The Stakes in Andy Warhol Foundation v. Goldsmith

Next week, the Supreme Court will hear oral argument in Andy Warhol Foundation v. Goldsmith, the first non-software fair use case the court has heard since 1994. This has copyright lawyers aflutter, as fair use law has been in increasing disarray for the last 20 years or so, and there is hope that finally the Supreme Court will give lower courts much-needed guidance. Unfortunately, I think the probability is higher of a mush-filled disaster of an opinion, like the one in Star Athletica v. Varsity Brands (2017), that not only gives no guidance, but eliminates the few stable boundaries we have.

That’s because fair use doctrine is a poor fit for the way modern courts operate, and there is probably little the Court can do to fix that, but a lot it can do to make the problem worse. But before I get there, I want to lay out in this post what’s at stake in AWF.

The case involves a licensing deal between celebrity photographer Lynn Goldsmith and Vanity Fair magazine. (more…)

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The Washington, D.C., Issue of the Marquette Lawyer Magazine 

2020 Summer Cover

Amid all the global disruptions that started in March, Marquette Law School moved forward effectively in teaching students to be lawyers and in offering, as best we could, the public engagement we are known for. One important aspect of the latter is the release of the new issue of the Marquette Lawyer magazine, produced with a few internal procedural adjustments, but no change in schedule or in our commitment to provide high-quality reading to Marquette lawyers, all lawyers in Wisconsin, and many interested others.

Washington, D.C., is the focus of the new issue. The Washington that’s in (more…)

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When Must a Catholic Judge Recuse from Cases Involving His Diocese?

[The following is a guest post from Daniel Suhr ’08, a prior guest alumni contributor to the Blog.]

Yesterday the U.S. Supreme Court denied certiorari in Archdiocese of Washington v. Washington Metropolitan Transit Authority.  According to the order in the case, Justice Kavanaugh took no part.  In his statement respecting the denial of certiorari, Justice Gorsuch wrote, “Because the full Court is unable to hear this case, it makes a poor candidate for our review. But for that complication, however, our intervention and a reversal would be warranted….”  Justice Kavanaugh was a member of the D.C. Circuit panel that first heard oral argument in the case when he was Judge Kavanaugh, and thus could not hear the case again on appeal. See 28 U.S. Code § 47 (he subsequently withdrew from the panel).

Some have suggested that Kavanaugh was recused (either at the DC Circuit or SCOTUS) because he was an active member of a parish in the Archdiocese of Washington. This is not the standard for recusal for any judge on cases involving institutions of his or her faith.

Courts consistently hold that judges do not have to recuse when their denomination has taken a public stand on an issue before the judge. (more…)

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The Unprofessionals

In the decade after the American Civil War, Congress ratified three Amendments (the Thirteenth, Fourteenth, and Fifteenth) and passed five civil rights statutes (the Freedmen’s Bureau Act of 1866, the Civil Rights Act of 1866, the Civil Rights Act of 1870, the Civil Rights Act of 1871, and the Civil Rights Act of 1875) in an attempt to integrate African Americans into society and provide them with the full rights and privileges of citizenship.  From rights to vote, hold property, and contract, to rights of access to the courts, public infrastructure, and the marketplace, these enactments represented a dream of reconstruction that strove toward a more universal application of the ideals of the Declaration of Independence.  In striking down and interpreting these laws, the decisions of the Supreme Court played a crucial role in curtailing the promise of this older civil rights movement.  The Court’s undermining of the laws led to the legal segregation, discrimination, terrorizing, denial of due process, lynching, murdering, exploitation, and injustice that characterizes the African American experience in the century that followed.

The highlight reel that we all study in Constitutional Law class includes:

(more…)

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Did Justice Ginsburg Stay Too Long?

Ruth Bader Ginsburg is a liberal stalwart. An icon of a generation. She has fought for everything in her life, and, in recent times, she has been fighting for her life. RBG has had an incredible career and has often been a voice for people who didn’t have one. Her liberal ideology has been a light shining through times of darkness. Through all of her incredible work, I believe that two questions still need to be asked. Was RBG selfish by not resigning toward the beginning of President Obama’s second term in office? Would that have been the right decision to allow President Obama to appoint someone who may last longer on the court? It may not be worth arguing over since it is long in the past, but there is a discussion to be had, nonetheless.

It is always tough to foresee when someone’s health will falter. With RBG, that sadly seems to be the norm rather than the exception at this point. Half of the country is left hanging every time her name comes up on a major news network or trends on Twitter. Thankfully, she has come out on top of everything she has battled thus far, but it is not outlandish to say that one of these times the country may not be so lucky. (more…)

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