This [i.e., engaging in the conversation started in this post] wasn’t where I’d planned to start, but since I’ve got some thoughts on the scholarship-practice divide I might as well add my two cents. I spent just over eight years in practice before entering academia, so I have some understanding for the practitioner perspective. My firm maintained subscriptions to many of the top law reviews, which I would browse as time permitted. My reactions ranged from “wow that’s really interesting!” to “wow that’s complete ivory tower BS!” to “you know, I think I can actually use that!” And use them I did. I distinctly recall, for example, discussing Alan Michaels’ “Constitutional Innocence” article in the Harvard Law Review at oral argument before the Minnesota Court of Appeals. Nobody laughed.
So I think there’s plenty of scholarship, even work done at relatively high levels of abstraction, that can be put to work in practice. Continue reading “Lawyers and Legal Scholarship”
In a post earlier in the week, Jessica Price highlighted Fastcase, the online legal database that will soon be available to members of the Wisconsin State Bar at no additional cost. The Marquette Law Library explored Fastcase over the summer and is in the final integration stages of a subscription that will allow law students and law faculty access to the complete Fastcase database. Continue reading “Fastcase Update: To Be Offered at Marquette Law Library”
When it rains, it pours. This week there has been a slew of developments in copyright law. The motion picture studios have sued RealNetworks over its RealDVD application, claiming that RealNetworks violated the license it signed to get the decryption keys to DVDs. Congress passed a measure designed to ease the pressure on small webcasters after the Copyright Royalty Tribunal suddenly increased their fees. Congress also passed a version of the PRO-IP bill, which, ignoring a district court judge’s call to reduce copyright penalties, actually adds to them by allowing civil forfeiture of computer equipment in certain cases.
But the development I want to highlight here is the apparent decision by a court in India that Scrabulous does not infringe on the copyright for Scrabble. (The name, however, was held to infringe on the Scrabble trademark.) I wrote a four-part series for Prawfsblawg back in August that analyzed the case and copyright in games generally. (Part I, Part II, Part III, Part IV.) Unfortunately the only news of the decision is from the Agarwalla brothers, the creators of Scrabulous, themselves; we don’t have the judge’s reasoning. But I’d be eager to see if it matches any of the points of my analysis.
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.