Marquette University Law School Faculty Blog

The Wisconsin Supreme Court Amends Its Rules to Permit Citation of Unpublished Opinions, with Limitations

Post author:Jessica E. Slavin
Post published:October 15, 2008
Post category:Legal Research Legal Writing Wisconsin Court System

As you probably already know, yesterday the Wisconsin Supreme Court heard the petition of the Wisconsin Judicial Council to amend Wisconsin Statue section 809.23(3), to permit citation of unpublished Wisconsin Court of Appeals opinions as persuasive authority.

Beth Hanan, managing member of Gass Weber Mullins and Vice Chair of the Wisconsin Judicial Council, kindly offered the following summary of the hearing and the court’s decision to amend the rule. (Please note that these are Beth’s own, individual comments and are not the comments or thoughts of the Judicial Council.)

Taking a cautious step into a national trend, yesterday the Wisconsin Supreme Court voted 6:1 to permit citation of unpublished authored appellate decisions, with several limitations. Amended Wis. Stat. (Rule) s. 809.23(3), like Fed. R. App. P. 32.1, will be prospective only. This means that parties and courts will be able to cite those unpublished authored opinions which are released on or after the planned effective date of the amended rule, July 1, 2009. When parties cite such opinions, they will have to file and serve copies of the opinions. The rule specifically will provide that parties are not required to cite unpublished opinions. Finally, the supreme court has ordered that a committee be formed to plan the roll out of the rule and devise a means of tracking its effectiveness or particular difficulties it may create. Those statistics will be used by the court to review the rule three years after its adoption.

The Indian Scrabulous Decision

Post author:Bruce E. Boyden
Post published:October 15, 2008
Post category:Intellectual Property Law

Thanks to reader Apar Gupta, I have the text of the decision by the High Court of Delhi in Mattel, Inc. v. Agarwalla, a copyright and trademark action by Mattel against the Agarwalla brothers, the makers of Scrabulous. I posted a brief news item about the case earlier, and posted a four-part series on the American lawsuit against Scrabulous over on Prawfsblawg in August. (See Part I, Part II, Part III, Part IV.)

As the Agarwalla brothers reported a few weeks ago, the Indian decision held that Scrabulous did not likely infringe on Scrabble’s copyrights, but that the name “Scrabulous” does likely infringe on Scrabble’s trademarks. The court therefore issued an “ad interim injunction,” which I assume is the same as a preliminary injunction, against further use of the Scrabulous name. But my primary interest is copyright law, and the court’s copyright analysis, although very brief, is fascinating. Essentially, the court held that because the board and rules are necessary for game play, and game play is not copyrightable, therefore the board and rules are not copyrightable either. I think this probably goes too far, but it’s an interesting example of a court grappling with the nature of copyright in games.

Priorities for the Next President: Make Way for Faith-Based Alternatives

Post author:Richard M. Esenberg
Post published:October 15, 2008
Post category:Religion & Law

I tend to be supportive of faith-based alternatives in state funded social programs and education for a variety of reasons. For better or worse, we live in a time and place in which most such services are going to be publicly funded. To exclude faith based approaches is to eliminate a set of approaches that might be quite effective and sends a message about the propriety of faith-based perspectives in the public square.

Such approaches must be carefully designed to avoid compulsion and to ensure the availability of secular alternatives. But government should also avoid the temptation to remake faith-based approaches in its own image. I am opposed, therefore, to the expansion of federal and local civil rights laws to the extent it interferes with the ability of faith-based organizations to hire for mission, i.e., to prefer hires who share the group’s religious presuppositions.