Thursday, February 21, 2013

Recreational reading

Shortly after we started this blog we did some posts about Neil Gaiman.  Mr. Gaiman just put out a collection of 12 very short stories called A Calendar of Tales.  You can download/read it here.  I read the January story this morning.  It was pretty good. 

Tuesday, February 19, 2013

On Wisconsin

In case you thought that the Wisconsin Supreme Court is functioning better, Justice Bradley issued this order to let you know you are wrong.  Our previous coverage of the Wisconsin Supremes is here.    It is an interesting summary of events regarding Justice Bradley and Justice Prosser. 

Saturday, February 16, 2013

Are briefs protected by copyright? UPDATE


Answer: no.

After previously dismissing the claims on behalf of lawyers who never registered their briefs with the Copyright office, Judge Jed Rakoff has now granted West and Lexis's motion for summary judgment and dismissed the case in its entirety. What is my incentive for even creating new briefs, now?

ORIGINAL POST (2/23/2012):

Eugene Volokh notes that a lawsuit has been filed in federal court alleging that Westlaw and Lexis violate copyright law by posting (and then charging for) briefs filed in court. Professor Volokh thinks it's not an unreasonable argument.

I don't have any opinions on the merits of the case, but if briefs are protectable by copyright, then I may have a claim. Compare this brief that I drafted (with help, of course) with this brief that others filed in another case. For example, compare pages 21 - 25 of my brief with pages 15 - 18 of the other brief. It's pretty much a straight lift.

If you actually read the briefs, you'll notice that my client and the other guy's client were fighting the same battle. And we both "emerged" victorious, smashing our Kirkland & Ellis-represented opponent on summary judgment, and embarrassing them (in a joint opinion) at the Federal Circuit. I was aware of the other brief soon after it was filed, and I took it as an homage.

But I'm willing to check the statute of limitations on copyright infringement claims ...

Friday, February 15, 2013

Evidence suggests that slapping children does not quiet them down.

On occasion we are led to believe that there was a time when flying was a glamorous way to travel.  While I am not sure that time ever existed, if it did that time is gone.  Exhibit A in support of the fact that flying has gone from glamorous to brutal might be the case of Joe Rickey Hundley.

Thursday, February 14, 2013

A few things Justice Scalia and I have in common

1.  We are both humans alive in the United States in the 21st Century;
2.  We are both inolved in the legal business;
3.  Our first names begin with A;
4.  Our last names end in a vowel;
5.  We belong to the same religion; and
6.  If the ABA Law Journal is correct, neither of us watched President Obama's State of the Union Address.  We differed on the reasons for not watching. I wanted to do a little reading and he thinks the address is a "childish spectacle."  As for not actually attending the speech, Justice Scalia also did not want to "lend dignity" to it by attending.  I did not go because my invitation-I assume-was lost in the mail. 

Wednesday, February 13, 2013

The Hard Work and Home Life of Me, Your Average Lawyer

There's a provocative post over at Lawyerist entitled, "Being a Lawyer Doesn't Mean Long Hours." The author, Chris Bradley quotes someone quoting Sheryl Sandberg, Facebook's COO, saying she goes home at 5:30 p.m. every day, and asks why lawyers can't do the same. The commenters mostly take Mr. Bradley to task for even suggesting such a thing, and I agree with them.

Here's my take. People talk about "work-life balance," but I find the best course is just to maximize everything. The most important thing to me, by far, is my family. Except for my clients, to whom I devote every waking moment. Of course, during the in between moments I must admit that all I care about is myself. And money. I contain multitudes, after all.

A day in my life is just the average day, I believe, in a lawyer's life. I awake before dawn to train with the ghost of Bruce Lee for four hours. I then pen letters to my children and tuck 'em underneath their pillows. Just as everyone gets up to eat the breakfast I've cooked for them, I head to the office. Today, for example, I checked in and started and finished the supreme court brief that was due today. Then it was off to the courthouse for a two-week trial (which I finished in one day). Over lunch I taught a six-hour CLE (three ethics credits). The afternoon was filled with client meetings. I had four clients scheduled for 2 pm, six clients scheduled for 3 pm, etc., all the way until 8 pm. After these meetings, I headed home at 5:00 pm, picked up the kids from daycare, and cooked dinner in time to have it waiting for my wife when she got home from work. After that I bathed the kids while leading seven conference calls with various clients simultaneously. I then read the Lord of the Rings trilogy (including the poems and songs) to the kids and put them down for the night. Next I made sweet love to my wife for three hours (cut it a little short because tomorrow is Valentine's Day, after all). After my wife fell asleep, it was off to my other family's house. I arrived there about 5:30 pm and was also able to cook dinner for them. Baths, all seven Harry Potter books, more sweet love.

Then I surfed the Internet for about 11 hours, daydreamed about the Badgers' recent win over Michigan, and had just a little time to do some blogging.

Nothing special, I admit—just making it work, like all lawyers do.

No pay in his game either.

Continuing our coverage of Michigan circuit judge Wayne McCree (see here, here, and here) we report, thanks to this United Press International story, that Judge McCree has been suspended without pay over the allegation that he allegedly impregnated a woman who appeared before him as part of a custody dispute.  We covered that story back in December.

WAL-ZYR and ZYRTEC: Confusing?

The Trademark Trial and Appeal Board recently found that Walgreens' trademark WAL-ZYR, used for its generic version of Zyrtec (the allergy medication), is likely to be confused with the ZYRTEC mark by consumers in the marketplace. The TTAB therefore sustained an opposition to Walgreens' attempt to register WAL-ZYR.

This is a curious decision in that there's frankly no real likelihood than any real consumer would actually be confused by Walgreens' use of the WAL-ZYR mark. Anyone who has ever perused the aisles at a pharmacy knows that there are brand name medications, and there are generics. The generics are usually named something similar to the brand name medication, so you can easily identify them. At Walgreens, for instance, most of the store-brand generics start with "WAL-" and end with an homage to the brand name equivalent: Wal-Dryl (Benedryl), Wal-Zan (Zantac), Wal-Tussin (Robitussin), Wal-Sporin (Neosporin), Wal-Phed (Sudafed), Wal-Mucil (Metamucil), etc... These marks are not confusing. They are the opposite of confusing: they are illuminating.

I suspect Walgreens will appeal this decision to federal court, and I expect they will prevail.

H/t: TTABlog

Tuesday, February 12, 2013

One does not need to know anything in order to be a pundit.

Someone named Amanda Marcotte wrote a blog post at Slate saying:  (1) we should not care about whom the College of Cardinals chooses at a papal conclave to be the next Pope; and (2) the next pope will continue the "war" on women and gay people. I am pretty sure that war is used in the figurative sense as I feel like we would have heard about a literal war on women and gay people before now.

Monday, February 11, 2013

An alternative approach to wills.

Like Ray Fulk, I liked of the short-lived TV series Lucan.  Unlike Mr. Fulk, I have not made the star of the show a beneficiary to my will.  The Springfield, Illinois State Journal Register has this very odd story.

The story leaves the reader with the question of whether it is stranger to live on a farm that did not have running water in the 21st century or leave one's estate to the benefit of two actors one has never met.  What TV show stars are going to be in your will Mr. Torvik?

Friday, February 8, 2013

Possible Corruption in Chicago??

The Chicago Tribune is reporting that the City of Chicago is canceling the contract with its "red light camera vendor," a company called Redflix Traffic Systems, Inc, after an internal probe "found that company executives systematically courted former city transportation official John Bills with thousands of dollars in free trips to the Super Bowl and other sporting events."

I am shocked—shocked!—that the combination of Chicago politics and using automated traffic citations as a money-making scheme has resulted in scandal and corruption. What is the world coming to?

Are My Posts Riddled With Lies?

Longtime Reader(s)™ may (but almost certainly don't) recall one of my early posts, "Bev & Beverly Stayart: American Originals," about Beverly Stayart's quixotic legal campaign against various websites that allegedly use Stayart's name to advance their own commercial agendas. Here's how the Seventh Circuit put it back in 2010:
Like many, Beverly Stayart was curious about what she would find when she put her name into a search engine. In this case it was Yahoo. To her dismay, the comprehensive search results eventually contained links to websites and advertisements that she found shameful. She then sued Yahoo and the other defendants alleging trademark infringement and a host of state law claims. The district court dismissed her complaint, finding she lacked standing under the Lanham Act to sue for trademark infringement. She appeals, and because we agree that Stayart lacks standing under the Lanham Act, we affirm.
Despite losing that particular lawsuit, Stayart kept at it. She sued Yahoo! and Google in federal court based entirely on Wisconsin state law claims. Those claims, however, were dismissed as well (as noted in the update to the previous post).

Still, Stayart persisted. Having lost on the merits in her federal cases against Yahoo! and Google, she filed suit against Various, Inc. (d/b/a AdultFriendFinder) in Wisconsin state court. Various had been a defendant in the the Lanham Act case that the Seventh Circuit affirmed dismissal of back in 2010. The state law claims had been pleaded there, too, premised on "supplemental jurisdiction," but Judge Randa declined to exercise it after the federal claim was dismissed. He also refused to let Stayart amend her complaint to allege diversity jurisdiction because "it does not seem likely that Stayart could make a good faith allegation that her damages are more than $75,000."

After being served with the state court case, Various promptly removed the case to federal court in the Eastern District of Wisconsin. Stayart sought remand based on the court's previous finding that there was less than $75,000 in controversy. That set up an interesting issue. Previously, Stayart had argued that more than $75,000 was in controversy and Various had argued that less tahn $75,000 was in controversy—but now their positions were reversed!

Under the circumstances, the judge (Judge JP Stadtmueller, this time) found that Various was collaterally estopped to argue that the amount in controversy was more than $75,000. So the case was remanded to state court.

Once remanded, Various moved to dismiss the case on the merits. But that motion to dismiss has been denied—giving Stayart her first substantive victory in her many years of litigation. Based on the docket, the case now appears to be mired in discovery hell. Just last week, the defendants filed a motion to compel the deposition of Ms. Stayart, who seems to have, um, left the jurisdiction. The judge granted that motion, ordering that Ms. Stayart appear for a deposition in Milwaukee and explicitly threatening to dismiss the complaint if she does not.

Now, if you've clicked through to read my previous post, you may have noticed that there are a few unusual comments recently left by Anonymous (that noted Internet provocateur), such as this reply to a comment by Mr. Gillette but probably directed at me:

Wednesday, February 6, 2013

A fee arrangment that was a little too unusual.

The Oklahoma City Oklahoman has a story about a lawyer who allegedly arranged to have sex with his client's thirteen year-old daughter as part of his fee agreement with the client. 

Tuesday, February 5, 2013

The insanity defense works.

Back in November Mr. Torvik posted about how Cynthia Brim, a judge in Cook County, Illinois, was indicted for battery in regards to an incident that occurred between Judge Brim and a deputy at the Daley Center in Chicago.  As Mr. Torvik mentioned, Judge Brim rejected offers to drop the charge and intended to take the case to trial.  The Chicago Tribune reports that Judge Brim has been found not guilty.  Why?  Because Judge Brim successfully used the insanity defense.

Monday, February 4, 2013

A bureaucracy big enough to fix its own mistakes.

As the Chicago Tribune reports, on Wednesday, the Cook County Jail in Chicago accidentally released a convicted murder from jail prior to the man's sentence being completed.  The man, Steven Robbins, was apprehended on Saturday.

Friday, February 1, 2013

The Federal Law Clerk Hiring Plan is Dead

About ten years ago, federal judges (the appellate ones, at least) got together and formulated a "law clerk hiring plan." This "hiring plan" was in response to what was perceived to be an "arms race": judges were hiring clerks sooner and sooner in their law school careers, because each judge had an incentive to snap up the best "talent" as quickly as possible. Thus, back when I was in law school (before the hiring plan was implemented) we started interviewing for clerkships in the fall of our second year—nearly two full years before we would actually report for duty.

The "hiring plan" was an agreement among the federal appellate judges not to interview law students until they were in their third year of law school. At the time, this agreement seemed inherently unstable since it was non-binding and unenforceable. What would happen to a judge who hired a second-year law student? Other than a dirty look or two, nothing.

It took longer than I thought it would, but it appears that the plan is now in the process of coming undone:
Judges have begun hiring earlier and earlier, deciding not to comply with the hiring plan. This has created a race to the bottom, where judges interview (and offer jobs to) applicants with less and less law school experience. One judge memorably proclaimed that he thinks the appropriate time to start recruiting is "at birth."
The final nail in the coffin of the hiring plan came yesterday, when the United States Court of Appeals for the D.C. Circuit, called by some the "second highest court in the land," announced that it was abandoning the hiring plan.
The core flaw in the hiring plan is the notion that a student's performance in the second year of law school will tell the judge something useful about a potential hire's qualifications for the job. The truth, however, is that judges learn 99.9% of what they need to know about potential clerks from their first year grades. All law students, after all, have already been to and graduated from college, so it is not as though second-year law students are lacking an ample paper trail. The ones who excel academically in their first year in law school are the ones who will excel academically in their second and third years. So there just isn't any good reason for judges to wait, except that it apparently "looks bad" to hire students when they've still got two years of law school left. It might make someone wonder, "Hey, if judges can already figure out who the best hires are, what is the point of these last two years of law school?" And these are dangerous thoughts.

One argument in favor of the hiring plan is that, back in those pre-plan days, there was a federal judge foolish enough to hire me. But that particular judge saw the end of the hiring plan coming even before it went into effect:
A cartel's flaw always lies in the fact that the lion's share of monopoly gains flow to those who first break the cartel grip and jump out ahead of their competitors. In this case, the first judge who violates the deal will get to nab the top students from the best schools -- and do so before fellow judges have a shot at them. Each of the previous plans has run aground here, and there's no reason to expect otherwise this time.
Perhaps there is an alternative suggestion: Why not try a little honest self-restraint? If a judge needs more information than can be developed in two semesters of law school to make a quality clerkship decision, why not wait as long as needed? If others need less time or information, so be it. There is a name for this alternative proposal: It's called a free market.