The copyright of law and misuse of terrorism analogies

Everyone knows that ignorance of the law is no excuse. A natural corollary of this, one would think, would be a right to know what the law is. For instance, you'd think that we here at the Gillette-Torvik blog could publish the text of laws without fear of official reprisal.

But that might be wrong.

F. Scott Fitzgerald was right.

According to Wikipedia, F. Scott Fitzgerald's short story "The Rich Boy" contains the following: "Let me tell you about the very rich. They are different from you and me."  I always thought that the quote was "The rich are different from you and I" but when Wikipedia says I am wrong, I don't question it.

Brat War

I'm going to keep the Border Battle going, just a little bit, with a story. When I moved from Wisconsin to Minnesota, one of the biggest culture shocks I experienced had to do with bratwursts.

In Wisconsin, ancestral home of the bratwurst (in America, at least), a brat is a brat. A coarse, pork-ish sausage, preferably manufactured by either Johnsonville or Klement. 

In Minnesota, a "brat" is a big hot dog stuffed with cheese, or some shit. I can't tell you how many times I went to a barbecue promised brats only to be presented with these abominations. 

Wisconsin 1, Minnesota 0.

I thought of this because the brat companies mentioned above are suing each other in a trademark battle over the mark BACKYARD BRATWURST. The Milwaukee Journal-Sentinel has the story:

Since 2009, Klement Sausage Co. Inc. has held a trademark on the phrase "Backyard Bratwurst." But now, the Milwaukee firm alleges in a federal lawsuit, Johnsonville Sausage LLC is stepping on Klement's intellectual property rights by touting the "Backyard Grilled Brat."

This, Klement says, will not do.

Having used "Backyard Bratwurst" to promote its products since January 2008, the company said in its complaint, the phrase has become linked to Klement in customers' minds. 

Johnsonville's "improper use" of the trademark "has caused and will continue to cause confusion, mistake, or deception among the public," the complaint says. It asks the judge to find that Johnsonville has infringed on the "Backyard Bratwurst" trademark, and bar the company from using any trademarks that are "confusingly similar to it."

I know a bit about trademark law, and I was surprised that Klement had been able to register a trademark for BACKYARD BRATWURST, given that the mark seems to be merely descriptive of the product -- a brat you presumably enjoy in the backyard. And, indeed, a search of relevant records showed that the application had originally been rejected on precisely that basis. 

But then Mr. Klement himself (apparently he did not deign to hire an attorney in the trademark application) wrote a letter to the trademark office:

Somewhat mysteriously, the application was thereafter allowed to proceed, and Klement was awarded a registration for BACKYARD BRATWURST.

Which raises the question: who owns the mark for FRONT PORCH BRATWURST? Mr. Gillette, should we give up our dreams of becoming federal judges and start a business to dominate the other half of the bratwurst market? 

Another poor performance by Wisconsin.

In my recent post about how Wisconsin Governor Scott Walker will never be elected president, I mentioned several ways that Minnesota outperforms Wisconsin economically despite Minnesota having fewer people than Wisconsin. Maybe because I am not as big a sports fan as Mr. Torvik, I neglected to mention that Minnesota is apparently also historically better at college football than Wisconsin.

Donald Trump will never be elected President

No explanation needed.

This post is for SEO purposes only.

Scott Walker will never be elected President

In 2012, we did some posts on people running for President of the United States that would absolutely not be elected.  You can revisit the good times here, here, here, and here. We have already taken the position that former governor of Texas Rick Perry will not be elected president.  While it remains early in the 2016 Presidential race but I think we can add Wisconsin Governor Scott Walker to the list. He announced his candidacy this week.

Happy Birthday to Me

I was born five years ago today. My parents have often ignored me, but they haven't yet killed me. Nor can they. I will live on, here in cyberspace, haunting their career prospects forever. Just like all children.

Judge Kopf goes after Ted Cruz

Richard Kopf is a senior district court judge for the United States District Court for the District of Nebraska.

Ted Cruz is a United States Senator from Texas, and he is running for president as a Republican.

Judge Kopf does not care much for Senator Cruz.

His dislike stems from Cruz's proposal to amend the constitution to submit federal judges to retention elections. Based on this proposal, Judge Kopf declares:

Senator Ted Cruz is not fit to be President

Judge Kopf seems aware that he is at least close to crossing a line by making such a statement:

As a federal judge, I am duty bound not to play politics. However, when a politician makes an extreme proposal to amend the Constitution and fundamentally alter and harm the federal judiciary and the Supreme Court, I have the right as a federal judge, and dare I say the duty, to respond to the proposal.

Judge Kopf's duty not to play politics is set out in Canon 5(A)(2) of the Code of Conduct for United States Judges. It is fairly straightforward: "A judge should not . . . make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office."

I think Judge Kopf's blog post can reasonably be interpreted as opposing Ted Cruz's candidacy for president. Although, the bulk of his post is an attack on the merits of Cruz's proposal—which seems permissible—he cannot resist taking specific shots at Cruz's fitness as a candidate for president. Perhaps we can view those shots as mere rhetorical bluster, rather than a serious opposition to Cruz's candidacy. What do you think, Mr. Gillette?

Incidentally, Judge Kopf quotes George Will pointing out that Cruz's proposal is similar to Teddy Roosevelt's proposal, when running for president as a Progressive in 1912, to submit judges to recall elections. Teddy Roosevelt, of course, actually served as president and became so popular that he's literally on the Mount Rushmore of U.S. Presidents. This undercuts Judge Kopf's argument that a person proposing to overhaul the judiciary in this way is unfit to president.

ADDED:

Judge Kopf explains his thinking on the ethical qualm in a response to a reader comment:

You raise a very serious point. It was one that I very seriously considered. Reasonable people can can reasonably conclude that my calling Mr. Cruz unfit ventures too far into the political spectrum. 

Here, in brief, is a part of my reasoning for thinking that I was allowed to comment on his fitness to serve as President and that I did not venture too far into the political arena. 

First, I have not voted since I became a judge in 1987. I am not even registered to vote. I consciously decided on this course of action to assure myself that I would remain apolitical. 

Second, and starting from the foregoing premise, I have no axe to grind one way or the other about who is elected President generally speaking. That said, when a man of Senator Cruz’s education and experience calls for a radical and fundamental attack on the Supreme Court he is not acting in political terms. If he is really serious about the amendment he is a threat to the judiciary that I love and respect and have devoted much of my life to serving. Therefore, his unfitness is a function of his threat to our Constitutional form of government–it is in that sense that he is acting in an extra-political manner and that extra-political action entitles me to take the public position that I have taken about his unfitness.

I am quite unconvinced.

I think that it was reckless for Judge Kopf to go forward with the post if he was aware that reasonable people could reasonably conclude it crossed the line into political advocacy. Why toe that line?

The stuff about voting is irrelevant and backwards: the code of conduct doesn't prohibit voting, it prohibits public advocacy for or against candidates! And, besides, voting isn't what gives us political opinions, it reflects them. A federal judge with a widely followed blog can influence an election far, far more with a post than he can with a single vote (which is meaningless, of course).

Finally, what to say about Judge Kopf's judgment that Cruz's unfitness is not a political opinion, but rather a simple fact of nature based on his proposal to amend Article III of the constitution? What to say about his judgment that Cruz's proposal is some sort of "extra-political action" because it is a proposed amendment to the constitution that poses a "threat to the judiciary"?

Probably the less the better. There no principled, or even coherent, argument that judges are allowed to campaign against politicians who make proposals that judges don't like.

UPDATE:

Judge Kopf now concedes his error, and has apologized.

Judge Posner's argument against polygamy also works against same-sex marriage

Polygamy has been a hot topic in the aftermath of the Supreme Court's finding a constitutional right to same-sex marriage. Indeed, Chief Justice Roberts argued in his dissent that most of Justice Kennedy's arguments apply just as strongly in favor of a right to plural marriage:

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability” serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? 

(citations removed for clarity)

And the argument for a right to plural marriage isn't just a gotcha advanced by bitter conservatives. Leftist blogger Freddie deBoer and left-libertarian blogger Will Wilkinson both jumped on the bandwagon, arguing that there should be a right to plural marriage.

In typically idiosyncratic fashion, Judge Posner has come up with an argument that he thinks dispatches this plural marriage stuff:

[T]he chief justice ... suggests that if gay marriage is allowed, so must be polygamy. He ignores the fact that polygamy imposes real costs, by reducing the number of marriageable women. Suppose a society contains 100 men and 100 women, but the five wealthiest men have a total of 50 wives. That leaves 95 men to compete for only 50 marriageable women.

Posner's argument is that a policy that would create an excess of unmarried men imposes a real cost on society, and therefore is certainly not required. In other words, this is at least a rational basis for a ban on plural marriage.

I see a number of problems with this argument. From a legal perspective, it is essentially frivolous because it has nothing to do with the reasoning of Justice Kennedy's opinion, which is based on liberty and equality, not economics or utilitarianism.

But, more subtly, it could just as easily be used to construct a rational basis for a ban on same-sex marriage, at least if it's plausible that there would be more homosexual women than homosexual men. Consider Posner's society of 100 men and 100 women, but where 6% of the men and 10% of the women are gay. If same-sex marriage is allowed, the 6 gay men and the 10 gay women pair up. That leaves 94 straight men fighting over 90 "marriageable" straight women. We've got four extra, lonely men. This counts as a "real cost" in Judge Posner's world.

And, to the best of my understanding, it is in fact true that women are more likely to identify as LGBT:

The gap is even bigger if you just look at younger people, who have grown up in a society much more tolerant to homosexuality and thus might reasonably be expected to be more honest about, or even aware of, their sexual orientation:

If you do the math, you can construct an argument that permitting same-sex marriage could leave millions of American men with no potential spouse:

1) According to the 2010 census, there were approximately 41.6 million men and 41.3 million women between the ages of 20 and 39. (So you'll notice that we start with a problem.)

2) Using the more extreme figure of 8.3 percent LGBT females and 4.6 percent LGBT males, we are left with 37,872,000 million "marriageable" straight women for 39,686,000 straight men to fight over. That's 1,814,000 extra, "unmarriable" men -- over 4 percent of the prime-age male population!***

Thus, based on Judge Posner's reasoning, we have found the "real costs" of same-sex marriage, and constructed a rational basis to require that marriage remain a one-man, one-woman institution.

Just to be crystal clear, I don't actually think this hocus pocus is a good argument against same-sex marriage. But all the reasons that make it a bad argument against same-sex marriage make it an equally bad argument against plural marriage.

***Totally weird coincidence: there are about 2,000,000 American men in prison right now.