WULS: Volume 84 Number 5 (2006)

WULS: Volume 84 Number 5 (2006)
Volume 84 Number 5 (2006)
Washington University Law Review
BLOGGERSHIP: HOW BLOGS ARE TRANSFORMING LEGAL SCHOLARSHIP

The papers from the Berkman Center for Internet & Society’s symposium on Bloggership:  How Blogs Are Transforming Legal Scholarship, held on April 28, 2006 at Harvard Law School, have been published. See, 84 Wash. U. L. Rev. 1025-1261 (2006).

New Adjunct Professor of Law

Next semester I will be an Adjunct Professor of Law at UALR Bowen School of Law. I will be teaching the Trademark Practicum, which is one of the five classes in the school’s Intellectual Property Course Concentration. Growing up, all I wanted to be was a professor, so I am living the dream. Yes, they will pay me, but I would have done it for free.

University of Arkansas at Little Rock William H. Bowen School of Law – Intellectual Property Course Concentrations

• Administrative Law
• Computer Law Seminar
• Intellectual Property
• Patent and Trade Secret Law
• Trademark Practicum

The Spring Trademark Practicum will be MWF, 10:55-11:50, and will be worth 3 credit hours. It is open to registration for 2nd and 3rd year law students.

Course Description: Trademark Practicum. This course introduces students to American and International trademark law. It includes practical hands-on excercises allowing students the opportunity both to learn substantive law and to gain invaluable experience in researching and drafting related work product. Methods for this course will include readings in legislation and court cases, legal research, contract and complaint drafting, client presentations and meeting and discussions. Students will be evaluated based on legal writing exercises and a final exam. Enrollment is limited to 16 students.

The blog site for the class will be at http://trademarkclass.wordpress.com

Can Attorney’s Copy Complaints?

The law blog at the Wall Street Journal points out that a complaint filed against YouTube this week copies greatly from one filed a few weeks back. They highlighted the relevant text in the two complaints for you. Here is the first and second complaint. Is it infringment or fair use? Good question, which also dovetails into an article I am currently writing on a similar issue (more later).

The only article on the matter Davida H. Isaacs, The Highest Form of Flattery? Application
of the Fair Use Defense against Copyright Claims for Unauthorized Appropriation of Litigation Documents, 71 Mo. L. Rev. 391 (2006), (pdf) applies a fair use analysis. Nimmer on Copyright § 2.18[E] suggests “There appear to be no valid grounds why legal forms such as contracts, insurance policies, pleadings and other legal documents should not be protected under the law of copyright.”

However, I throw my hat in with Prof. Thomas G. Field, Jr., who believes that law firms “[don't] have a protectable copyright in [] complaints” because they do not meet the creativity required to gain copyright protection. Under the idea/expression dichotomy in copyright law, facts are not protectable. Citing law, no matter how arranged, is simply citing to fact, and there is no creativity involved (unless you are wrong in what you believe the law to be, I suppose, which might make your interpretation very creative). I don’t think that you have to get to a fair use analysis here, as there is no protection available.

Of course, firms like Milberg Weiss (they sued a company I was an officer of once, but so did most state’s attorney generals) have been slapping a copyright warning on their complaints since 2001. If they sue you for copying wholesale from one of their class action complaints, give me a call to defend you; I would like an opportunity to make the argument in front of the Supreme Court.

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Technorati Tags: Keith HenningCopyrightsTrademarksIntellectual PropertyIP LawLegal Filings

Ave Maria Law

Totally unrelated to anything, but I couldn’t pass up the opportunity to point out this gem about Ave Maria Law (Mirror of Justice: Crisis at Ave Maria Law). Of course this is what happens when you mix fundamentalist religion (any religion) and the law. What did these profs. think would happen when they opted to work for school based on an authoritarian, patriarchal, and particularly dogmatic religious sect? That they would care at all what the profs. thought? Of course not. The people founding and funding the school have an agenda that includes using the law as a means to produce desired religious ends, and not to further free academic thought.

The school’s benefactor, Thomas Monaghan, has funded a number of projects intent on changing or shaping political debate and influencing policy to follow his subjective brand of ultra-orthodox Catholicism. The town he founded, Ava Maria, is a sanctuary for orthodox Catholics and in the town you will find no porn, no condoms or other birth control, and only carefully controlled clean television. This is the man behind your school. You bought into the type of law school this man wanted, which is led by the dean chosen to carry out his vision. If you have any problem drinking the kool-aid, then start packing. If you follow the man’s money, you will find that he has attempted to influence American elections through donations, 2 PACS he ran, and donations to other PACS. I am an atheist, and even I recognize the danger to society that his brand of pre-Vatican II Catholicism poses. He pushes a very anti-intellectual, anti-freedom brand of natural law theocracy. Even from Arkansas I could see that Ava Maria law school was an attempt to develop lawyers, judges, and politicos who would influence American jurisprudence. (see, i.e., this NPR story)

The real crime here is that the academics at Ave Maria were so blinded by [insert individual motivation here], that they helped the school get ABA accreditation. C’mon, Justice Antonin Scalia helped draft the law school’s curriculum, Monaghan dumped $50 mil. into the school, Justice Thomas and Robert H. Bork have been teaching classes there, the board includes Archbishop Chaput, the founder of Ignatius Press; etc. I have even read that Opus Dei is recruiting among the student body. So, again, what were you expecting when you signed on to teach at Ave Maria?

Again, here is the story that triggered this rant: Mirror of Justice: Crisis at Ave Maria Law and my favorite quote.

To summarize: last spring, a substantial majority of the faculty issued a vote of “no confidence” in Dean Bernard Dobranski. The response from the AMSL Board of Governors, led by Board Chairman and AMSL’s largest funder, Thomas Monaghan, was a terse restatement of its support for the Dean. This rejection of open discussions, combined with retaliatory actions by the Dean, exclusion of the faculty from governance of the school, and serious violations of academic freedom were subjects of an investigation by an ABA fact-finder earlier this year. In the midst of this ABAprocess, the AMSL Board voted in effect to close AMSL and transfer its assets to a new law school to be located on the campus of Ave Maria University, in southwest Florida.

Justice Clarence Thomas at UALR William H. Bowen School of Law

Last Friday, the third Supreme Court Justice in three years spoke at my law school. This time it was Justice Clarence Thomas, who confirmed for me three things:

1. Anyone can become a Supreme Court justice with luck and timing.

2. Getting on the Court tends to push to the fore whatever bit of arrogance was hiding inside of you. Evidence: in discussing his love of motorhomes, all things motorhome related, and the extreme joy motorhomes bring him, Thomas said “So, the next time you are sitting blocked in traffic behind a motorhome, remember that it might be me. And that I am happy, and you are not.”

3. The phrase “Its not something I ever think about” (or, his other wording of this phrase: “I don’t have a dog in that fight” – got to love a bloodsport analogy) will get you out of most difficult questions. Following closely is Scalia’s “I never pay attention to such things” and  ”I only pay attention to the words on the page.” Breyer’s form of this non-answer was “We have to deal with the argument the case brings us.” All three used their particular form of evasive answer when asked how they consider how their rulings will effect society.  All three also discussed at some point exactly how the Court’s decisions impacted society (Scalia, Lawrence v. Texas; Breyer, Bush v. Gore; and Thomas; Hamdan v. Rumsfeld, & Grutter v. Bollinger). I would like to know Kennedy’s phrase.

On a more serious note, most schools never see a Justice and I have been lucky enough to have one come to my school, in the middle of Arkansas, each year of my law school experience. For all the things that the administration does that I dislike, it is also true that someone is doing something right. Keep up the good work (can we get a double digit US News ranking?) and I might donate a new building some day.

2007 National Conference of Law Reviews

2007 National Conference of Law Reviews
March 21-24, 2007
Little Rock, Arkansas

Hosted by the University of Arkansas at Little Rock William H. Bowen School of Law and the University of Arkansas at Little Rock Law Review.

Web Site: http://www.nclr2007.com

Collection of Posner Decisions

A searchable database of all Posner decisions by Time Wu (Columbia law School prof. and former former Posner clerk) Project Posner.

Applying Environmental Economics to Valuation in Copyright Infringement

I am the first guy to give props to an original idea, even this one, which is pushing the cross-disciple thing to the edge. Seton Hall law prof. Frank Pasquale argues in the most recent issue of The Yale Journal of Law & Technology that the environmental economics’ methods used for valuing natural resources should be applied to valuing copyrighted works. Frank Pasquale, Toward An Ecology Of Intellectual Property: Lessons From Environmental Economics For Valuing Copyright’s Commons, 8 YALE J. L. & TECH. 78 (2006). Worth a read, if just to see something completely new.

US News IP Rankings Out

The 2007 US News rankings are out, and the new top 10 IP law schools shifted a little.

1. Univ of Ca.-Berkeley (Boalt)
2. Stanford Univ.
3. George Washington Univ.
4. Santa Clara Univ.
5. Univ. of Houston 
6. Cardozo-Yeshiva Univ.
7. Duke Univ. / Franklin Pierce Law Center
8. x
9. Chicago-Kent College of Law
10. Columbia Univ.

For the 2006 Rankings

1. Univ of Ca.-Berkeley (Boalt)
2. Stanford Univ.
3. George Washington Univ.
4. Univ. of Houston 
5. Cardozo-Yeshiva Univ.
6. Franklin Pierce Law Center
7. Columbia Univ.
8. Duke Univ./New York Univ.
9. x
10. Boston Univ.

Lets just say that I have a few issues with these rankings. First, Santa Clara? It seems inconceivable that any program could go from off the chart to number 4 in a year. Where did NYU go? What of Washington-St. Louis? This is nothing against Santa Clara, but more an issue with the methodology for specialty rankings. The 2005 rankings had NYU at #5, and Santa Clara at #13. There seems to be something wrong with the swings, unless there have been massive changes in funding and faculty.

I am vastly interested in the rankings because, at the moment, I am shopping LL.M./S.J.D. programs in I.P. To get more data than US News provides, there needs to be a specific dataset on I.P. programs – something I will get right on as soon as the semester is over. Please make suggestions as to the information you would like to know. Myself, I would like to know about hiring data, externships, etc. Something not reflected in the US News rankings.