Bracket, rankings, and money oh my!

So the NCAA 2017 Division One Men's Basketball Tournament began this week. As computer-based workers stop doing their jobs and start watching basketball, it seems like a good time to look at another famous ranking that came out this month. I refer to the US News and World Report's annual ranking of Best Law Schools.  

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.

The Minneapolis Star-Tribune reports that Judge Michael J. Davis has informed President Obama that Judge Davis will assume senior status in August 2015. This means that President Obama will have his second opportunity to name a federal district court judge to the bench in Minnesota. I think Mr. Torvik and I both agree that President Obama did a great job in selecting Susan Richard Nelson for his first pick.

It will be interesting to see how the President Obama's nomination to fill Judge Davis's seat does in a Republican-controlled Senate. It took nine months for Judge Nelson get confirmed when the Senate was controlled by President Obama's own party.

What do you think Mr. Torvik? Care to pick an over/under on how many months it will take President Obama's nominee to get confirmed? Will President Obama take this opportunity to redress half of his inexplicable failure to name us to the federal bench?

Actual proof that kids today have it worse.

Normally when I hear someone talk about how much better children have it today than in previous generations, I think that the speaker is spewing nonsense. But I do not tell the speaker that they are spewing nonsense because I do not have any proof to back up this thought.  Now I have proof.

"People can't shoot themselves more than once."

At least that is what Pine County, Minnesota Sheriff Robin Cole told the Associated Press in this story about a man who said he accidentally shot himself four times.The man, who was taken to a Duluth, Minnesota hospital, told investigators that his four gunshot wounds were self-inflicted.The story says the investigators did not believe the man and instead arrested his girlfriend on charges of first-degree assault.

Does the Internet link things forever?

It is hard to imagine that any Reader(s)™ of this blog are not also aware of Seth Leventhal's fantastic blog Minnesota Litigator. But in the unlikely event that someone has not visited there first, today Seth ran this post about a high school student who is suing his former school because of how it handled a tweet written by the student. Seth linked to the Complaint the student filed in federal court. While Seth wrote about the cartoon used in paragraph 80 of the Complaint, a different section caught my attention.

Take another minute to remember.

Last year, we ran the post below on the 69th anniversary of D-Day. Today, of course, is the 70th anniversary.  I thought we should run it again.  I updated it to reflect that it is a year later.

70 years ago today, Allied Forces invaded France to free it, and Europe, from Nazi occupation. Among the thousands of American, British, and Canadian soldiers who participated in the Normandy landings was an lieutenant in the Army Rangers named Gerald Heaney. After the war Lieutenant Heaney went back home to Duluth, Minnesota where he practiced law until President Lyndon Johnson named him as judge for the United States Court of Appeals for the Eighth Circuit. Many would say that Judge Heaney was one of the greatest judges to serve on the Eighth Circuit. In 2007, Congress named the federal courthouse in Duluth after him.

Are retirement ages for Minnesota Supreme Court justices constitutional?

I recently attended a fundraising party at a downtown Minneapolis law firm. As you probably know fundraisers are sort of like rent parties in college. The host provides some alcohol and snacks and the guests provide some cash for the person or organization seeking the funds. In college one would then try to drink enough alcohol to make attending the rent party a good investment of scarce funds. That sort of behavior is frowned on at fundraisers held at law firms.  So that is one difference between a rent party and a fundraiser.

Weather Myths

Some of you may have noticed that in the United States weather patterns tend to move from the west to the east. If you tell me it's really hot in Nebraska today, I will deduce that it will likely be hot here in Illinois tomorrow or so. I don't need a weatherman to know which way the wind blows.

Another thing you might have noticed is that it gets really hot in the summer pretty much all over the United States. Normally this isn't news. It's really only news when the hot weather gets to New York. Because that, after all, is where the news people live.

So hot weather is in the news because boy is it getting hot in New York. My wife and elder daughter are there right now, live on the scene, and they can confirm the reports.

But we in the Midwest saw this coming, of course, because it's been scorching hot here for about the past week. Here in Chicago the last five days have had highs of 91, 93, 95, 96, and 94. At the blog's other headquarters in Minneapolis it had been just as bad in the four days ending yesterday: 89, 92, 94, 94. The heat finally broke today in Minneapolis, and it should break tomorrow in Chicago.

But Slate blogger Matthew Yglesias looked at today's high of 84 in Minneapolis and came to some false conclusions:

When I say you should move to Minneapolis, I often get weather-related objections. But check out today's heat map and you'll see the news isn't all bad for the Twin Cities in terms of weather. I wish I were there right now.

Yglesias apparently hasn't noticed that weather systems in the United States move from west to east. I can't say I blame him, since he's spent his whole life on the east coast, and the only weather news he hears is when his own home area is having a weather event. But this idea that Minneapolis is a temperate paradise during the summer is quite misinformed. Here are the facts:

	July Hi	Jan Low
New York	85	26
Chicago	84	15
Mpls	83	4

So, winters are terrible in Minneapolis, bad in Chicago, and okay in New York. But the summers are the same in each city.

Conclusion: Contra Yglesias, there is no weather-related reason to live in Minneapolis—unless you love long cold winters, as some Minnesotans have, bless their hearts, convinced themselves that they do.

Take a minute to remember.

69 years ago today, Allied Forces invaded France to free it, and Europe, from Nazi occupation. Among the thousands of American, British, and Canadian soldiers who participated in the Normandy landings was an lieutenant in the Army Rangers named Gerald Heaney. After the war Lieutenant Heaney went back home to Duluth, Minnesota where he practiced law until President Lyndon Johnson named him as judge for the United States Court of Appeals for the Eighth Circuit. Many would say that Judge Heaney was one of the greatest judges to serve on the Eighth Circuit. In 2007, Congress named the federal courthouse in Duluth after him.

But will they go to Hell?

The Minneapolis Star Tribune reports that the Minnesota Senate has passed a bill legalizing same-sex civil marriage. As we noted on Friday, the Minnesota House of Representatives has also passed the bill.

Is Minnesota creating a new class of bigots?

The Minnesota House of Representatives passed a bill yesterday that allows same-sex couples the right to civil marriage.  The bill now goes to the Minnesota Senate. The St. Paul Pioneer Press article on the passage is here.  The article contains a statement from Minnesotans for Marriage. The group is not really aptly named because the only type of marriage they are for is heterosexual marriage. The statement is intended to encourage the Minnesota Senate to block the bill.

Losing custody of one child but keeping three. For whom is this a good success rate?

Parenting is hard work.  It is also rewarding.  People probably do not give a lot of thought to parenting being hard work because everyone has parents and most people end up having kids.  Also, the rewarding parts of parenting often make the hard parts seem worth it.

Minnesota and Marriage

Although I am too lazy to check, I don't believe that Mr. Torvik or I posted our opinions on the topic of whether Minnesota should recognized same sex marriage.  To the extent, not doing something counts as a streak, the streak continues today. 

However, I did want to point out that one of Mr. Torvik's favorite professors has a quote and picture in MinnPost's story about testimony that the Minnesota Legislature heard regarding whether to legalize same-sex marriage.  It is a riveting story.  Especially the part about how one former legislator who voted in favor of Minnesota's gay marriage ban testified yesterday that she regrets her vote. 

It was 150 years ago today. . .

that the largest mass-execution (or just plain execution, I assume) in United States history took place.  38 men were hanged in downtown Mankato, Minnesota of all places.  It was a mass hanging, so all 38 men were placed on a giant scaffold and hung at the same time.  Some reports say that the men held hands before the gallows dropped.

The Freedom to Own Slaves?

Prof. Dale Carpenter points out that St. Thomas University School of Law Professor Robert Delhunty is using a slavery analogy to argue (implicitly) in favor of a constitutional amendment banning same-sex marriage in Minnesota. Prof. Delhunty's premise is that whenever one party gets freedom, the freedom of another party is necessarily constricted:

[W]henever the law expands the freedoms of one person or group, it necessarily contracts those of another. When the U.S. Supreme Court raised the bar to success in libel suits brought by public officials, it expanded the freedom of the press but diminished the freedom to serve in public office without fear of being defamed. Freedom to publish narrows the right to safeguard a reputation.

Fairly cogent points. But, alas, he goes on:

[T]he constitutional amendment banning slavery necessarily ended the freedom to own slaves. But it is not an argument for that amendment that it expanded freedom without contracting it. It did both. 

It is rare, but perhaps occasionally wonderful, to see an argument reduce itself to absurdity. Prof. Carpenter breaks it down:

So slaveowners lost what Delahunty calls a “freedom” — “the freedom to own slaves” — when they were forced to live in a world where they could no longer own slaves. It’s just that slaves gained more freedom from their freedom than slaveholders lost from losing the freedom to own other people.

I am going to put this in the bottom ten percent of arguments I've seen against same-sex marriage.

Resquiat in pace Mike Ford

Mike Ford, a former president of the Minnesota State Bar Association who practiced law at Quinlivan and Hughes, died unexpectedly over the weekend.  Mike and I were on opposing sides of a lawsuit where the emotions between the parties ran pretty high.  That sort of thing can charge the dynamic of how the lawyers deal with each other.  Mike, however, was a true professional.   I learned a lot from how he handled dealing with that dynamic.  I also picked up a couple good tips from  from watching how he took depositions.  He was a credit to the profession and our sympathies to his friends and family.

An answer to a question no one asked.

In case you were wondering how much jail time you might do if you bite off a person's ear, it looks like the answer is six months in jail and five months of probation.  At least, that is what the Minneapolis Star Tribune reports happened to one woman who took things "way too far" at a New Year's Day party.

"There are some things the state cannot do to direct the moral content of your life."

Professor Dale Carpenter talks about his book, "Flagrant Conduct":