April 1, 2014

Google Files Cert. Petition in Street View Case

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Category: Computer Law, Privacy Rights, Public
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Google Street View CarI noted back in October that Google had hired “noted Supreme Court advocate Seth Waxman” as it was preparing its petition for rehearing in the Street View case, “indicating perhaps how far they intend to take this.” (For background, see my earlier posts Part I, Part II, after the panel decision, and on the petition for rehearing.) My suspicions were accurate — after losing again at the rehearing stage in late December, Google has now filed a petition for certiorari, asking the Supreme Court to reverse the Ninth Circuit.

Google’s petition primarily makes the same substantive arguments it made in its petition for rehearing. The Ninth Circuit in the decision below adopted what I’ve called the “radio means radio” approach — “radio communications” in the Wiretap Act means only communications that you can receive with, you know, an ordinary AM/FM radio. I’ve argued that that is mistaken, and Google unsurprisingly agrees with me. Google provides three reasons why the Ninth Circuit’s interpretation cannot be sustained. Read more »

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March 31, 2014

Disney and Phase 4 Films Settle Lawsuit over Frozen Logo

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Category: Intellectual Property Law, Popular Culture & Law, Public
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Earlier this year, Disney and Phase 4 Films settled a lawsuit over Phase 4′s attempts to capitalize on Disney’s latest animated success, Frozen. Phase 4′s film was originally titled The Legend of Sarila. According to the complaint filed by Disne​y, it was released November 1, 2013, a few weeks before Frozen’s release, to dismal box office revenues. Phase 4 then changed the film’s name to Frozen Land, and redesigned the film’s logo to mimic that of Disney’s Frozen. For a side-by-side look at the logos, see the complaint filed by Disney here. 

In the settlement, Phase 4 agreed to immediately stop marketing and distributing its film under the name Frozen Land, and pay Disney $100,000. At first I was skeptical of Disney’s claim, but after comparing the separate logos, it seems highly unlikely that this was anything but a blatant attempt to profit off of Frozen‘s success. The logos contain the same color scheme, the same shape, and almost identical fonts.

As far as the Lanham Act violation claim, it seems almost certain that consumers would be confused as to the relation between the two movies, perhaps reasonably assuming that Frozen Land is a spin-off of Frozen. They also settled an unfair competition claim that was based on Disney’s claims that Phase 4′s Frozen Land caused irreparable damage to Disney’s goodwill and reputation.

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Imprisonment Inertia and Public Attitudes Toward Truth in Sentencing

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Category: Criminal Law & Process, Legal Scholarship, Public, Wisconsin Criminal Law & Process
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I’ve posted a number of times about the interesting results of the Marquette Law School Poll regarding the attitudes of Wisconsin voters toward truth in sentencing and early release from prison (e.g., here and here).  I’ve now finished a more in-depth analysis of the survey data with Professor Darren Wheelock of Marquette’s Department of Social and Cultural Sciences.  Our results are discussed in a new paper on SSRN (available here).  The abstract sets forth a little more of the context and key findings:

In the space of a few short years in the 1990s, forty-two states adopted truth in sentencing (“TIS”) laws, which eliminated or greatly curtailed opportunities for criminal defendants to obtain parole release from prison. In the following decade, the pendulum seemingly swung in the opposite direction, with thirty-six states adopting new early release opportunities for prisoners. However, few of these initiatives had much impact, and prison populations continued to rise. The TIS ideal remained strong. In the hope of developing a better understanding of these trends and of the prospects for more robust early release reforms in the future, the authors analyzed the results of public opinion surveys of hundreds of Wisconsin voters in 2012 and 2013. Notable findings include the following: (1) public support for TIS is strong and stable; (2) support for TIS results less from fear of crime than from a dislike of the parole decisionmaking process (which helps to explain why support for TIS has remained strong even as crime rates have fallen sharply); (3) support for TIS is not absolute and inflexible, but is balanced against such competing objectives as cost-reduction and offender rehabilitation, (4) a majority of the public would favor release as early as the halfway point in a prison sentence if public safety would not be threatened, and (5) a majority would prefer to have release decisions made by a commission of experts instead of a judge.

Entitled “Imprisonment Inertia and Public Attitudes Toward ‘Truth in Sentencing,’” our paper will be published in early 2015 in the BYU Law Review.

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March 27, 2014

Congratulations to the 2014 Jenkins Honors Moot Court Competition Finalists

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Category: Legal Writing, Marquette Law School, Public
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Congratulations to this year’s Jenkins Honors Moot Court Competition finalists: Amy Heart, Jennifer McNamee, Elizabeth Oestreich, and Frank Remington. All the competitors presented strong oral arguments tonight.

Thank you to the judges of the semifinal round: Hon. Michael Bohren, Hon. G. Michael Halfenger, Hon. Donald Hassin, Hon. Nancy Joseph, Hon. Joan Kessler, Hon. JoAnne Kloppenburg.

The final round will be held on Wednesday, April 2 at 6:00 p.m. in the Appellate Courtroom. The teams will be matched as follows:

Team 2, Jennifer McNamee and Elizabeth Oestreich v. Team 8, Amy Heart and Frank Remington.

Best of luck to the finalists.

 

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March 26, 2014

Majority Opinion on “Obamacare” Doesn’t Lie in Either Extreme

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Category: Health Care, Marquette Law School, Public
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As is so often the case, the focus in news reporting on the fresh results of the Marquette Law School Poll, released on Wednesday, was on the race for governor, with Republican Gov. Scott Walker’s lead over Democratic challenger Mary Burke holding steady from the prior round of polling in January. (Walker led 48 percent to 41 percent this time, compared to 47 percent to 41 percent then.)

But there is a lot more in each round of polling, both results that shed richer light on voters’ views related to candidates and voters’ views on issues. Distinguished Fellow Mike Gousha looks at some of the former in his posting on this blog, which can be found by clicking here. Permit me to look at one aspect of the latter, the results related to the new federal health law, often called Obamacare — results which don’t get much time in the spotlight.

Professor Charles Franklin, director of the Marquette Law School Poll, pointed to one of the most interesting results related to health care in his discussion of the results with Gousha on Wednesday. Put simply: There isn’t much political mileage to be gained from being either strongly in favor or strongly opposed to the federal law. What the majority of those who were polled said they want is to keep the new law but improve it. Specifically, only 8 percent want to keep the law the way it is, only 18 percent want to see it repealed and not replaced. But 52 percent want it improved, while another 18 percent said they want it repealed but replaced with an alternative. That’s 70 percent who want a better plan than Obamacare, but still want a federal health care law (presumably in addition to or expanding on Medicare and Medicaid). Read more »

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Poll Results Show Strengths and Weaknesses for Walker and Burke

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Category: Marquette Law School, Political Processes & Rhetoric, Public
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A couple of quick observations about the newest Marquette Law School Poll, released Wednesday. It contains good news for Republican Governor Scott Walker, who leads his likely Democratic challenger Mary Burke 48 to 41 percent among those surveyed. Walker should also be heartened by the results of the familiar and important “right direction/wrong track” question. Fifty-four  percent of respondents say Wisconsin is headed in the right direction. Only 42 per cent say we’re on the wrong track. There is also majority support for his recently signed $541 million property and income tax cut.

But the poll reveals several areas of concern for the governor. He remains below 50 percent in job approval and in a head-to-head matchup with Burke. Seventy-three percent of those surveyed say a failure to keep his 250,000 new jobs promise would be “very important” or “somewhat important” in deciding how they would vote. The governor’s opposition to a minimum wage hike and repealing the state’s same sex marriage ban puts him at odds with public sentiment in the poll, and the recently released John Doe documents aren’t helpful. But perhaps the most worrisome result for the Walker campaign is found in question number 32. When asked if Walker “cares about people like me,” 51 percent say he doesn’t. Forty-three percent say he does. Mary Burke fares better on the question. Thirty-six percent say Burke “cares about people like me.” Twenty-nine percent say she doesn’t. But 34 percent say they don’t know, demonstrating that many people still haven’t formed an opinion of Burke. It’s early, but the “empathy” or “compassion” question will be one to watch as the campaign moves into high gear.

 

 

 

 

 

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March 25, 2014

Burke Zings Walker, Touts Herself as Pro-Business Candidate

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Category: Political Processes & Rhetoric, Public, Speakers at Marquette
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Who’s the real pro-business, pro-jobs candidate in this year’s election for governor of Wisconsin? Mary Burke, who is mounting a major campaign as a Democrat, used an “On the Issues with Mike Gousha” program Tuesday in the Appellate Courtroom of Eckstein Hall to say it’s her.

Her visit provided her first public comments on her long-awaited economic development plan, which was released late Monday night. With the presumption that jobs and the economy will be the central issue, Burke said she’s the one with specific plans that will create a better business climate in Wisconsin.

Burke held up a four-page position paper on the subject from Walker’s 2010 race for governor and said, “I’ve seen eighth grade term papers that frankly had more work put into them.” She said that in terms of job creation, Wisconsin still ranked 35th in the country and ninth among 10 Midwestern states after three a half years of Walker as governor. Wisconsin also ranks 48th in business start-ups, she said, and she criticized the track record of the Wisconsin Economic Development Corp., which Walker created to succeed the state Commerce Department that Burke headed under Gov. Jim Doyle a decade ago.

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Congratulations to the 2014 Marquette AAJ National Trial Competition Team

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Congratulations to Marquette’s AAJ National Trial Competition Team for its third place finish in the Chicago regional.

The AAJ National Trial Competition is one of the premier national trial competitions in the country. Well over 200 teams from law schools around the country compete. The Chicago regional is generally one of the toughest regions, and many teams that advance from the Chicago regional to the national competition have ultimately won at nationals.

The Chicago regional hosted 16 teams. After the three preliminary rounds, Marquette was undefeated and advanced to the semi-final round. While the Marquette team ultimately lost a well-fought trial, the team ended up placing third in the Chicago regional. It was an excellent showing.

The team members are Katie Halopka, Hans Lodge, Emil Ovbiagele and Matt Tobin. Professor Dan Blinka is the team’s advisor, and attorneys Jason Luczak and Nate Blair coached the team.

 

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March 24, 2014

Legislative Treatment of E-Cigarettes

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Category: Health Care, Public
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In recent months, efforts to subject e-cigarettes to the same laws as traditional cigarettes have swept the country.  The San Francisco Board of Supervisors has unanimously voted to subject the smokeless, tobacco-less cigarette to the same public bans as cigarettes.  Across the country in New Jersey, Governor Chris Christie recently unveiled a new budget plan that will subject e-cigarettes to the same excise tax rate as their tobacco-filled cousins.
So, should e-cigarettes and cigarettes be subject to the same laws?  Read more »
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March 23, 2014

Congratulations to the 2014 Jenkins Honors Moot Court Semifinalists

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Congratulations to this year’s Jenkins Honors Moot Court Competition semifinalists: Tyler Coppage, Amy Heart, Brian Kane, Amanda Luedtke, Jennifer McNamee, Elizabeth Oestreich, Frank Remington, and Derek Waterstreet. Teams are advancing after four rounds of preliminary competition.

Thank you to the numerous judges who graded briefs and heard oral arguments, as well as to all the competitors, who prepared hard for the competition and fought good battles this weekend.

The semifinal round will be held on Thursday, March 27 at 6:00 p.m. The teams will be matched as follows:

Tyler Coppage and Derek Waterstreet v. Jennifer McNamee and Elizabeth Oestreich will argue in the Appellate Courtroom.

Brian Kane and Amanda Luedtke v. Amy Heart and Frank Remington will argue in the Trial Courtroom.

The teams will argue before a panel of judges, including Hon. Michael Bohren; Hon. G. Michael Halfenger; Hon. Donald Hassin; Hon. Nancy Joseph; Hon. Joan Kessler; and Hon. JoAnne Kloppenburg.

Good luck to the semifinalists.

 

 

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March 21, 2014

Commonly Confused Words: Knowing When to Choose the Right One

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Category: Legal Writing, Public
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Even as we add more official (and some might say questionable) words to our dictionaries—like selfie, twerk, sexting, and LOL—we sometimes seem to have a difficult time knowing when to use some of the basic words that have been around forever. Below are some commonly confused words, their meanings, and their proper use.

That/Which/Who – Probably the most commonly confused combination.  Misuse of “that” and “which” proliferate nearly every judicial opinion students read, which adds to the confusion.  Also, of late, I’ve noticed that students are dropping the use of “who” altogether and using “which” instead in places that make their writing grammatically incorrect.  So let’s take a look at each of these words. Read more »

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March 20, 2014

2014 Jenkins Honors Moot Court Competition Preliminary Rounds

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Let the March Madness begin!

This weekend, the nine Jenkins Honors Moot Court Competition teams will compete in four preliminary rounds at Eckstein Hall. The rounds will be held on March 22nd at 10:00 a.m., 1:00 p.m. and 4:00 p.m., and on March 23rd at 10:00 a.m. and 1:00 p.m. Law students are invited to attend any of the rounds and should plan to arrive to the round at least five minutes before the round begins.  Attending a round of competition is a great way for students to learn more about moot court and study oral advocacy techniques.  Students–come and cheer on your friends and classmates.

Thank you to Brittany Kachingwe, Associate Justice of Intramural Competitions, and the Moot Court Board for their work in organizing the competition.  Best of luck to this year’s competitors!

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