Welcome to Our February Blogger

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ValentinesdaytreeDue to an unavoidable last-minute cancellation, we’re a few days late rotating out our guest bloggers, but I’m delighted to announce that 1L Lauren Koehler has agreed to step in on short notice as our February guest blogger.  Lauren was born and raised in Michigan, got her B.A. in English from Boston University, and is interested in real estate law. She is an avid hockey fan. A belated thanks to our previous guest, 2L Vanessa Richmond.

What Is the NBA?

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basketballProfessor Nadelle Grossman has another forthcoming publication, “What Is the NBA?”, written for the faculty symposium issue of the Marquette Sports Law Review.  The abstract is below, and you can access the full article at SSRN:

The NBA’s organizational structure is curious.  While courts at times refer to the NBA as a joint venture and at other times as a single entity, their analyses are conducted not for state organization law purposes but to assess the NBA’s compliance with federal antitrust law.  Commentators, too, consistently address the NBA’s organizational structure only under antitrust law and not state organization law. As I argue, given the different purposes of these two legal regimes — antitrust law to protect consumers through preserving competition, and state organization law to ensure managers are faithful to the business purpose and to create a default structure among owners and managers — conclusions about the NBA’s organizational structure for purposes of compliance with antitrust law does not control the analysis of the NBA’s structure for purposes of state organization law.

To fill the gap in case law and commentary, this article analyzes the NBA’s organizational form under state organization law.  This analysis is important because the NBA’s organizational form impacts the rights and duties of the member team-owners of the NBA.  If, for example, the NBA is a joint venture partnership under state organization law — that is, an association of team owners who have come together to pursue a limited scope business for profit — then by default, its members would owe fiduciary duties to the other members and any member could seek judicial expulsion of a recalcitrant member.

Casual Convergence in Unincorporated Entity Law

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offices-at-night-smProfessor Nadelle Grossman has a forthcoming book chapter entitled “Casual Convergence in Unincorporated Entity Law” in the Research Handbook on Partnerships, LLCs and Alternative Forms of Business Organizations (Robert W. Hillman & Mark J. Loewenstein eds., Edward Elgar Publ’g forthcoming 2015).  The abstract is below. You can access Prof. Grossman’s full book chapter at SSRN.

As seemingly uniform as the surface of the sea, unincorporated entity acts in most states are drafted from one of the National Conference of Commissioners on Uniform State Law’s (NCCUSL) uniform acts.  In fact, by the end of 2013, seven states had adopted NCCUSL’s latest uniform act governing limited liability companies (LLCs), called the Revised Uniform Limited Liability Company Act, or RULLCA, and more have since followed.

Supporters of uniformity, including NCCUSL, argue that uniformity among state LLC acts generates administrative and cost savings.  Critics, on the other hand, argue that uniformity undermines state experimentation to achieve more efficient LLC laws.

However, I argue in the chapter that these debates about uniformity are misguided.  Continue reading “Casual Convergence in Unincorporated Entity Law”

Welcome to Jonathan Koenig

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koenigI’m very pleased to announce that Marquette Law Adjunct Professor Jonathan Koenig will be writing a series of posts for the blog on two of his areas of interest, federal sentencing and supervised release, with the first post to come later this morning. Prof. Koenig is Appellate Division Chief in the U.S. Attorney’s Office for the Eastern District of Wisconsin. He has been a federal prosecutor for twelve years and argues frequently before the U.S. Court of Appeals for the Seventh Circuit. He currently teaches Appellate Writing and Advocacy.

The Supreme Court Considers Google Street View

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Google Street View CarAll of the interest in the Supreme Court tomorrow is likely to be focused on Hobby Lobby and, to a lesser extent, Harris v. Quinn. But I’ll be watching something that happens before either of those decisions is announced. I’ll be looking to see if the Supreme Court granted cert in the StreetView case. I hope the answer is no.

The StreetView case — Google v. Joffe — is one that I’ve blogged extensively about over the past year. See Part I, Part II; see also my coverage of the Ninth Circuit opinion, Google’s petition for rehearing, and the filing of Google’s cert. petition.) Briefly, Google’s StreetView cars intercepted the contents of transmissions from residential wi-fi routers whose owners had not turned on encryption. A number of class actions have been filed claiming that the interceptions were violations of the federal Wiretap Act. Google moved to dismiss them, arguing that radio communications (like wi-fi) basically have to be encrypted to be protected by the Wiretap Act. The district court and the Ninth Circuit disagreed, holding that the exception Google points to applies only to traditional AM/FM radio broadcasts.

Although I disagree with the Ninth Circuit’s reasoning and would find it professionally advantageous if the Supreme Court decided to take the case, I hope it denies cert. Here’s why. Continue reading “The Supreme Court Considers Google Street View”

Series: Looking Back at the U.S. Supreme Court’s 2013 Term

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US Supreme Court banner
I’m excited to announce a new summer series here at the Marquette Law Faculty Blog, one in which members of our faculty will be analyzing some of the most important U.S. Supreme Court decisions in their areas from the term that just concluded. Our first post is from Michael O’Hear on Burrage v. United States and Paroline v. United States, two important criminal law cases decided in January and April 2014, respectively. Posts in the series will have titles starting with “US Supreme Court Review.”

Is Hachette Being Hoisted by Its Own DRM Petard?

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booksRebecca Tushnet points to this column by Cory Doctorow arguing that Hachette is being held hostage in its fight with Amazon over e-book versions of its books because of its “single-minded insistence on DRM”: “It’s likely that every Hachette ebook ever sold has been locked with some company’s proprietary DRM, and therein lies the rub.” Doctorow argues that because of the DMCA Hachette can no longer get access, or authorize others to get access to, its own books:

Under US law (the 1998 Digital Millennium Copyright Act) and its global counterparts (such as the EUCD), only the company that put the DRM on a copyrighted work can remove it. Although you can learn how to remove Amazon’s DRM with literally a single, three-word search, it is nevertheless illegal to do so, unless you’re Amazon. So while it’s technical child’s play to release a Hachette app that converts your Kindle library to work with Apple’s Ibooks or Google’s Play Store, such a move is illegal.

It is an own-goal masterstroke.

Everyone loves irony, but I can’t figure out how to make Doctorow’s argument work. First, I can’t figure out what the anticircumvention problem would be. Second, I can’t figure out why Hachette wouldn’t be able to provide other distributors with e-book versions of its books. Continue reading “Is Hachette Being Hoisted by Its Own DRM Petard?”