include not just environmental awareness but also humility, tolerance, a sense of humor, and most of all not being an insufferable jerk.

Indeed, fretting about this whole question strikes me as just the sort of hyper-conscious parenting that also makes me want to punch people sometimes. (Not that I ever do. I am far too peace-loving, of course.) Be a good role model on the smugness front, scold your kids if they get snooty, and hopefully it all works out. Don’t overthink it. Right?

And there’s one more antidote: we recently bought a used minivan to be our second car, and, at least for now, my daughter (age 3) likes it a lot better. Mostly because the doors slide.