Ethan Ackerman was kind enough to respond to my recent post on ProCD v. Zeidenberg, in which I suggested that “the case for contracts somehow expanding copyright rights is vastly overstated, and perhaps illusory.” Sure, Ackerman’s post is critical, but I’m happy to generate even critical responses. Ackerman suggests that a recently filed case in the Virginia courts shows, allegedly contra me, that “there’s an open, ongoing and unsettled problem with parties attempting to reverse, by contract clause, an issue that is addressed and settled by federal copyright law.”
The problem is, that wasn’t my argument. Continue reading “Talk Back! with Bruce Boyden”
Last week, the Fourth District Court of Appeals in Wisconsin ruled on a case involving a testator (Edward Schunk) who committed suicide and the inheritance rights of the family who survived him. Apparently, Edward was on a one-day pass from a hospital when he was found dead in a cabin which he owned. The death resulted from a single, self-inflicted shotgun blast to his chest. His will left property to his wife, to his daughter from his second marriage, and to some (but not all) of his six older children who were not Linda’s children. Five of those older children challenged the inheritance by the second wife (Linda) and child from that marriage (Megan) on the grounds that they had aided Edward in committing suicide, and thus should be barred from inheriting under a Wisconsin statute that forbids inheritance by persons who unlawfully and intentionally kill the decedent. Linda and Megan denied providing any help to the decedent’s suicidal act, and asserted that Edward had taken his gun and gone to the cabin without their knowledge. Continue reading “Suicide and Inheritance: A New Ruling by the Wisconsin Court of Appeals”
Last week saw another round in the ongoing legal battle between the University of Wisconsin and the Madison campus’ Roman Catholic Foundation. In Roman Catholic Foundation v. Regents, 2008 U.S. Dist. LEXIS 72980 (W.D. Wis., September 24, 2008), the court addressed the University’s refusal to allow segregated fees (that portion of a student’s tuition reserved for the funding of student organizations) to be used for certain RCF activities that the University regarded as worship, proselytizing, or sectarian instruction. These activities involved programs such as spiritual counseling, training RCF student leaders, the purchase of a drum shield to be used by the RCF’s praise band, and the printing of instructional pamphlets on praying the Rosary.
District Judge Lynn Adelman of the Eastern District of Wisconsin, sitting by designation, entered a declaratory judgment “stating that the University may not categorically exclude worship, proselytizing or sectarian instruction from segregated fee funding unless it does so pursuant to a rationale that is reasonable in light of the purposes of the forum and viewpoint neutral.”
As far as this goes, it seems to me to be consistent with recent decisions of the United States Supreme Court holding that even highly sectarian religious speech may not be excluded from a public forum if is otherwise within the forum’s purpose. Continue reading “Of Speeches and Sermons”
As long-time baseball fans know, stadium groundskeepers have been using increasingly intricate mowing patterns to create fancy visual effects in the outfield grass. What they may not know is that the trend began here in Milwaukee at the old County Stadium in 1993. The whole story is detailed in this New York Times article. I wonder if the landscaping of new Marquette Law School building will prove similarly trend-setting?
As the calendar switches to October, readers will note two new features of this Blog. First, Judi McMullen takes over from Keith Sharfman as the Featured Blogger of the Month. Judi teaches and writes in the areas of family law, trusts and estates, juvenile law, alternative dispute resolution, and social science and the law. Second, we will have a featured question of the month for faculty contributors: “What should be the highest priorities of the next President in the areas of law that you teach?” Look for a series of responses from several different bloggers to this timely question over the course of the month.
In a first in the health care reform context, and in opposition to the Fourth Circuit’s holding in the Wal-Mart Bill case of RILA v. Felder, the Ninth Circuit has ruled in Golden Gate Rest. Ass’n v. San Francisco, No. 07-17372 (9th Cir. 9/30/08), that the San Francisco health care law is not preempted by ERISA.
From the BNA Daily Labor Report this morning:
The Employee Retirement Income Security Act does not preempt a San Francisco ordinance that requires medium and large employers in the city to make minimum health care expenditures on behalf of covered employees, either by paying into their own employee benefits plans or into a fund maintained and administered by the city, the Ninth Circuit holds . . . .
Writing for the court, Judge Fletcher says ERISA preemption is limited in areas that historically are matters of local concern, that employers subject to the city ordinance law lacked the sort of discretion that would render the program an ERISA plan, and that the ordinance does not “relate to” a benefit plan covered by ERISA.
The case has been watched closely by employer representatives and employee groups, which predicted the decision could have wide-ranging implications for the future of health care funding. San Francisco Mayor Gavin Newsom in a statement calls the ruling ”a huge victory for this city and the 46 million Americans who don’t have health insurance.” Business groups, however, call the decision “devastating” for small business owners.
Continue reading “Ninth Circuit: San Francisco Health Care Law Not ERISA Preempted”
The Sentencing Project has just published a new edition of Reducing Racial Disparity in the Criminal Justice System, a manual for policymakers that describes numerous best practices for addressing disparities. This publication should be of particular interest in Milwaukee and Wisconsin, which have some of the worst criminal justice disparities in the nation. As The Sentencing Project described in a May publication, blacks in Milwaukee are seven times more likely than whites to be arrested for a drug offense, the second-highest such disparity among the forty-three major American cities analyzed. Similarly, a state-level analysis by Human Rights Watch determined that blacks in Wisconsin are forty-two times more likely than whites to receive a prison term for a drug conviction, the highest such disparity among the thirty-four states studied.
Of course, to say that there are racial disparities is not to say the disparities are necessarily unwarranted. For instance, if it turned out that blacks committed serious drug crimes more frequently than whites, then at least some of statistical disparities might be warranted. Still, the magnitude of the racial disparities in Milwaukee and Wisconsin is so high, particularly in comparison to national norms, that there is good reason to believe we do indeed have a serious problem.
Some of my former students will remember the domestic-violence asylum case, Matter of R-A-, which had been pending in a sort of limbo state since January 2001. The R-A- case presents the issue of whether an immigrant may obtain asylum in the United States on the basis of her well-founded fear that she will suffer severe domestic violence if she is returned to her country, violence from which her country will not protect her. This week, Attorney General Michael Mukasey issued a decision directing the Board of Immigration Appeals to reconsider the case.
Continue reading “Attorney General Cancels Stay in Matter of R-A-, the Case of a Guatemalan Woman Seeking Asylum From Severe Domestic Violence”
If you are a member of the Wisconsin State Bar, beginning in November you will have free access to Fastcase. Fastcase is a searchable online database of federal and state law. The product overview at the Fastcase website makes the service look user-friendly. Its coverage is fairly deep too, including state cases back to 1950 or earlier.
I was wondering when a convenient but much lower-cost legal research service like this would become widely available. It seemed inevitable that it would eventually happen. I haven’t tried Fastcase yet, but I am going to do so and will follow up with my thoughts about the interface and more details about the coverage. In the meantime, I would be very interested to hear from anyone who already has experience using the service.
I’ve posted a few times on recent Armed Career Criminal Act cases (e.g., here). With several Supreme Court decisions last term on the scope of the ACCA, this has been an especially dynamic area of federal sentencing law. The cases nicely illustrate one of the fundamental problems with the ACCA, which is that Congress sought to single out certain categories of prior state convictions as triggers for the ACCA fifteen-year mandatory minimum, when each state criminal justice system has its own idiosyncratic structure, terminology, and practice norms. Congress did not, and could not, take into account the particularities of fifty different systems when drafting the ACCA. As a result, the courts have faced a steady stream of difficult cases requiring them to determine which types of prior convictions from which states actually count as a “violent felony” or a “serious drug offense” (three of which trigger the fifteen-year minimum). The Supreme Court’s May decision in United States v. Rodriquez provides a good example of the difficulty. Continue reading “What Is an “Offense”?: Another ACCA Puzzle for the Courts”
Before last night’s presidential debate, the pundits were saying that Obama had to be less “professorial” and “nuanced” than in his prior debates. And the post-mortems today seem to indicate that he was successful on this count. Call it self-serving, but I dislike the implication that being professorial should be regarded as disabling for a presidential candidate. To be sure, this view has deep roots in our political culture. For instance, in lieu of watching the debate last night, I attended the Milwaukee Repertory Theater’s production of a 1945 play, State of the Union, in which a neophyte presidential candidate is repeatedly urged by his handlers to avoid specifics and dumb down the language in his campaign speeches. I take it that this view reflects, at least in part, an assumption that uninformed voters want to be reassured that the world is a simple place; that public policy questions have clear, easily comprehensible right answers; and that their own intuitive, emotion-driven responses are as sound a basis for making policy judgments as expertise and rigorous analysis. The assumption may or may not be true–perhaps uninformed voters would rather be educated than pandered to–but indulging the assumption ultimately does a disservice to the quality of our political culture and democratic processes. Continue reading “A Professorial President?”
Earlier this week, I had the chance to participate together with Scott Hemphill and Dan Crane on an interesting conference panel devoted to the antitrust implications of settling a patent suit between rival drug makers. Here is a short version of the issue we discussed.
Imagine someone suing you and then offering to pay you a few million dollars if you agree to settle the case. Sound strange, impossible, or just plain crazy? Well maybe it is for the average citizen. But strange as it may sound, for generic drug manufacturers this is not merely possible; it actually occurs with some frequency, as is documented empirically in Scott’s excellent working paper and in Dan’s important earlier work on the subject. Continue reading “Patent Settlements as Antitrust Violations”