“We Can Be Better Than That”

Posted on Categories Legal Education, Legal Ethics, Legal Practice, Public2 Comments on “We Can Be Better Than That”

Law school is hard.  Being a lawyer is harder.  But that difficulties and responsibilities come with entering the legal profession is not something to bemoan or a cause to run away.  Nor should the difficulty of legal education and practice be sought purely as a means to financial rewards, especially since these rewards are becoming all the more elusive in today’s world.  It is an opportunity for intellectual development and experience, all lifetime benefits to embrace.

The difficulty starts from the moment we study for the LSAT.  In our first years, we are tasked with reading and processing and cogently articulating concepts gleaned (or pulled like teeth) from ancient cases about barrels falling out of windows, churches burning down, and smoke balls that supposedly cured every minor ailment under the sun.  Come second year, we may find ourselves toiling in the law review cite-check room as staffers or coming out of our shells as we practice oral argument for Appellate Writing & Advocacy, along with even more copious amounts of reading, this time on topics like criminal process, agency and corporate law, taxation, postmortem property transfers, and intellectual property.  Then you will get the taste of working as an attorney, whether in a summer associate position at a large firm or clerking for a mid-size or smaller firm, in which your legal studies for the first time become “real.”  When third year arrives, you will have the chance to take workshops on pretrial practice and contract drafting among others, and (you guessed it) more reading.  In sum, as Justice Stephen Breyer was right to tell his children, “[I]f you do your homework really well, . . . you can do homework the rest of your life!”

Once you begin practicing in the real world, you will have even more difficult homework, and the stakes are even higher.  Continue reading ““We Can Be Better Than That””

Combatting Gray Markets: A Copyright-Protected Distribution Right or a Sherman Act Violation?

Posted on Categories Business Regulation, Intellectual Property Law, U.S. Supreme Court3 Comments on Combatting Gray Markets: A Copyright-Protected Distribution Right or a Sherman Act Violation?

At one time, the prospect of stating legal claims against gray market importers looked bleak.  Product manufacturers tried trademark protection, but trademark law proved disappointingly unsuccessful.  One company has now turned to copyright protection, and this company obtained a Ninth Circuit decision that found a store using a gray market importation scheme unable to raise a defense to copyright infringement.  The company is Omega S.A., a Swiss luxury watch manufacturer known for producing the Seamaster line of watches appearing in many James Bond films, and the case is Omega S.A. v. Costco Wholesale Corp., 541 F.3d 982 (9th Cir. 2008). In spite of Omega’s favorable Ninth Circuit judgment and opinion,  market-wide legal questions about Omega’s distribution practice remain.  Regardless of whether or not a manufacturer could state a claim for copyright infringement against gray marketers, infringement defendants may answer back by counterclaiming an antitrust violation.  And if an antitrust counterclaim can halt copyright enforcement, then Omega’s win at the Ninth Circuit would end up a hollow victory at best or an academic stroll through the Copyright Act at worst.

Here are the facts of Omega v. Costco.  Omega maintains a tight grip on its authorized distribution channels.  Omega attempted to gain control of its watches’ distribution by engraving a design on the back of its watches (pictured below) and registering this design at the U.S. Copyright Office. Omega sold watches with these designs to their authorized distributors.  Somewhere along the distribution line, however, the watches ended up in the hands of distributors outside of Omega’s authorized channels abroad.  As the Ninth Circuit recognized, this is a paradigm gray market importation scheme, in which products meant to be sold in one territory are imported into another, usually for cheaper prices. One of Costco’s suppliers based in New York imported watches from these unauthorized distributors and eventually transferred the watches to Costco, which then sold these watches to its customers in California. One of those purchasing customers turned out to be a plant employed by Omega.

Omega then sued Costco for violating their exclusive right to distribute  its copyrighted works and for importing them without Omega’s authorization.  Costco asserted the first-sale defense, arguing that Omega’s right to control the distribution of its watches under both the distribution and importation statutes ends with its first transfer to its authorized distributors.  Costco v. Omega’s ending at the Supreme Court was a bit anticlimactic, with the U.S. Supreme Court evenly divided 4-4 (Justice Kagan didn’t take part in the non-decision).  This led to a summary affirmance of the Ninth Circuit’s decision below and no rule from the Supreme Court resolving the statutory tension in the Copyright Act.

Continue reading “Combatting Gray Markets: A Copyright-Protected Distribution Right or a Sherman Act Violation?”

Measuring the McCarran-Ferguson Act’s Antitrust Immunity

Posted on Categories Business Regulation, Federal Civil Litigation, Federalism3 Comments on Measuring the McCarran-Ferguson Act’s Antitrust Immunity

That insurance regulation rests primarily with the fifty states has become axiomatic and even cliché.  Around the country are operational state insurance commissions, and for much of the twentieth century, the federal government has let these agencies be.  The Employee Retirement Income Security Act’s (ERISA) sweeping preemptive force is cabined by a savings statute that allows the business of insurance to escape federal employee benefit plan regulation.  And the McCarran-Ferguson Act, generally speaking, provides that three comprehensive federal statutes sanctioning anti-competitive, unfair, and deceptive market activity—namely the Sherman Act, the Clayton Act, and the Federal Trade Commission Act—do not reach the insurance industry inasmuch as the business of insurance is regulated by the states.

This state-centric arrangement has come under fire in the last couple of decades, with the federal government staking its ground regulating insurance first around the periphery and then increasingly at the core of the insurance industry.  Some federal statutes make certain practices with certain aspects of an application for or policy of insurance illegal, whether proscribing genetic discrimination, as the Genetic Information Nondiscrimination Act (GINA) does, or limiting the pre-existing condition as the Health Insurance Portability and Accountability Act (HIPAA) did.  Also regulating health insurance at the federal level is the monumental Patient Protection and Affordable Care Act of 2010 (PPACA or “Obamacare” as it is more popularly known).  The PPACA statutorily mandates that some health insurance policies and group health plans eliminate certain provisions altogether, such as lifetime limits on health benefits and the pre-existing condition limitation.  Perhaps even more radically, the PPACA delegates authority to the Department of Health and Human Services to regulate the contents of health insurers’ and plans’ summary of benefits and even the policies themselves. Continue reading “Measuring the McCarran-Ferguson Act’s Antitrust Immunity”

How Scam Blogging Threatens the Law’s Professional Image

Posted on Categories Legal Education13 Comments on How Scam Blogging Threatens the Law’s Professional Image

I first want to express my sincerest gratitude for the opportunity to appear on the Marquette University Law School Faculty Blog.   I have been a long time reader of the Faculty Blog, and what was true when I first started reading this blog continues to be true now: I have thoroughly enjoyed the quality of content posted here on a regular basis.  We have Alan Borsuk’s timely pieces on public education.  We can watch the fireworks as Professors Esenberg and Fallone debate.  And Dean O’Hear’s posts flag for us new and forthcoming scholarship by members of the Marquette community (to say nothing of his posts tracking cutting edge developments in federal criminal law).  In short, this blog has gotten it right.

Some law blogs, however, are not quite so lucky.  In fact, one trend in law blogs that has garnered nationwide attention this year is an example of blogging gone wrong.  That trend is called “scam blogging.”

Here is an account of how the scam blogging movement came to be.  Continue reading “How Scam Blogging Threatens the Law’s Professional Image”

Playing with Fire and an Obama Effigy

Posted on Categories First AmendmentLeave a comment» on Playing with Fire and an Obama Effigy

People do imbecilic things when alcohol enters the mix.  It is a fact of life.  On one end of the spectrum, drunkenness promotes relatively harmless buffoonery, whether it is singing along to “Sweet Caroline” completely out of tune at the bars on Water Street or repeatedly professing one’s love for his or her friends and family.  Sometimes, the passions of the moment, coupled with inhibitions lowered, push one to act out ill-conceived ideas that the voice of reason would have prevented, such as drunk-dialing.  On the other end of the spectrum, a beer- and liquor-swilling patron’s conduct may cross the line into the unlawful.

As the story develops, the burning of a statue of President Obama in West Allis may be in the company of the latter behavior.   TMJ4 reported that at the Yester Year’s bar, patrons lit a bust of Obama on fire.  The video footage was blurry given the room’s darkness and only focused on the statue placed on the bar, though “hoots and hollers” can be heard in the background.  Though West Allis is investigating whether the burning violated the city’s municipal fire code, the Milwaukee District Attorney’s Office will not charge anyone involved in this incident, and the Secret Service has terminated its own investigation.

This incident may very well not prompt legal action beyond those for possible fire code violations.  One cannot help but wonder, however, if the First Amendment would provide protection for burning an Obama effigy.  Continue reading “Playing with Fire and an Obama Effigy”

Does the Threat of Future Copyright Infringement Amount to Irreparable Harm?

Posted on Categories Evidence, Federal Civil Litigation, Intellectual Property LawLeave a comment» on Does the Threat of Future Copyright Infringement Amount to Irreparable Harm?

Chief among the bundle of rights one obtains in property ownership is the right to exclude others from the use and enjoyment of that property.  This “sole and despotic dominion” that an individual commands over their property is placed in danger, of course, when the property becomes subject to the wants and needs of others.  Absent the owner’s consent (as in the case of licensing) or operation of law (as with adverse possession), a property owner would be able to bring an action for trespass for such intrusions.

A judge holding a defendant liable for trespass perhaps carries the vision of plaintiffs having their rights vindicated, but cases do not end at liability.  The judge must also determine whether further remedies beyond damages are appropriate, including whether a permanent injunction should issue.  Such is a weighty decision touches upon an extraordinary remedy: a court order that a defendant must cease and desist its illegal activity or face punishment for contempt.   That being said, in many property cases, a court order only issuing damages would effectuate a judicial licensing of the behavior.  With that result, the incentives are adjusted such that the right to exclude does not rest with the plaintiff; instead, it is determined only by the extent to which the defendant is willing and able to engage in the trespassing behavior.  As such, the courts have presumptively treated infringement of property rights as worthy of injunctive relief.

That has also been the rule in copyright infringement cases for the last few decades.  Continue reading “Does the Threat of Future Copyright Infringement Amount to Irreparable Harm?”

In Praise of Marquette Law’s People

Posted on Categories Legal Education, Marquette Law School1 Comment on In Praise of Marquette Law’s People

One common thread running through many student bloggers on here is their writing at least one piece on the life of a law student.  And for good reason.  After all, law school is our life, from countless hours in the dungeon up on the third floor of the library (read “the cite-check room”) or in the various conference rooms practicing for moot court to slogging through piles of casebooks on the law of torts, contracts, and civil procedure.  Such is, to state the obvious, a far cry from the workload many of us had to endure during our undergraduate studies.   To be sure, it is enough work to add a few gray hairs; I can still remember how often the ASP leaders and faculty during my first-year orientation reassured my classmates and I, “You’re going to be stressed.” “We know it’s hard.” “There’s on-campus psychological counseling available.”  These stresses are so notorious, that my friends and I will frequently joke about how we should tell touring prospective students to get out while they still can.

But here’s the dirty secret: It’s really not that bad. Continue reading “In Praise of Marquette Law’s People”

Truth in Googling: Is Unfair Competition the Answer?

Posted on Categories Computer Law, Intellectual Property LawLeave a comment» on Truth in Googling: Is Unfair Competition the Answer?

In my freshman year of college, a long-time friend of mine and I decided to drive down to Chicago.  Shortly before heading to the Cadillac Palace to claim our seats for a comedy act performing there that night, my companion, being an Asian-food connoisseur, steered our walk downtown towards a Japanese restaurant in River North.   The interior design was stunning: dark, vaulting ceilings; a vibrantly colored fish tank as a focal point in the back; and an elliptical-shaped sushi bar in the center emanating the colors of the ocean.   I can also picture the black and red sign outlining the specials at the establishment’s door.  More vague, however, is my memory of one crucial detail about the restaurant: it’s name.

My inability to recall the name of that restaurant has prompted a flurry of Google searches on River North Japanese restaurants.   In the process, I have found many other places with likewise appealing aesthetics and succulent sushi, but my searches have returned no hits that appear to be the restaurant I was looking for.  The interior design of the River North establishment I found myself at distinguished it from every other restaurant Google has returned to me.  But those searches no less have provided me with other possible establishments awaiting my next trip to Chicago.

Now for a counterfactual.  How would my searches have turned out if I did remember the name of the restaurant?  Continue reading “Truth in Googling: Is Unfair Competition the Answer?”

Challenging Wisconsin’s Proposed Windows Legislation

Posted on Categories Civil Procedure, Marquette Law School, Uncategorized3 Comments on Challenging Wisconsin’s Proposed Windows Legislation

The deeply unsettling and appalling nature of the Catholic priest abuse scandal is difficult to express in hyperbole.  More and more cases continue to come out of the woodwork, and stories abound of allegations of cover-ups and throwing around hush money to abuse victims, all incited by those charged with the sanctified duty to guide, teach, and counsel the faithful.  Words alone cannot encapsulate the scarring that this scandal has wrought on its many victims.  Even a pastor at my parish told the congregation when the scandal first came to light that the news left him “ashamed to be a priest.”

In the wake of such grizzly conduct, however, is the need to address how to remedy the problem.  For some victims of abuse, the solution is a day in court: a chance to bring a civil action for a public determination of liability and an order of compensation for the wrong.

But under current Wisconsin law, the statute of limitations has already barred many of these abuse suits.  Section 893.587 of the Wisconsin Statutes provides that a victim of sexual abuse as a child may bring an action until that victim turns 35 years old; at that time, the cause of action evaporates.  The statute covers a cause of action for clergy abuse under Section 895.442(2)(a) of the Wisconsin Statutes. Continue reading “Challenging Wisconsin’s Proposed Windows Legislation”