February: Month in Review

February was a good month for this ol' blog. Posts appeared nearly every day, and there was some good discussion, even with another blog. Here are some of the highlights, in case you missed them:

• Gillette penned the month's most-viewed piece, "A pointless boycot?" about whether poor treatment of Jack Kirby, a famed comic book artist, justifies a boycott of the upcoming Avengers film.

• Not to be out-nerded, Torvik responded with his own comic book post, about how Marvel is seeking a ruling that X-Men are not humans.

• Torvik and Gillette also exchanged posts about the rights of non-humans, specifically the most ferocious of sea mammals: ORCA. Gillette argued that it was okay to enslave an orca; Torvik told Gillette to watch his back.

• Torvik had two posts on trademarks: one about Pretzel Crisps™ and one about Linsanity™. I revealed that trademark law is a special interest of mine.

• Gillette took noted Scotusblogger Tom Goldstein to task for his speculation about Obama's next Supreme Court pick.

• Gillette wondered why anyone would view internet pornography at work. Torvik answered the question, unfortunately.

• Torvik "shredded" Nick May's post about some Wisconsin Republicans' legislation concerning employment law. In doing so, he discovered that some Democrats (and others) had been perhaps untruthful about the bill, and Torvik got all self-righteous about it. Then some sparks flew in the comments, finally.

• Finally, Gillette ended the month with a palindrome post.

Step on no pets

The Mercury News in San Jose, California has a story about an emerging field in family law practice - custody disputes over pets.

According to the article, 25% of respondents to a survey by the 1,600-member American Academy of Matrimonial Lawyers said that pet custody cases have increased noticeably since 2001. Breakups in same-sex marriages, civil unions and domestic partnerships are among reasons pet custody fights have become more common.

The article quotes family law attorney David Pisarra, who says pet custody cases have grown as much as 15 percent in his office over the last five years. Mr. Pisarra not only litigates these cases, he lives them. Mr. Pisarra shares custody of his dog with his now remarried “ex.” The article says that the ex's remarriage has “introduced a step-dog” in addition to the dog the “ex” shares with Mr. Pisarra. I use the term “ex” because that is what the article uses. The article is vague as to the gender of the “ex.” The article is unclear as to whether Mr. Pisarra's marriage was a traditional marriage or a same-sex marriage (not that there's anything wrong with that).

Mr. Pisarra has even written a book about “co-parenting a pet with an ex” titled “What About Wally.”

Lest our readers think that the article or this post are simply infomercials for Mr. Pisarra, the article also quotes Silvana Raso, a New Jersey family law attorney, for the proposition that people have begun viewing pets as family members rather than possessions. As a result, Ms. Raso says, people are willing to fight for custody of a pet in a way that people would not have during the Neolithic age known as the Twentieth Century. The downside to this, of course, is situations where one spouse uses the pets as a weapon. Ms. Raso had a case where an estranged wife killed her client’s two dogs.

Obviously, it is a good thing when people like Mr. Pisarra and his “ex” are able to amicably work out a custody/visitation arrangement for pets. Conversely, I feel safe in saying that killing a pet as a way of punishing a spouse is a terrible idea and, I suspect, illegal just about everywhere. Neither of these observations are what prompted me to write this post.

The reason I wrote the post is that it illustrates my belief the law is wonderful because there is always something new to learn. To quote Solon, thanks to the law “I grow old ever learning many things.” It had never occurred to me that custody arrangements for pets would be an actual thing. It also never occurred to me that “step-dog” is a thing. However, this may be because “step-dog” isn’t a thing. A search of the term on Google and Bing suggests the term isn’t used by anyone other than the writer of the article. Finally, it also hadn’t occurred to me that one consequence of the rise of gay marriage is that reporters have not figured out what terms to apply to former spouses in same-sex marriages (which is not to say that Mr. Pisarra was in a same-sex marriage. The article's use of "ex" simply made me think of the issue).

Most Democrats think the individual mandate is unconstitutional

Gallup has come out with some rather shocking results from a public opinion poll about the health insurance reform bill. Specifically, the poll finds that 72% of Americans—including an astonishing 56% of Democrats!—think that the individual mandate aspect of the bill is unconstitutional:

The obvious question is: what does the average American know about the constitutional arguments against the individual mandate? Answer: Absolutely nothing, huh, say it again! But it does show, I think, that this aspect of the bill is pretty unpopular.

Double duped

Madison's Capital Times newspaper has been duped twice in the past week or so.

First, it bought the lie that Republicans in Wisconsin passed a "bill to repeal equal pay protections for women in the workplace" in an "assault on pay equity." As I pointed out here and here, that is false. The Capital Times editorial board made the mistake of trusting Kathleen Falk on this one. She is running for governor in the recall election against Scott Walker.

Second, it "posted on its website and on madison.com a story that falsely said that U.S. Rep. Paul Ryan and U.S. Sen. Ron Johnson were joining state Rep. Steve Nass, R-town of La Grange, in pressuring the Smithsonian’s National Museum of American History to purge its archives of posters from last year’s protests at the Capitol in Madison." The newspaper quickly realized that the article was based on a fabricated news release and took the article down. In this case it was duped by a political cartoonist, who fabricated the press release and sent it to a Cap Times staffer. Apparently the joke was lost in transit.

The common element in both mistakes is that the folks at the Cap Times were too eager to believe the worst about their political opponents. This is an endemic human flaw. And it's why we should be most skeptical about stories that reinforce our preconceived notions about the world. But that's a tall order, of course.

Rick Santorum will never be President.

George Gallup, pride of Jefferson, Iowa, virtually invented modern political polling. So, perhaps one should take heed of the recent Gallup/USA Today poll, which found that former Pennsylvania Senator Rick Santorum leads President Obama 49%-46% in a national poll and leads 50%-45% in a survey of the swing states of Michigan, Ohio, Virginia, Colorado, Iowa, Florida, Nevada, New Hampshire, New Mexico, North Carolina, Pennsylvania and Wisconsin.

Despite this survey, I am going to go ahead and call it. Rick Santorum will never be president of the United States of America. There are 4 reasons why Senator Santorum’s campaign is doomed to failure.

"I think it would be better if I didn’t speak."

The Wisconsin Supreme Court has decided to stop holding its meetings about administrative matters in public. The title of this post was Justice Prosser's only comment during the discussion.

I confess the idea of court administrative meetings in public seems nuts to me. But given the shenanigans on that particular court, I'm not sure now is the best time for a change.

Right Here Right Now (or why Maryland just got more palatable)

If the work of David Simon has taught us anything, it is that Maryland is a hellhole. However, just as a blind squirrel sometimes finds a nut, Maryland sometimes gets things right.

Lost amid the carnage of the Wisconsin/Minnesota blawg war was the story that the Maryland legislature has passed a bill legalizing same sex marriage. Maryland's Governor is expected to sign the bill into law. Assuming that happens, Maryland will become the eighth state to legalize gay marriage. The happenings in Maryland contrast those in New Jersey where the Governor of New Jersey vetoed the New Jersey legislature's attempt to legalize same sex marriage (although the veto may be overridden). Meanwhile, Minnesotans will get to vote in November on whether to make Minnesota's ban on same sex marriage part of the Minnesota Constitution. Also, Judge Tonya Parker, a judge in Dallas, Texas has decided to turn down requests to perform marriages until same sex marriage is legal in Texas. Because of this the blawg Above the Law has named Judge Parker it's "Judge of the Day." (As an aside, the Judge of the Day is a weird honor. The most recent winner of the Judge of the Day before Judge Parker got the award because he was caught on video beating his disabled daughter.)

Whether you are David Boies or failed Iowa gubernatorial candidate Bob Vander Plaats, I think everyone can agree the fact that 16% of the states now allow same sex marriage is remarkable. The Defense of Marriage Act (DOMA) was signed into law on September 21, 1996. It was fast track legislation and passed with overwhelming majorities in both houses (85-14 in the Senate; 342-67 in the House of Representatives). Now, before the bill is old enough to drive in most states, it seems that laws prohibiting same sex marriage are being consigned to the ash heap of history.

The only law that I can think of that rivals DOMA in terms of being popular when passed but quickly becoming unpopular is the Eighteenth Amendment, i.e., the prohibition amendment. However, it was somewhat more controversial as it only passed 65-20 in the Senate and 282-128 in the House of Representatives. Those are certainly healthy margins but not as healthy as the ones when DOMA passed.

Anyway, my favorite professor once commented one knows one is witnessing an amazing historical event when something happens that seemed unimaginable shortly before. He was speaking of the fall of the Berlin Wall but the sentiment is applicable here. DOMA passed by such wide margins because politicians in both parties thought that voting for it was a surefire way to please voters. At the time it was hard to visualize the possibility that same sex marriage would become legal by any manner other than court intervention. Yet, Maryland, New York, Vermont, New Hampshire, Connecticut, and (depending on whether a referendum defeats the legislation) Washington have all used the legislative process to legalize same sex marriage. Obviously politicians no longer feel that banning same sex marrriage is a surefire way to please voters. I doubt supporters of same sex marriage in 2006, let alone, 1996, would have thought this would happen so quickly.

Finally, a word of caution to folks in Minnesota (and possibly Washington, Maryland, and New Jersey where anti-gay marriage groups are pledging to mount ballot campaigns to overturn the laws), you might want to stay out of pizza restaurants until after November.

Some legal background on Obama versus the bishops

Back when the issue was actually in the news, I did a little thinking about the Catholic bishops' objection to Obamacare's contraception-coverage mandate. This entailed reeducating myself on something I remember studying in law school: the Religious Freedom Restoration Act (RFRA). Since I went through the process of reeducating myself, I thought I'd try to reeducate you too, Mr. Gillette. (Probably hopeless, but worth a shot.)

More on Wisconsin's Mythical Repeal of its Non-Existent "Equal Pay Act"

This morning I posted about how Wisconsin Assemblywoman Kelda Helen Roys from Madison falsely stated that the Republican-controlled Assembly had voted along party lines to repeal Wisconsin's non-existent "Equal Pay Act."

In my original post I charitably assumed this was a mere mistake. But I now believe it's a concerted campaign to distort what the Republicans have actually done. Why? Because other Democrats are spreading the same lie. For example, Racine Assemblyman Cory Mason:

Every time I think this legislative session could not possibly get any stranger or more shocking, my Republican colleagues do something else to surprise me. On February 21st, in a stunning move, Assembly Republicans voted to repeal Wisconsin’s Equal Pay Act. That's right, instead of passing bills to create jobs, Assembly Republicans repealed the law that ensured that women cannot get paid less than a man for doing the same job.

Both of the emboldened statements are false. As noted in my previous post, what the Assembly Republicans voted to repeal was Wisconsin's "Equal Pay Enforcement Act," which actually just allowed additional monetary remedies under preexisting substantive law, and did absolutely nothing to "ensure[] that women cannot get paid less than a man for doing the same job." Pointedly, even if Governor Walker signs the repeal, equal pay for equal work will still be the law of Wisconsin (and, perhaps more importantly, the law of the entire United States).

So I'm no longer willing to give the benefit of the doubt and assume that these are just mistakes. I'm now convinced that this an orchestrated campaign by Wisconsin Democrats to purposefully sow confusion. It's shameful.

In Assemblyman Mason's own immortal words, "Are you for real?"

UPDATE:

As anonymous notes below, Governor Scott Walker has signed the repeal bill.

Linsanity™

UPDATE 2/24/2011:

Six more trademark applications have been filed for "Linsanity," bringing the total to eight. The big news is that one of the filers is Jeremy Lin himself.

ORIGINAL POST 2/16/2012

Bloomberg reports that two separate trademark applications have been filed for the term "Linsanity." As you may know, Mr. Gillette, Linsanity is the catchall term for the hoopla surrounding Jeremy Lin, a Harvard graduate (and Asian-American) who has suddenly become a unlikely star for the New York Knicks. Both trademark applications have been filed by opportunists who have no current connection to Lin, the Knicks, or the NBA. One application is based on mere "intent to use" the term in commerce; the other (later) application claims actual use in commerce already. Specifically, on this t-shirt:

The Gillette-Torvik blog will be keeping an eye on these applications.