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.

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To Iqbal or Not to Iqbal?

to_blog_or_not_to_blogOne of the recent challenges for Civil Procedure profs has been to explain the Twombly/Iqbal event to students already struggling to understand what often seems to be an arcane and highly contrived subject.

I begin by lowering expectations, showing a slide of a local federal judge with a caption depicting his reaction to Twombly –  expressed on a panel discussing the case at a CLE seminar. “When I read this case,” he recalled, “I said ‘what the hell?'” I remember following the good judge’s remarks and saying that he had succinctly summarized Twombly and all that would follow would be mere elaboration. After Iqbal, I am afraid I still can’t do much better.

Except maybe I can.

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Supreme Court Takes Jurisdiction Over “Jurisdiction”

copyrightA bit overshadowed by all the hubbub over the oral argument in McDonald v. City of Chicago, the Supreme Court yesterday handed down an important copyright opinion in Reed Elsevier v. Muchnick. (But see Howard Wasserman, Marcia Coyle.) The court held that Section 411(a) of the Copyright Act, which requires registration of a copyright as a prerequisite to an infringement suit, is not “jurisdictional”—that is, failure to file a registration does not deprive a court of all power to hear a claim.

This might not initially sound significant; after all, a plaintiff who files an infringement claim on an unregistered copyright is still going to have the case dismissed, whether Section 411(a) is deemed a mere prerequisite to filing or jurisdictional. But the distinction matters in three types of cases: class actions where unnamed members of the class would include owners of unregistered works (the Muchnick situation); plaintiffs who seek an injunction against further infringement encompassing all of their works, registered and unregistered; and would-be defendants who file for a declaratory judgement against a copyright owner who hasn’t registered yet. All three of those seem like worthy candidates for a court’s consideration as a policy matter, but all three were impeded by a slew of lower court opinions holding that a failure to register deprived the court of all power to even hear such disputes. (Congratulations for the win are due to lawyers from my old firm: Chuck Sims, who argued the case before the Supreme Court, and Jon Baumgarten.)

A bit of background before I continue:

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