The Second Circuit has vacated the preliminary injunction in Salinger v. Colting, the “Coming Through the Rye” case. I have not read the opinion, but this snippet from the introduction seems significant:
We hold that the Supreme Court’s decision in eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), which articulated a four-factor test as to when an injunction may issue, applies with equal force to preliminary injunctions issued on the basis of alleged copyright infringement. Therefore, although we conclude that the District Court properly determined that Salinger has a likelihood of success on the merits, we vacate the District Court’s order and remand the case to the District Court to apply the eBay standard.
It certainly used to.
Perhaps the most obvious examples are those from the early 19th century. Appointments of new justices were once tied to the creation of new circuit courts. And that was for good reason: Circuit courts were not the intermediate courts of appeals of today (with few exceptions, the most notable of which were the “Midnight Judges” that served from 1801 until 1802); they were largely nisi prius courts, functioning alongside district courts, with only limited appellate review. But they did not have their own judges. Various combinations of justices from the Supreme Court and judges from the district courts sat to form the circuit courts.
When Congress created the Seventh Circuit in 1807, therefore, which consisted of the new states of Kentucky, Tennessee, and Ohio, it required that the new justice assigned to that seat hail from there. The result was Jefferson’s appointment of Thomas Todd of Kentucky. Continue reading “Does Geography Affect Appointments to the Supreme Court?”
Memory plays an especially large role in our profession. Lawyers are constantly looking to the past, whether their particular focus is on the law (e.g., precedents of courts or enacted statutes) or on the facts (e.g., the primary conduct underlying legal disputes). The death earlier this week of Michael R. Wherry, L’62, “a very fine lawyer and human being,” as a colleague downtown put it to me, particularly brings the matter to my mind. (I recall Mike himself remembering his father, the late Ray P. Wherry, L’37, and his view of Marquette Law School a few years ago.) So, too, does an event tomorrow: the Milwaukee Bar Association’s annual Memorial Service. I blogged about this last year, after the fact, and was able to share Tom Cannon’s remembrance of his father, Judge Robert C. Cannon, L’41. This year’s Memorial Address will be delivered by Michael B. Brennan, formerly of the Milwaukee County Circuit Court and now of Gass Weber Mullins: I have no doubt that he will particularly remember his father, the late James P. Brennan, L’60. This year’s ceremony will occur tomorrow (Friday, April 30) at 10:45 a.m. in the Ceremonial Courtroom (Room 500) of the Milwaukee County Courthouse. The Memorial Service is a fine tradition, and I hope that members of the bar in particular will continue to support it by attending. For it is a salutary reminder that we as lawyers stand on the shoulders of those who have gone before us in the profession—and it is an enjoyable event as well.
The close of the school year is a good time to reflect on our students’ accomplishments in the 2009-10 Moot Court Program.
First, a summary of the efforts of the mostly third-year students who competed in what we call the “national competitions,” i.e., competitions among students from different law schools. This year, 40 Marquette Law School students in 15 teams competed in 12 different competitions, in various locations throughout the United States. Continue reading “Marquette 2009-10 Moot Court Program Achievements”
Ralph Anzivino continues his exploration of the economic loss doctrine in a new paper on SSRN. The economic loss doctrine indicates that economic losses resulting from a defective product are recoverable, if at all, under contract law, instead of tort law. In applying this doctrine, however, courts have run into difficulty with damage to other property besides the defective product. For instance, in one case, a ship caught fire and sunk as a result of defective hydraulic equipment, and the court had to decide whether the ship owner could recover the value of other equipment on the ship under a tort theory of strict products liability. Courts have adopted a variety of conflicting and uncertain tests to determine whether such damages to other property are governed by tort or contract law.
In his paper, Ralph proposes a new test that emphasizes contract principles first. Parties should be permitted to allocate the risk of losses between themselves. Thus, if a contract validly addresses losses to other property, Ralph would enforce the contract; otherwise, tort principles would apply. He defends this approach as clearer and more consistent with the underlying purposes of the economic loss doctrine than approaches currently in use.
Entitled “The False Dilemma of the Economic Loss Doctrine,” Ralph’s paper is forthcoming in the Marquette Law Review. His other recent articles on the economic loss doctrine are here, here, and here.
I had the opportunity last week to attend Women Judges’ Night, an event that the Association for Women Lawyers presents annually (indeed, this year’s dinner was the thirtieth such). The Hon. Diane S. Sykes, L’84, of the United States Court of Appeals for the Seventh Circuit, delivered what was billed as a keynote but was also in the nature of after-dinner remarks. The speech was a very good example of either form, for reasons related to its warmth, its willingness to take on a substantive and even somewhat contentious topic, and the speaker’s self-awareness and humor.
Judge Sykes began with a “confess[ion]”:
[T]the idea of a “Women Judges Night” has always made me vaguely uneasy. I’m uncomfortable with the implications and consequences of gender-identity politics—or any identity politics, for that matter. When we celebrate Women Judges Night every year, what is it precisely that we’re celebrating? If we’re celebrating the appointment or election of women judges just because they are women, then I think we are making a mistake about the qualities necessary in a good judge, which of course are not gender-specific. If we’re celebrating the appointment and election of women judges because they subscribe to a gender-based brand of judging, then we are making an even bigger mistake about the nature of the judicial role. I don’t think we’re celebrating either of these things, but I do think it’s important for us to be careful not to diminish the contributions of women judges by emphasizing their gender as if it had something to do with their qualifications for judicial office or has substantive significance in their work.
She would conclude with her own assessment of what the event celebrates, along the way touching upon matters from Madison to Washington, D.C.—from her former court, a majority of whose justices were in attendance (viz., Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, Justice Annette K. Ziegler, and Justice Patience D. Roggensack, the last of whom introduced Judge Sykes), to the United States Supreme Court and, in particular, last year’s confirmation of Justice Sonia Sotomayor. Continue reading “Sykes, Sotomayor, and Women Judges”
Looks like a big win for the plaintiffs in the gigantic employment discrimination class action in Dukes v. Wal-Mart (a group of some 2 million former and current female employees have sued over lack of promotion opportunitie). The 9th Circuit en banc, 6-5 with four separate opinions and 137 pages, affirmed class certification under Rule 23(b)(2) for some issues and remanded on others:
We affirm the district court’s certification of a Federal Rule of Civil Procedure 23(b)(2) class of current employees with respect to their claims for injunctive relief, declaratory relief, and back pay. With respect to the claims for punitive damages, we remand so that the district court may consider whether to certify the class under Rule 23(b)(2) or (b)(3). We also remand with respect to the claims of putative class members who no longer worked for Wal-Mart when the complaint was filed so that the district court may consider whether to certify an additional class or classes under Rule 23(b)(3).
The decision was written by Judge Hawkins, with a concurrence by Graber, one dissent by Ikuta and a separate dissent by Kozinski. The latter I am sure is fodder for a cert petition and I do believe this case is heading for a Supreme Court showdown.
Melissa Hart and I have written about how the social framework testimony of William Bielby was crucial, and properly admissible, in establishing the commonality and typicality prong for class certification.
Hat Tip: Rebecca Hamburg
Thomas E. Perez, assistant attorney general for the civil rights division of the US Justice Department, had a clear and firm message when he visited Marquette University Law School on Friday: He’s aiming to do the job he has held since October energetically and thoroughly.
That wouldn’t seem like a noteworthy statement, except for the political context of Perez’ situation and the controversies that attend many of the areas of enforcement in the civil rights division.
Perez said he would prefer to be like “the proverbial Maytag man,” sitting around with no one needing his services. But that is hardly how he described the work load of his division.
Perez spent almost all of his remarks, lasting about a half hour, defending the need for civil rights enforcement in today’s America and pointedly hitting the theme that the division is “open for business.” Continue reading “Civil Rights Enforcement Chief: “We Are Open for Business””
College basketball and football are big business — no one would deny that. But should they be taxed like big business? Although the NCAA and its member schools are tax-exempt not-for-proft organizations, such organization may nonetheless be taxed on “unrelated business income.” So, the question is whether big-time college sports programs are related to the educational mission of the universities that host them.
Matt Mitten, James Musselman, and Bruce Burton argue “yes” in a new article — because sports programs advance a wide range of legitimate university objectives, sports revenues should retain their tax-exempt status. Based on a number of case studies, they conclude that the benefits to universities of improved athletic programs may include “attracting high-quality faculty and students, generating donations and enrichment, reconfiguring  campus identities, and enhancing institutional political clout.”
Although Matt and his coauthors do not believe that tax law is the right way to reform college athletics, they recognize a need for changes to better protect student-athletes from exploitation. They would promote reform through a new, conditional antitrust exemption for the NCAA and its members.
Their article, entitled “Commercialized Intercollegiate Athletics: A Proposal for Targeted Reform Consistent with American Cultural Forces and Marketplace Realities,” was recenly published at 2 J. Intercollegiate Sport 202 as part of a symposium on tax law and athletic reform. The abstract appears after the jump. Continue reading “Should College Sports Revenue Be Taxed?”
Rick Esenberg has a new article in print that explores tensions within the Supreme Court’s Establishment Clause jurisprudence. In light of the recent, controversial decision overturning the National Day of Prayer, Rick’s topic could not be more timely. As Rick observed earlier this week, the Day of Prayer opinion is consistent with a long line of cases that attempt to achieve a level of government neutrality as to religion that seems unrealistic and overly ambitious. The article argues that “subtle expressive injury” cannot be entirely avoided when the government speaks, and suggests that the Establishment Clause jurisprudence would be much improved by abandoning any pretense to complete expressive neutrality.
The article, entitled “Must God Be Dead or Irrelevant: Drawing a Circle that Lets Me In,” appeared at 18 Wm. & Mary Bill Rts. J. 1. The abstract appears after the jump. Continue reading “Establishment and the Limits of Neutrality”
I have taken a week to think about how to blog about a session that I saw last weekend at the ABA Conference. The session was about using movies to demonstrate gender differences in negotiation, and I went to see what teaching tools might be provided. I was on the negotiation program track for the ABA, and had helped select this session for presentation at the conference, so I was really looking forward to it. Instead, the session became a very good example of the challenges in teaching about gender differences in negotiation.
The session started out with slides that listed how women communicate or how women negotiate. I think, in retrospect, that the speakers may have been trying to highlight some of the stereotypes about women from the 1970’s and ask whether these were still relevant but — without any introduction to what they planned to do, cites to the outdated research, or other signposting — it appeared that the speakers were presenting these comments as current and true (even if that was not their intention). When asked what research this was based on, the speakers stated that “this is what the research shows. ” As some in the audience continued to challenge further assertions about the research, the tone went downhill and unfortunately, rather than becoming a learning experience, became more of an argument, which continued even after the session. All this, of course, at a dispute resolution conference.
I wanted to unpack a few key things from this session. Continue reading “Gender Frustrations”
3L Douglas Hoffer has a new paper on SSRN describing and defending “PIPE financing” — a form of corporate financing that has taken off in the past fifteen years. PIPE financing permits corporations to raise money by selling equity through a two-step process that diminishes the regulatory burdens normally associated with public offerings.
PIPE deals have drawn negative comments from other scholars and the SEC, but Douglas thinks the critics have failed to appreciate the important benefits of PIPE financing. His paper, entitled “Quagmire: Is the SEC Stuck in a Misguided War Against PIPE Financing?,” will be published in Transactions: The Tennessee Journal of Business Law. The abstract appears after the jump. Continue reading “Put This in Your PIPE . . .”