Nailed it.

It's usually wrong to brag and it is usually wrong to take pleasure in the suffering of others.  But is it wrong to point out that we called this back in July before anyone even knew Donald Trump running for president would be a thing?  In any event, the New York Times reports that Wisconsin Governor Scott Walker is ending his presidential campaign.  Perhaps he has decided to get back to the hard work of wrecking the state of Wisconsin.

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? 

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.

Wisconsin leads the nation in what?

I suspect the Venn diagram for people who listen to This American Life and people who read this blog is either a circle or a figure eight.  In case it is the latter, I wanted to point out that last week's episode on policing is very well done.  You can listen to it here. 

Of particular interest to me, and perhaps interesting to others given Wisconsin Governor Scott Walker's apparent interest in becoming President of the USA, was the shows mention that Wisconsin has the highest rate of incarceration of African-Americans per capita of any state in the Country.  At first, I could not believe this was true.  However, this paper put out by the University of Wisconsin-Milwaukee's Workforce and Training Institute, cites U.S. Census Bureau statistics that support the claim.  

Kenneth Kratz, a.k.a "The Prize," suspended for four months

Longtime Reader(s)™ surely recall the saga of Kenneth Kratz, the Wisconsin prosecutor who sent sexual texts (what the kids call "sexts") to a victim in a domestic abuse case he was charged with prosecuting, and other terrible behavior.

Today, nearly five years after the conduct, the Supreme Court of Wisconsin has imposed its punishment: a four-month suspension.

Justice Prosser dissents, in part, basically calling out what he sees as a broken attorney discipline process.

h/t Legal Profession Blog

A nice return on an investment.

In 1985, former Wisconsin Senator Herb Kohl purchased the Milwaukee Bucks basketball team for $18 million. According to ESPN, Senator Kohl is now selling a majority interest in the team for $550 million. The Bucks had a record of 15-67 this year, which is the worst record of any team in the NBA. I know the value of an NBA franchise is not based entirely on the team's record but one wonders what price Senator Kohl could have gotten for the team if it had been good.

Winter is starting to get to at least one police officer.

This is from February, but if the weather in Madison, Wisconsin is the anything like it has been in Minneapolis this week, I suspect the police offer is still writing this sort of incident report.

Paul Soglin, Mifflin Street, and Fair Use

Eugene Volokh has a nice post about a recent federal court decision discussing the use of Paul Soglin's image on some T-shirts sold at the 2012 Mifflin Street Block Party:

The photographer who took the image used for the shirts sued for copyright infringement, but the Court dismissed the case on fair use grounds.

The opinion also nicely lays out the ironic backstory. As you may know, the Mifflin Street Block Party started during the student protest era, with a young firebrand named Paul Soglin at the forefront. Well, times change. Paul Soglin has now been Madison's mayor a bunch of different times, and he's pretty much a party-pooper nowadays. So it goes.

As for my own experience with the Mifflin Street Block Party, I can personally attest to the high quality of the brownies.

Does judge-shopping exist in criminal law cases?

If you read his online biography, you will learn that Wisconsin Representative James Sensenbrenner likes to watch the Green Bay Packers in his free time. If you read the biography closely you might realize that Representative Sensenbrenner has been in elected office pretty much from the moment he graduated law school. Representative Sensenbrenner graduated law school in 1968 and was promptly elected to the Wisconsin Legislature. After serving there for 10 years, he was elected to the United States Congress and has been there ever since. It does not appear that Representative Sensenbrenner has ever practiced law or  had a full time job that wasn't a political office.

Has the Beverly Stayart Saga Ended?

Devoted Reader(s) will recall Beverly Stayart's lawsuits against various companies seeking redress for alleged damage to her online reputation.

We last covered this saga back in February. At that point, dismissals of her latest federal claims were awaiting affirmance at the Seventh Circuit, but her remanded state law claims were still pending in Wisconsin. The state law claims had been brought to my attention by a rude anonymous commenter to the earlier post:

Judge Randa authorized Stayart to go forward with her lawsuit in state court, which is exactly what she did. You apparently make up the "facts" as you go along. Your posts are riddled with lies.

Judges pretending to be Jesus.

As Easter dawns, young children will get up and search for candy.  Legally-minded people may ponder the question, can a Wisconsin state court judge play the role of Jesus in a living version of Da Vinci's The Last Supper. One can be forgiven for being surprised to learn that the Wisconsin Supreme Court Judicial Conduct Advisory Committee has answered this question.

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:

Collective bargaining rollback bill in Wisconsin hits snag—UPDATE

UPDATE:

The Seventh Circuit Court of Appeals has reversed the district court and upheld Act 10—otherwise known as Scott Walker's collective bargaining bill—in its entirety. The opinion is available here. A state court action seeking to invalidate the law on various bases remains pending.

ORIGINAL POST (3/30/2012):

A federal district court judge in the Western District of Wisconsin has struck down portions of Scott Walker's bill rolling back collective bargaining rights for public employees. The opinion is here.

Three houses, four houses, what's the difference?

Tommy Thompson, former four-term governor of Wisconsin and Secretary of Health and Human Services under President George W. Bush, has done pretty well for himself since he left government.  So well, in fact, that when he was asked how many houses he owns, he miscounted.  Daniel Bice of the Milwaukee Journal-Sentinel has the story.

The Infield-Fly Rule

When we were studying the commerce clause (or perhaps "the dormant commerce clause") in law school, the professor asked the class, "What is the difference between Wisconsin and Iowa?"

The context was that long-haul truckers prefer to drive through Iowa rather than Wisconsin, so the answer was very clear: Wisconsin has hills, Iowa doesn't.

Still, such an open-ended question gets my jokey little brain going and, after a long uncomfortable silence where no one was willing to supply the correct answer, I found myself blurting out: "Wisconsin has a baseball team."

It got a pretty big laugh, but it also got me a homework assignment. I was to go to the library and seek out a famous law review article: "The Common Law Origins of the Infield Fly Rule." And I did. (It was actually kind of difficult because the article was too old to be found on Westlaw, so I had to pull an actual dusty book off the shelves. Ew.)

The article is hilarious. The very first word—"the"—is followed by a footnote to the OED definition of this definite article. (A not-so-subtle knock on persnickety law-review editors.) But it is also pretty informative and substantive. I recommend that anyone interested in the history of sports give it a read. It is also essential background information for evaluating John Roberts's claim that a judge is just an umpire. (Because it turns out that umpiring is more interesting and iterative than it may at first seem.)

Anyhow, the infield-fly rule is in the news because it played a significant role in the outcome of the one-game wildcard playoff game between St. Louis and Atlanta last night. It's unclear to me whether the correct call was made (though the Atlanta fans certainly made their position known), but I think it's great that this wonderful and confusing rule is in the news. Here's a nice read.

One bad decision leads to 23 years in prison.

The Journal-Times in Racine, Wisconsin has a story that shows how one instant can change everything.

Albert Paragamian was an 88-year-old World War II combat veteran who was pulling out of a parking stall of Wheaton Franciscan-All Saints hospital on his way to meet his wife of 47 years as she was transferred from the hospital to a nursing home.  Richard Lewis was a 23-year-old man, on probation and driving without a driver's license, when Mr. Paragamian's car bumped the car Mr. Lewis was in.  Neither car was damaged.

Is any publicity good publicity?

Some folks say that there is no such thing as bad publicity.  A Wisconsin attorney is evidently trying to find out if that is true.  As reported everywhere on the Internet, Kenneth Krause wrote to La Crosse, Wisconsin television personality Karen Livingston to tell her she was fat.  Ms. Livingston regarded Mr. Krause's communication as a form of bullying and did an on-air piece about it.  The result was that the story went viral and that most people seemed to conclude that Mr. Krause had been out of line.  Mr. Krause, perhaps recognizing that his fifteen minutes of fame were running, doubled down on his comments instead of apologizing. 

As a result of this controversy, a google search for "Kenneth Krause Wisconsin Attorney" yields mostly hits on the story rather than links to a website where one might find Mr. Krause's contact information if a person decided that a lawyer who calls a local celebrity fat is the sort of lawyer a person needs.  Thus, one might wonder if Mr. Krause is going to see a benefit to the story going viral.  What do you think Mr. Torvik will Mr. Krause's business pick up as a result of this story?

Madison Teachers, Inc. v. Scott Walker

The Reader(s)™ have spoken—they want me to opine on the recent Dane County Circuit Court case striking down major provisions of Scott Walker's public-union busting law, Act 10. These people are nuts, but ... well, okay.

Dane County Judge Strikes Down Wisconsin Collective Bargaining Law

... as applied to county and municipal workers, apparently on grounds that it violates the constitutional rights of free speech, association, and equal protection.

I think we can all guess where this is going: an emergency stay from the Wisconsin Supreme Court. And fisticuffs.

UPDATE: Here's the opinion.

Tommy Thompson can do more push-ups than you.

Former Wisconsin governor Tommy Thompson is running for the Wisconsin's United States Senate seat.  I tend to doubt that he will win the Republican nomination because Republicans today really are not interested in furthering the ambitions of career politicians.  Also Governor Thompson is a well-known advocate of government spending money on trains and Wisconsin republicans no longer like trains.

However, I am pretty sure that Governor Thompson can out push-up any of his opponents in the election.  The Milwaukee Journal Sentinel has footage of Governor Thompson dropping and doing 50 push-ups at a reporter's request.  The footage is here.  The story notes that Governor Thompson placed his feat against the wall to get some support.  However, anecdotal evidence (in the form of me doing push-ups with my feet against a wall and not against a wall) suggests that the benefit derived from the wall is less than 10 percent.  At a minimum, Governor Thompson can do 45 unaided push-ups.

To put this in perspective, Governor Thompson, at the age of 70, can do almost double the average number push-ups a 40-year-old man can do according to Livestrong.com.  If fitness in elected officials is important to you, than maybe Governor Thompson deserves your vote.