Dislike?

Two new lawsuits involving everybody's favorite online social network, Facebook.

1)  Plaintiffs' lawyers in California have sued Facebook® because it allows minors to "like" things.  Really.  As reported by fastcompany.com:

The suit, filed today in Los Angeles County Court, accuses Facebook of using the names and images of minors to endorse products--a violation of California law--via its "Like" button. Under the state's law, minors cannot endorse products or services without consent from a parent or legal guardian. When young users of the social network hit the "Like" button, their profiles are updated with this interest for all the public to see.

Lawyers argue that this is tantamount to an endorsement, and that underage members must obtain permission from a legal guardian in order to use the "Like" button. 

2)  Not to be outdone, Facebook's lawyers have sued a start-up (based in Chicagoland) called Teachbook—which apparently runs a community website for teachers—for trademark infringement.  Facebook's argument is that the "-book" suffix is confusingly similar to Facebook's given that both companies operate online social networks.  For a sarcastic layman's response, see here.  

So both students and teachers are in court with Facebook.  Who's next?

Throw the bums out?

Interesting article in the Washington Post about a campaign in Iowa to unseat three members of the Iowa Supreme Court, primarily in response to that court's unanimous decision last year overturning the state's law banning same-sex marriage.  Supporters of the campaign say they are trying to send a message about "judicial activism":

"We need to vote them off the bench to send a message across Iowa that we, the people, still have the power," said Bob Vander Plaats, a Republican politician who is spearheading the campaign. "Not only will it send a message here in Iowa, but it will send a message in California, in Arizona and across the country that the courts have really taken on too much power."

But Iowa has a "retention election" system for judges--so the three judges are not actually running against anyone.  Iowa voters will simply have a chance to vote them off the bench, and, in that case, they would be replaced by the governor after a merit selection process.

Some people think the campaign is an inappropriate use of the retention election process:

"I've used the word 'vengeance' before in describing what this campaign is about," said [Former Supreme Court justice Mark McCormick], now a lawyer in private practice. "I think it is a challenge to judicial independence. There's an effort being made to succeed in turning out of office these three good judges for an inappropriate reason."
He and others worry it will politicize Iowa's court system and have a chilling effect on judges nationwide.

My own guess is that the temperamentally conservative Iowa electorate will ultimately reject the campaign and vote to retain the justices.   I also think the nature of this campaign highlights the benefits of a retention-election system over a regular judicial election.  If these were regular judicial elections, this campaign would have drafted ideologically driven lawyer-candidates to run against the justices, who in turn likely would have forced awkward debates about decisions in specific cases.  Instead, the Iowa campaign is more or less forced to cloak itself in an general attack on "judicial activism"--which at least strikes me as a legitimate debate to have voters weigh in on in a judicial contest.

Mr. Gillette:  what are you thoughts, as a native Iowan? 

Blago abandons client files

Oops.

This raises an interesting question:  Blago had clients?

Just a little more on birthright citizenship

The relevant portion of the 14th Amendment defines a US citizen as anyone "born or naturalized in the United States, and subject to the jurisdiction thereof."  Is there an argument that the children of illegal immigrants do not qualify as citizens under this clause because they are not "subject to the jurisdiction" of the US?

Over at Balkinization, Professor Mark Tushnet argues that the answer is at least non-obvious.  He acknowledges that "the Supreme Court said 'No' in Wong Kim Ark (1898), but, notably, over two dissents."  Of further note, I think, is that this same Supreme Court decided Plessy v. Ferguson just two years earlier (with Justice Harlan famously dissenting in that case as well).  So maybe they were just in a rut.  Tushnet's broader point is seems to be that liberals shouldn't invoke the "living constitution" only when it suits their ends, but should apply the same interpretive analysis in every case.  Which means that "subject to the jurisdiction" might have some bearing on birthright citizenship after all.


Indeed, much has changed since 1868 (when the 14th amendment was ratified) and 1898 (when Wong Kim Ark came down).  For one thing, we have an enormous welfare state that has drastically altered the relationship between the individual and the state.  The availability of welfare benefits provides perhaps too much incentive for the poor huddled masses to flock to our shores.  This is one reason, clearly, that we restrict immigration more than we used to, as a policy matter.  To someone who believes in a living constitution, it should probably affect the interpretation of the 14th Amendment as well.

(Tushnet's point brings up a point that has always bothered me:  it seems that if the constitution is living, it is hanging out in Manhattan, where it "do[es]n't know one Bush supporter."  Shouldn't we have to worry that, like many other living Americans, the constitution might shrug off its youthful naivete and become a conservative in its dotage?  And if the constitution really changes with the times, how can anyone criticize President Bush for working to expand executive power after 9/11 changed everything?)


While I'm finishing up on this topic, here are a couple other interesting links:


1)  The New York Times does one of its "Room for Debate" things on birthright citizenship.  Except that apparently there is no room for debate on this one, because all four contributors say basically the same thing.  (The commentators are probably all buddies of Arthur Miller.)  (CORRECTION:  since I read the piece earlier today, they have added a dissenting voice (Mr. Camarota).)

2)  Over on PrawfsBlawg, Rick Hills and Peter Schuck (whose op-ed I posted about the other day) have a spirited exchange on the topic. 

Blogger convicted for threatening 7th Circuit judges

A right-wing New Jersey blogger was convicted at his third trial Friday of making threats against three federal judges in Illinois in retaliation for a ruling supporting gun control. 

Let's try to avoid this on the Gillette-Torvik blog.

Blago conviced on one count: Lying to the FBI.

Jury hung on all other counts, and all counts against his brother.

This is the great thing about being a prosecutor:  a conviction on one count is pretty much just as good as a conviction on all 24.

More on Birthright Citizenship

Yale law professor Peter Schuck has a thoughtful op-ed in the New York Times about birthright citizenship.  I agree with his sentiment that "[t]his question is much harder than the zealots on both sides suggest."  While there is something incongruous about granting birthright citizenship to a child whose parents snuck into the country in open violation of its immigration laws, we do not generally punish children for the sins of their parents.  This is a pickle, especially to the extent that allowing birthright citizenship gives people from poor countries a powerful incentive to come to our wealthy country and take advantage of our (relatively) generous welfare benefits.

But what parent wouldn't do this for their child, if they could?  It is pretty easy to justify committing the purely political crime of crossing a political border (i.e., an imaginary line) without papers if it means a better life for your children.  (In other words, Wendy Murphy's argument that illegal immigrants are using their children as a "thing" that they "barely love[]" is exactly wrong--to the extent that birthright citizenship motivates foreigners to come here to give birth, the motivating factor is the human desire to provide a better life for their children.  This is the purest love there is.)

Fear of strangers and foreigner cultures is an innate human characterisitc, I think.  But openness to immigration is, or has been, a uniquely American characteristic.  As Professor Schuck notes, illegal immigration and "anchor babies" were not problems foreseen when the 14th Amendment was ratified because "at the time, federal law didn’t limit immigration, so no parents were here illegally."  This was the regime in place when many of our ancestors arrived here.  We should be proud of this history, and have some humility about the circumstances that made us American citizens.  For must of us, we are American simply because we were born here.  And we were born here, many of us, only because our ancestors arrived when this country was taking all comers.  (For most of the rest of us, our ancestors arrived here when the country was taking all comers except racial and ethnic "undesirables"--a fact which necessitates its own kind of humility.)

I tend to take it on faith that immigrants are actually an unalloyed good for this country.  Immigrants--whether "illegal" or legal--are, by nature, industrious and willing to take risks.  So they have within them the stuff of Americans.  We should make immigration easier, not harder.  My view is that any immigrant has six weeks to get a job here, and if they get one then we should say "welcome to America, here are your papers."

The Anchor-Baby Myth

One argument of Wendy Murphy's that I won't even try to defend is her rant about illegal aliens who supposedly come to the US to have babies, and then use these (citizen) children to get some sort of immigration advantage:

I know we're talking about babies, and it's hard to be tough on babies, but let's remember, we're talking about illegal aliens coming to this country for the purpose of birthing a child, not because they love the kid, but because they want the child to provide them with the benefits of U.S. citizenship. In other words, that's not the kind of child who's going to be raised well and be a productive citizen. The child is barely loved. It's more like a thing and a commodity than a human being.

This argument--that illegal aliens are soulless automatons who procreate solely for the purpose of a green card--is ridiculous on every level.   It's like an Onion satire of a conservative argument.  Not just because it implicitly dehumanizes both the parent and child--but also because so-called anchor babies actually confer practically no rights on their illegal-alien parents.  If an illegal alien who has a citizen child is picked up by immigration authorities, the child's existence is not a defense to deportation (unless the alien can "prove ten years of good moral character and that deporting her would be an exceptional and extremely unusual hardship to her US citizen child").  What will happen in almost every case is that parent will be deported and the child will go with the parent.  Why?  Because the parent loves its child and doesn't want to leave it behind in a foreign land.

So, to my mind, recent rhetoric about amending the 14th Amendment to restrict the right of birthright citizenship is aimed at a problem that doesn't really exist.

But see:  this recent article about Chinese nationals purposely planning to be in the US when they give birth so that their children will have the gift of US citizenship.  This is, perhaps, a whole other kettle of fish.

FULL DISCLOSURE:  I played a very, very small role in doing some prop bono research on this topic at my last job.

Wendy Murphy, Esq.: Lawyer, Pundit, Bullshitter.

Mr. Gillette:  Great post on lawyer-pundit Wendy Murphy!  This is the first I've heard of her, as I don't catch much cable news these days.  In fact, people like Ms. Murphy are the main reason I stopped watching cable news years ago.

But I am going to do my best to defend Murphy.  In her own defense, this is what she says:

Copyright for fashion?

An interesting op-ed in the New York times opposes Sen. Schumer's bill to allow fashion designers to copyright their works in some circumstances.   I have to confess I'm one of the people who assumed that they already could copyright their designs.  In fact, I faintly recall a famous contract case that seemed to give me that impression.  But I guess I was wrong.

Thoughts?

How to succeed in television without really trying.

Criminal justice reporter Radley Balko has an interesting post on how to succeed as a television pundit in the twenty-first century: just lie or make stuff up.

Mr. Balko's post deals with Wendy Murphy. Ms. Murphy is a "former child abuse and sex crimes prosecutor who teaches at New England Law/Boston." She also apparently makes a habit of going on TV and, at a minimum, making stuff up. As Mr. Balko details, she claims that only 2 percent of sex offenders are on sex offender registries (there doesn't appear to be a study supporting that claim); that half of the inmates in California prisons are illegal immigrants (the actual number is around twelve percent); a series of demonstrably false statements about the Duke lacrosse players rape case (for which Fox News took a swipe at her); and propounds a belief that illegal immigrants do not love their children but instead view their children as commodities.

A blog post or media story about pundits telling lies or making stuff up would normally not interest me. Such a story would seem to fall into the category of "dog bites man". Except that Ms. Murphy is an active attorney in Massachusetts and therefore subject to the Massachusetts Rules of Professional Conduct. Those rules frown on lawyers making false statements. For example, Rules 3.3 and 3.4 prohibit a lawyer from making false statements in court or from offering evidence that a lawyer knows is false. Additionally, under Rule 7.1 a lawyer shall not make false or misleading statements about the lawyer's services. Rule 8.1 prohibits a lawyer from making a false statement in connection with a bar admission application or a disciplinary matter. Rule 8.2 prohibits false statements about the qualifications or integrity of judges, magistrates, or candidates for judicial office.

You may be saying to yourself, "O.K., there is a general policy towards not lying. But, Ms. Murphy hasn't violated any specific rule." That leads us to Rule 7.3, which says that "in soliciting professional employment, a lawyer shall not . . . shall not make a false or misleading communication." If programs on which she appears ask Ms. Murphy what she is going to say before they decide to bring her on, this rule may cause Ms. Murphy some trouble. Since we don't know how she solicits work, the charitable thing may be to assume she doesn't tell falsehoods prior to getting on the program and making stuff up.

Ms. Murphy's antics raise some questions. If a lawyer is going to go on television (or posts on a blog about the law), what is the scope of their obligation of candor (if any) and what are people's expectations for truth from lawyer pundits? While, I know that lawyers compare unfavorably to catfish, I prefer that members of our profession not go on TV and give folks even more reasons to dislike us.

Taking their time.

I cannot argue with you. The jury is taking their job very seriously. According to the Chicago Tribune, they have only deliberated on half the counts thus far. The jury has not deliberated on the 11 wire fraud counts. Also, they only agree on 2 of the counts they have considered. All of that sounds like it is good for the defense. However, maybe the jury hasn't voted on the wire fraud counts because they consider them more straightforward. After all, the wire fraud counts are the counts based on the surveillance tapes.

Start making sense

I was going to title this response to your latest post "Stop Making Sense" as a shout-out to the Jonathan Demme film about the Talking Heads. But I decided that gave Professors Eastman and Bradley too much credit. The short asnswer is that I don't think that either of them are making any sense.

If I understand the argument, Judge Walker, who may or may not be gay, would not, if he is gay, have to recuse himself because he is gay. He would, however, have to recuse himself because, as the two professors put it, he "'attends bar functions with a companion, a physician,' and may therefore be in a stable homosexual relationship of the kind that could lead to marriage". Judge Walker may be doing something that could lead to something else so he should recuse himself because of the combination of those two contingencies. By that logic we could say "Judges may make a salary that allows them to save money that could lead to judges opening savings accounts at banks so judges should recuse themselves from any case involving banks." Not just banks where they, you know, actually have an account, but all banks. Or to use the Loving v. Virgina comparison, "The married justices may get divorced and could then have an interest in marrying a woman of a different race so the married justices should recuse themselves."

Assuming their supposition that a gay judge wanting to get married would have to recuse himself, and assuming that Judge Walker is gay and has a companion, why does it follow that he has an interest in getting married? Lots of heterosexuals are in long-term relationships but don't intend, or want, to get married. Is there any evidence, other than the fact that he may have an implied date on Saturday night, that supports the argument that Judge Walker wants to get married?

Presumably, if Judge Walker was inclined to marry a man, perhaps a physician, he could have done so in 2004, when San Francisco was granting marriage licenses to gay people. He could also have done so in the wake of the California Supreme Court decision in In re Marriage Cases (43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384 (2008), when the California Supreme Court held that California could not forbid same sex marriages and ordered county clerks to start issuing marriage licenses gay couples who wished to marry. I suppose he could have also travelled to Vermont, Connecticut, New Hampshire, Iowa, or Massachusetts and gotten married in one of those states if he wished to get married. The fact that he didn't suggests that he isn't particularly interested in marrying. Accordingly, per Professors Bradley and Eastman, he doesn't need to recuse himself.

Not a physician!

I was going to let you have the last word on the Judge Walker (non)-issue--because I agree with pretty much everything you say--but then I read this:

Is any of this [Walker's supposed sexual orientation] relevant to Judge Walker's ruling striking down Proposition 8?

Well, as University of Notre Dame law Professor Gerard Bradley recently noted, the mere fact that Judge Walker may be homosexual would not necessarily have required recusal. But the fact that he "attends bar functions with a companion, a physician," and may therefore be in a stable homosexual relationship of the kind that could lead to marriage, is an entirely different matter.

His partner is a physician?!  Well, that does it for me.

More seriously, by this logic, Clarence Thomas (whose wife is white) would have had to recuse himself if he'd been on the Supreme Court when Loving v. Virginia was decided, but Justice Thurgood Marshall would not have. 

Does this make any sense?  What do you think -- does Professor Eastman make any good points?

Blago jury deadlocked?

Some people have been wondering what is taking the Blago jury so long.  Yesterday, in an email to Mr. Gillette, I speculated that they could be hung up on a few of the two dozen counts, or they could be struggling with the counts against Blago's brother Robert.  Today, we got some evidence to support this speculation:  the jury is apparently deadlocked with respect to at least some counts.

In short, the jury appears to be taking its job seriously and is going through all the counts against both defendants separately.

A response to one of Mr. Torvik's questions.

A few days ago you posed some questions related to the result in Perry v. Schwarzenegger. While I have still not finished reading the 136-page order, I am prepared to answer one of your questions. Specifically, whether it matters that Judge Walker may be gay.

As an initial matter, it is worth noting that, as Tracy Clark-Flory points out, the blog entry used to support the theory that Judge Walker is gay is not going to make Woodward and Bernstein lose sleep that they might be losing their place in the pantheon of reporting.

But even if the speculation about Judge Walker is correct, the answer to your question "Does it matter, at all, to anyone, that Judge Walker is, apparently, gay? " is "Not unless you are a special interest group that is using the gay marriage trial to raise money." (I'm talking about you National Organization for Marriage and American Families Association). For the rest of us the answer has to be "no".

The answer is no because if we reversed the sexual identity of the judge would anyone, other than special interest groups, be claiming that a straight judge needs to recuse himself? Of course not. Unless we can somehow devise a method by which judges without sexual preferences are the only ones who can hear sexual orientation cases; and judges without gender are the only ones who can hear gender discrimination cases; and judges who don't belong to any racial group are the only ones who can hear race discrimination cases, we can't find membership in this sort of group to be a disqualifying factor. On a side note, it would be interesting to know if any of the people who think the answer is "Yes" also think that Justice Thomas should recuse himself from racial discrimination cases.

Is it possible that Judge Walker's sexual orientation gave him a degree of empathy that a straight judge his age might not have had? I suppose it is. But, Judge Walker's empathy towards gay people, if he has any, might also spring from the fact that gay people are seen more sympathetically by society in general. For evidence of this, one need look no further than to compare the Supreme Court opinions in Bowers v. Hardwick with Lawrence v. Texas.

In Bowers, Justice White described the issue facing the Court as follows:

The issue presented is whether the Federal Constitution confers a fundamental
right upon homosexuals to engage in sodomy, and hence invalidates the laws
of the many States that still make such conduct illegal, and have done so
for a very long time.

I am not the first person to note that as soon as you read the issue, you know that the state is going to win the case.

In Lawrence, Justice Kennedy writes things like this: "the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." He also wrote "the intimate, adult consensual conduct at issue here was part of the liberty protected by the substantive component of the Fourteenth Amendment's due process protections." And then this kicker, "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."

If a seventy-year-old man probably straight man can write the opinion in Lawrence, and not be told he should have recused himself, it is hard to make a rational argument that a sixty-six-year-old possibly gay man can't reach the same conclusion without having to rely on an impermissible bias.

I keep forgetting to put titles on my posts.

Let me first say that I am impressed that you do research for these posts.  I just make stuff up.  To wit:

The first thing I thought of when you nominated Ken Griffey Jr. for a judgeship was that he'd be perfect since he known for sleeping on the job.  Then I started wondering about other baseball figures who might be good on the bench.  What about an umpire?  Or is Chief Justice Roberts close enough?  If not, how about Jim Joyce?  I can see it now:  Attorney Gillette has a perfect trial going, but Judge Joyce blows it by overruling a perfectly valid objection to an improper "golden rule" argument at the end of closing arguments...  Attorney Gillette just smiles wistfully, but he knows justice--and history--has been denied.

Now with sports.

I was doing a little research for a future post about the Ponzi scheme orchestrated by Thomas Petters, when I found something you might find interesting.

I can't remember whether we read it in criminal law or criminal procedure but at some point we read United States v. Foster, a case in which the United States Court of Appeals had to determine what the phrase "to carry a gun" meant. The dissent in Foster closes with a quote from Gavvy Cravath. Cravath was a Justice of the Peace and City Judge for Laguna Township California. His jury instruction for stealing was supposedly this:

Ladies and gentlemen of the jury. The defendant is charged with stealing $50 from Mr. Jones, I certainly hope that you have lived long enough to know what stealing means without my spending a couple of hours telling you the fine legal distinctions in the law on theft. Stealing means exactly what it says. The district attorney has the responsibility of proving that the defendant is guilty of theft beyond a reasonable doubt and to a moral certainty. If he hasn't carried that burden, you are to acquit the defendant. You have heard the evidence and are the only ones who can decide who is telling the truth and who is not. Now retire, deliberate and come to a decision.

Anyway, the thing that struck me in re-reading the case is that Judge Cravath was, as the dissent puts it "the first acknowledged home run king before Babe Ruth." That doesn't really put Judge Cravath's accomplishments in the right light. He led the National League in home runs, six times. It took 32 years for Ralph Kiner to beat that accomplishment. After he left baseball (his final season was with the Minneapolis Millers), he was elected judge despite never going to law school or, apparently, practicing law. Maybe recently retired four-time home run champ Ken Griffy Jr., will take a similar post-baseball career path.

Recusal blues.

I agree with you, Mr. Freedman, and Judge Motley. I suspect the reason that the Prop 8 defenders did not move for recusal was not that the recusal issue was settled. I bet that the Prop 8 defenders thought they had the right judge for the case. According to the article in the Times, Judge Walker's nomination to the bench was controversial because he seemed to tolerate discrimination. Indeed,those concerns stalled Judge Walker's nomination for two years.

He was criticized for being a member of a private club that had refused
membership to blacks and women; gay rights advocates also denounced his
representation, as a private lawyer, of the United States Olympic Committee in
its efforts to keep another organization from calling itself the Gay Olympics.

Even assuming that Judge Walker's sexuality was an "open secret", I bet the Prop 8 defenders thought Judge Walker was a good draw for them. They guy belonged to a discriminatory club and had sued gay activists.

There is no question that having an openly gay justice on the Supreme Court would be a big step for gay rights. Statistically speaking, it seems likely that at least one of the previous 111 justices was gay. Having another justice in the closet, if our newest justice is in the closet, isn't really a step backwards, it is just standing still.

The problem with being having a justice, or any public official, in the closet is that the fact they are in the closet suggests that they are afraid of being exposed. That fear, like any fear I suppose, makes them susceptible to pressure from anyone who threatens to expose them. Thus, the decision to stay in the closet, at least in 2010, seems like an excercise in poor judgment.

More on Judge Walker

One of my random questions about the Prop 8 case was whether it mattered at all that Judge Walker is supposedly gay.  In a short profile of Judge Walker, New York Times reporter John Schwartz address this issue at some length:

[S]everal published reports have stated that [Judge Walker] is himself gay. In February, The San Francisco Chronicle called it an “open secret.” Critics have argued that his sexual orientation was a source of bias that should have disqualified him from hearing the Proposition 8 case. Judge Walker has declined to discuss the matter.

Monroe H. Freedman, an expert in legal ethics at Hofstra Law School, said that while bias could lead to recusal in rare cases, “you could say, ‘If a gay judge is disqualified, how about a straight judge?’ There isn’t anybody about whom somebody might say, ‘You’re not truly impartial in this case.’ ”

Mr. Freedman cited a 1975 opinion by Judge Constance Baker Motley of Federal District Court, an African-American jurist who was asked to disqualify herself from a lawsuit alleging unlawful discrimination. “If background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others,” she wrote.

I agree with Mr. Freedman and Judge Motley.  But it seems to me there's a deeper point here.  Apparently this issue is so well-settled and accepted that the attorneys defending Prop 8 didn't even think it was worth raising.  This is another sign of how much our culture has changed in its treatment of gays--now a gay judge presiding in a court trial over a momentous issue of gay rights is simply unremarkable, even to zealous advocates.  However the Prop 8 comes out after the appeals, I think the fact that a gay judge was allowed to act as the trial judge without so much as a peep is a sure sign the campaign for gay rights and gay marriage will ultimately succeed.

This brings to mind some of the early controversy surrounding Justice Kagan's sexual orientation.  As you'll recall, there was a report on cbsnews.com stating that Kagan is gay.  Kagan said nothing, but the White House criticized the report as containing "false charges."  Then there was a lot of teeth-gnashing among pundits about whether it should even matter.

I always thought it--the truth about Kagen's sexuality--mattered, though not to whether she is qualified to serve on the Supreme Court (as she clearly is).  If we are actually supposed care about diversity or "empathy" -- and maybe we actually aren't -- then it matters.  Moreover, having an openly gay member of the Supreme Court would be another big step for gay rights, no?  On the other hand, another closeted member of the Supreme Court would seem to be a step back.  Either way, the truth matters.

Purpose of candidate statement of purpose

Mr. Gillette raises some interesting points about the "NOT the 'whiteman's bitch'" case.

Why are independents allowed to include a "statement of purpose" but not Republicans or Democrats?  I think this makes sense.  Everyone knows what a Republican is, and everyone knows what a Democrat is--by running under the banner of one of these parties, a candidate is effectively adopting a well-known statement of purpose.  But when someone is running as neither a Republican or Democrat, a voter is likely to ask, "what's this all about?"  So I think it makes sense to give the independent candidate an opportunity to describe, succinctly, what she's all about.  The alternative, I think, would be to eliminate any party identifications from the ballots altogether.  I think this is why you are unlikely to see a First Amendment challenge by the major parties:  this is kind of a gift to the independent candidates, to prevent them from complaining too much about the big advantage that Ds and Rs get merely by getting to put the D or R next to their name on the ballot.  [Contrast this to judicial elections, in Minnesota at least, where one of the candidate gets to put "incumbent" next to his or her name, and other candidates get only their name on the ballot.]

I think we could have a lot of fun trying to come up with 5-word "statements of purpose" to describe the Republican and Democratic parties.  I'll start, for the Republicans:  "PROUD to be a whiteman."

I am not dictating a legal theory.

Actually, I thought there were two interesting things about the story. Make that two additional interesting things about the story. As a former resident of Milwaukee, I was struck by the fact that, unlike the major parties, "independents are allowed a five-word statement of purpose on the ballot to explain to voters what their candidacy is about." I lived in Milwaukee for 16 years after I became legal voting age and I cannot remember ever seeing a statement of purpose from a candidate on a ballot. So, I assume the statute or rule allowing the statement is relatively new or I have poor powers of observation. If the former, I wonder how the rule got passed. One would think that support of at least some major party members was needed and that they would want a statement of purpose by their names as well.

The other thing I thought was interesting was that, according to the article, the decision to not allow Ms. Griffin to use her preferred statement of purpose was made by a single staff member of the Wisconsin Government Accountability Board. Ms. Griffin appealed that decision to the actual board. The board voted 3-2 in favor of Ms. Griffin. However, by state law, the board can only act, in this case overturn its staff member's decision, if 4 of the members agree. Initially, I thought why make a board that needs a super majority to act? But as the second link makes clear, the board has 6 members so 4 is a majority if all vote. In Ms. Griffin's case, the question becomes why give a board member who doesn't show up a veto power over the board? Shouldn't it be a majority of voting board members? Isn't this especially true when all the board is doing is supervising its staff?

In any event, I hope we haven't heard the last of this case. Ms. Griffin has an interesting speech issue. As one of the board members noted, her position statement, while offensive, is not obscene or pornographic. One also wonders if the rule or statute allowing the position statement for independent candidates but not major party ones could stand a constitutional challenge. It certainly discriminates based on the identify of the speaker. Normally, First Amendment jurisprudence doesn't allow that.

Setback for "NOT the 'whiteman's bitch'" party

The Milwaukee Journal-Sentinel reports that Ieshuh Griffin has failed, for the moment, in her effort to sue over her failure to get on the ballot for Wisconsin state Assembly under the banner of the "NOT the 'whiteman's bitch'" party.  She brought her action as a habeas corpus petition, but she is not in custody.  So the judge dismissed the case, with leave to file under a proper theory.  Griffin's reaction:

He [the judge] cannot dictate my legal theory. I think this is a prejudicial delay . . . This constitutes a judicial disability, and he has to recuse himself. He's infringing on my access to the court.

Perry v. Schwarzenegger

Today, Judge Vaughn Walker ruled that the gay-marriage-banning constitutional amendment that California's voters adopted last fall is unconstitutional under the United States Constitution.  It is a momentous decision--the first to find a right to same-sex marriage in the U.S. Constitution.  Here are some random thoughts and questions (with thought-provoking links!).

• Do we think that Judge Walker's emphasis on the "facts" will make it any harder for the 9th Circuit or Supreme Court to overturn this decision, as some are speculating?
• Is Judge Walker correct that same-sex marriage is not really a significant social change?
• Is Judge Walker's opinion too "maximalist"?
• Is it still too soon for this kind of lawsuit?
• Do we agree with Dahlia Lithwick "that what really won out today was science, methodology, and hard work"?   (What she actually means, apparently, is that the plaintiffs had much better lawyers who did a much better job trying their case. Certainly we can agree that that matters.  But that's not really "science.")
• Is there any tension between the progressive ideal of (as Lithwick puts it) "the right to determine one's own humanity" and the equally progressive ideal of "we're all in this together"?  I think there might be.
• Does it matter, at all, to anyone, that Judge Walker is, apparently, gay?
• Does anyone doubt that Justice Kennedy will find room in his big, mushy heart to make sure the constitution allows gays to marry?
• I am in favor of same-sex marriage, as a matter of policy.  But -- without doing any real thinking or examination of the constitutional issues -- I have to admit I find it a little bit hard to believe that the U.S. Constitution forbids states from banning same-sex marriage.   

Whew!

The New York Times reports some good news on the gulf oil spill:

The government is expected to announce on Wednesday that three-quarters of the oil from the Deepwater Horizon leak has already evaporated, dispersed, been captured or otherwise eliminated — and that much of the rest is so diluted that it does not seem to pose much additional risk of harm.

This Too Shall Pass

Although I was aware that George Harrison had been found guilty of plagiarizing "My Sweet Lord," I confess I've never investigated the details of the case.  So thanks for the link to Judge Owen's opinion in that case. 

I think you are right that Judge Crabb misused that case.  In fact, she seems to use the trial-lawyer trick of the "overly broad and out-of-context paranthetical synopsis."  In her synopsis, which you quote, she boils the "My Sweet Lord" holding down to:  "George Harrison had access to tune he used for 'He’s So Fine'; therefore, even if copying was subconscious, it amounted to infringement."  In Judge Crabb's opinion, "access" clearly means "had at his disposal."  That is, since Holguin surely knew about the existence of the old Spawn issues (if not their content), he had "access" to them.  But the "access" Judge Owen was talking about was of a different kind altogether:

What happened? I conclude that the composer, in seeking musical materials to clothe his thoughts, was working with various possibilities. As he tried this possibility and that, there came to the surface of his mind a particular combination that pleased him as being one he felt would be appealing to a prospective listener; in other words, that this combination of sounds would work. Why? Because his subconscious knew it already had worked in a song his conscious mind did not remember. Having arrived at this pleasing combination of sounds, the recording was made, the lead sheet prepared for copyright and the song became an enormous success. Did Harrison deliberately use the music of He's So Fine? I do not believe he did so deliberately. Nevertheless, it is clear that My Sweet Lord is the very same song as He's So Fine with different words, and Harrison had access to He's So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.

(footnotes omitted, emphasis added).  Harrison's "access" was not abstract or imputed -- it was subconscious:  knowledge of "He's So Fine" actually resided in his own mind, he just wasn't aware of it.  This is different from the speculative "access" that Holguin had to the Spawn issues with Angela in them.

That said, it seems to me that this lower level of access should suffice at least to let discovery go forward.  In other words, it may be that speculative or imputed "access" isn't enough to actually prove copying, but it is enough to let the plaintiff look for evidence of actual "access" in the form of actual (even subconscious) knowledge about the prior character.  Moreover, ultimately I agree that the similarity among the characters is fishy enough to warrant discovery, particularly given the history of the case.

A win for Neil Gaiman

The long-running dispute between Neil Gaiman and Todd McFarlane over the ownership of some characters related to the "Spawn" comic book gives "Bleak House" a run for its money. They have already tried one plagiarism case and appealed the result to the Seventh Circuit. Gaiman won the first case and seems in pretty good shape with this new order. In the interest of full disclosure, Neil Gaiman is one of my favorite authors. Todd McFarlane is not.

Given your fondness for the Beatles and Billy Preston, I am surprised you didn't mention that Judge Crabb cites to Bright Eyes Music Corp., v. Harrisongs Music, Ltd., 420 F.Supp. 177 (S.D.N.Y. 1976), the George Harrison plagiarism case. In that case, Harrison was found to have plagiarized the song "He's So Fine" when writing "My Sweet Lord". Harrison claimed that the melody was written while he was "vamping" with Billy Preston. However, the trial court found that Harrison, who had heard "He's So Fine", had subconsciously taken the melody because he knew that it was melody that would be a hit.

In the Gaiman case, Judge Crabb gives the Harrison case a broad reading. Harrison had actually heard the song. But the case is cited as follows:

Brian Holguin, the writer of the Dark Ages (McFarlane) Spawn series, testified at trial that he made no effort to base his Dark Ages (McFarlane) Spawn on the character co-created by plaintiff and defendant. It is irrelevant whether he did or not; what is relevant is that he had access to Medieval (Gaiman) Spawn before he created his version of the middle ages knight. JCW Investments, Inc. v. Novelty, Inc., 482 F.3d 910, 915 (7th Cir. 2007) (“copying may be inferred where the defendant had access to the copyrighted work”); Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F Supp. 177 (S.D.N.Y. 1977) (holding that George Harrison had access to tune he used for “He’s So Fine”; therefore, even if copying was subconscious, it amounted to infringement).

Merriam-Webster defines access as the "freedom or ability to obtain or make use of something". Access can't be the right word, can it? Use of the word access suggests that it isn't whether someone actually made use of something but whether they could have. To the court it doesn't seem to matter whether Holguin actually read Gaiman's one issue of the "Spawn" comic series and three issues of "Angela". Instead, it just matters that he could have read them. But Harrison actually heard the song. It wasn't that the song existed prior to Harrison's song and he could have heard it.

The other part of the order I find a little strange is when the Judge writes:

If defendant really wanted to differentiate the new Hellspawn, why not make him a Portuguese explorer in the 16th century; an officer of the Royal Navy in the 18th century, an idealistic recruit of Simon Bolivar in the 19th century, a companion of Odysseus on his voyages, a Roman gladiator, a younger brother of Emperor Nakamikado in the early 18th century, a Spanish conquistador, an aristocrat in the Qing dynasty, an American Indian warrior or a member of the court of Queen Elizabeth I?

This is akin to saying that if Harrison had really wanted to not copy "He's So Fine" he would have written a funk song, or a concerto.

My quibbles aside, given the contentious history of the parties, it would not surprise me if McFarlane was trying to create characters as close as he could to Gaiman's creations without having to pay Gaiman. The fact that McFarlane violated his own rules regarding how often Hellspawn appear is a bad fact for the defendant. Gaiman certainly seems entitled to the discovery he wanted in his motion to compel.

Comic book characters "spawn" copyright case

The Onion AV Club's Newswire is not my normal source of legal news, but it has an interesting story about a comic-book copyright case being fought out in the Western District of Wisconsin (Judge Crabb).

Apparently writer Neil Gaiman created a new character named Angela when he guest-wrote an issue of Seth Todd McFarlane's popular comic book Spawn.  When that character became a regular, Gaiman sued for and obtained joint ownership of the character.  Now Judge Crabb has ruled that three other characters are also owned by Gaiman because they are just knock-offs of similar enough to Angela to warrant discovery.   The AV Club notes the Court's amusing analysis of the similarities among the characters:

Much as defendant tries to distinguish the two knight Hellspawn, he never explains why, of all the universe of possible Hellspawn incarnations, he introduced two knights from the same century. Not only does this break the Hellspawn 'rule' that Malebolgia never returns a Hellspawns [sic] to Earth more than once every 400 years (or possibly every 100 years, as suggested in Spawn, No. 9, exh. #1, at 4)

And, more hilariously, the latter:

Tiffany and Domina are visually similar to Angela and share her same basic traits. All three are warrior angels with voluptuous physiques, long hair and mask-like eye makeup. all three wear battle uniforms consisting of thong bikinis, garters, wide weapon belts, elbow-length gloves and ill-fitting armor bras.

I think it probably takes a female judge to notice that the armor bras are "ill-fitting."

Update on challenges to individual mandate

The constitutional challenges to the "individual mandate" aspect of the new health insurance reform law (which we discussed below) scored a small victory today:  a district court judge in Virginia denied the government's motion to dismiss Virginia's lawsuit.  Although not a ruling on the merits, this is essentially a holding that the constitutional challenge is non-frivolous.  As the judge put it:

While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate — and tax — an individual’s decision not to participate in interstate commerce. Neither the US Supreme Court nor and federal circuit court of appeals has squarely addressed this issue. No reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product...

For reactions from the go-to scholars on each side of this issue, see here (Randy Barnett) and here (Jack Balkin).