The Obama “Hope” Poster Case — AP Strikes Back

(This is the fifth in a series of posts on Fairey v. Associated Press. See below for other posts in the series.)

Today, the AP filed its response to the Fairey complaint—and as I predicted, the AP is asserting counterclaims for copyright infringement. Like Fairey’s complaint, the AP’s counterclaims go well beyond merely stating a cause of action, and attempt to win the battle for positive publicity as well. (Note to my Civ Pro students: Take a look at these pleadings if you want to see skillful examples of what I was talking about when I mentioned complaints that go beyond a “short and plain statement.”) Both sides in this case have their eye not just on the law, but on the ordinary, nonlegal intuitions of the press, the judge, the jury, scholars, and bloggers such as myself. (Indeed, I got a copy of AP’s press release by email. To Fairey’s attorneys: Feel free to reciprocate!)

I have a few quick observations.

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The Sex Crimes Panic

I have a new paper on SSRN regarding the seemingly endless fascination of American legislators with sex crimes.  Here is the abstract:

Sex crimes continue to be a matter of intense legislative interest at both state and federal levels of government, as evidenced by a flurry of recent enactments expanding sex offender registration requirements, prohibiting sex offenders from participating in “Halloween-related” activities, and facilitating the exclusion of sex offenders from social networking websites. Although legislative activity in the area of sex crimes has gone through regular phases of high and low intensity across the past century, the current high-intensity phase, dating from the 1980s, has lasted an unusually long time. Moreover, this high-intensity period displays the characteristics of what historians and sociologists have termed a “moral panic,” marked particularly by the rapid adoption of many new laws that seem poorly designed to achieve their community-protection aims. This Essay, which introduces a forthcoming issue of the Federal Sentencing Reporter devoted to recent developments in the punishment and management of sex offenders (Vol. 21, Issue 2), offers a critical overview of the new laws and considers why the sex crimes panic has proven so much more durable than the crack cocaine panic, which also arose in the 1980s.

Laws aimed at controlling sex offenders are invariably couched as child-protection measures — and, really, who can vote against protecting children? — but pay little attention either to the social scientific evidence regarding the greatest threats of sexual violence to children (family members and acquaintances, not the random strangers caught in the ever-widening web of sex-offender registration laws) or to the possibility that scarce criminal justice resources are being increasingly diverted from more productive uses to dubious new social control measures.  Sex offenders, of course, will draw no public sympathy when it comes to legislative overreaching, but in the current fiscal climate all taxpayers have an interest in ensuring that new laws are cost-effective responses to serious social problems.  And, as the New York Times recently reported, fiscal concerns seem to be driving a backlash against one of the more misguided recent enactments in this area, the so-called Adam Walsh Act.

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The Labor & Employment Curriculum

Back in the day, when I was at the law school, I had the opportunity to study Labor Law — union/management relations —  with Reynolds Seitz. It was the only “employment law” course in the curriculum at Marquette, and Marquette was quite typical of all law schools. I enjoyed the course very much and so, after my clerkship with Tom Fairchild, I became a management-side labor lawyer until I decided to move into law school teaching. The Dean at my first teaching post told me I would be teaching Torts and Labor Law, but that I had to make up two more courses.  So, I did.  One of them was a new course in Employment Discrimination Law. The area was relatively new, and I had been doing an increasing amount of it in practice. I saw it as interesting, important, and the wave of the future of employment law. I was shocked, however, to discover that at that time less than a handful of law schools had an Employment Discrimination course and that there were no published teaching materials. I had to assemble materials and have them copied and distributed to the students. It was a major effort, and I am glad that, as far as I know, no copies of my original efforts survived to embarrass me.  That challenge, however, became an opportunity. Employment discrimination law became a major focus of my scholarship, and I got several talented colleagues to work with me on several projects. First, we did a treatise, and then we got a contract from what was then Little Brown & Co. to do a casebook. Now published under the Aspen name, but still with the familiar red binding with black print, we are still at it. Our seventh edition was published last year, and we will be doing a supplement this summer. It is still an area that fascinates me and the law continues to struggle to achieve its primary goals of ending and remedying discrimination.

Across all law schools, more students now take Employment Discrimination than any other employment or labor law course. Channeling the union movement, Labor Law is now at risk of being dropped from the curriculum at many schools. Some of us console ourselves by claiming it is now a course in the history of labor law. This coming fall I will be teaching Labor Law at Loyola Chicago, where it has not been taught by a member of the regular faculty in the memory of living humankind. My plan is to try to combine both private and public unionization into one course, though I am not sure if I can pull that off. But combining the two areas reflects the strength that unions retain in the public sector that they lack in the private sector. Labor law will be, for the first time in a long time, in the news as a major political issue. Congress will consider amending the National Labor Relations Act with the Employee Free Choice Act. If enacted, that will allow a union to gain legal recognition by proof that it represents the majority of workers through signed authorization cards.

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