May It Please The Court
Quote of the Day - Ancient Rome declined because it had a Senate; now what's going to happen to us with both a Senate and a House?
Spin Doctoring The News Into Freedom of SpeechThe Fourth Estate has become _______ (you fill in the blank as you see fit).
No matter how you look at it, though, journalists have faced some tough choices, with the threat of jail and sometimes actual time in the gray bar hotel.
First Amendment rights have been at risk across the pond and in the cradle of civilization.
And no matter how oblique the reference, the risk to a journalist is real, even if there is no legal basis to protect the "reporter-source" privilege. Certainly, there is a patchwork of statutes and case law designed to protect journalists who refuse to release their sources. There is no national framework, however, and the protection available in the several states varies greatly.
As a side note here, given that blogging is in its infancy and we can't even decide whether bloggers are journalists, it will be awhile before we face this issue. Query here whether bloggers will take that risk?
Just yesterday, Senator Christopher Dodd, D-CT, introduced The Free Speech Protection Act of 2004, Senate Bill 3020 (text not yet available online). It would establish a comprehensive federal law to protect journalists from revealing their sources. Dodd will have to reintroduce the bill in January when Congress reconvenes.
Dodd, however, isn't the first to introduce such a bill. A student at NC State did earlier this year, although the focus was slightly different. Still, however, the point was the same: freedom of speech.
One argument in favor of the journalist privilege centers on the need to protect the source in order to allow the free exchange of information between the source and the journalist. The net (desired) result is that we end up with a more informed citizenry because information that would otherwise not have come to light gets discussed in the public forum.
Here's my concern. Who protects the citizenry from the spin doctors? With journalists competing for "news," and rampant leaks, how do we know that journalists aren't being used (and fed) "information" in the name of news? For that matter, how do we know the source is real?
Dodd's effort is commendable, but should there be some checks and balances on the privilege? The editors who have to balance these weighty issues against the almighty dollar, may not be in the best position to evaluate the veracity of the source and the wisdom of publishing that information.
But that's our system, and consequently free enterprise runs smack into the wall of freedom of speech. It looks like job security for judges won't be an issue for a long, long time.
Ultimately, you and I become the final arbiters, though. We get to vote with our pocketbook and decide whether to buy the newspaper and the products advertised in that newspaper.
MIPTC Announces Its Affiliation with the Law.com Blog NetworkYou're among the first to know. You may have noticed some changes going on here lately, and today, one big change over there to the right.
What's it all about?
May It Please The Court is honored to announce that Law.com has chosen it as one of seven legal blogs to be regularly featured in the groundbreaking Law.com Blog Network. Law.com is the internet's leading legal news and information network and the flagship website of American Lawyer Media, which publishes more than 20 award-winning national and regional legal publications, including The National Law Journal®. The Law.com Blog Network is nationally and internationally syndicated to over 40 million readers.
Formal announcements will be made to legal bloggers and mainstream press on Monday. Meanwhile, poke around the Blog Network. It may not be completely operational until later today (we're in "soft launch" mode), but it should up and running in full by Monday. Oh yes, please feel free to poke around the WLF website too, and view our brand new Introduction, flash presentation about the Firm.
You can also welcome to the Network Professor Volokh, Matthew Homann, Carolyn Elefant, Bill Heinze, Michael Fox and Michael Cernovich.
Plus, Law.com will be featuring a Legal Blog Watch written daily by Lisa Stone, a journalist and blogger whose work has appeared in The New York Times and the Los Angeles Times.
Now you may ask, how is this change going to affect MIPTC? Not at all. Rest assured that Law.com and its parent, American Lawyer Media, have vested complete editorial control in me for writing MIPTC, and in each of the other legal blawgers on the Network.
Has MIPTC sold out? Kind of. At least now I'm getting paid. To be sure, though, MIPTC will be just as tongue-in-cheek as it always has been.
If you have any doubt, check out the post immediately below and today's Quote of the Day.
The Integrity Of Hooters' Intellectual Property Is Up For GrabsAdmittedly, MIPTC has been very serious lately. But here's a quote that deserves serious treatment.
"We believe we are defending the integrity of our intellectual property rights," spoken by Senior Vice President Michael MacNeil.
Sounds perfectly legitimate. Certainly something you'd expect to hear outside a courtroom after the parties completed their first day of trial in a trade dress infringement suit.
Now, consider the source: Hooters restaurant, whose motto is, "Delightfully tacky, yet unrefined." I couldn't have said it better myself.
Hooters is taking on its latest rival, Ker's WingHouse (I'll leave it up to you whether to enter the site) for stealing its ideas. Ker's thought mediation might settle the case, but that apparently didn't work.
Among other things, Hooters claims that Ker's stole its idea of scantily clad women selling food and beer to men.
Now there's some intellectual property to protect.
Grosso Revisited: Screenwriter Sues Microsoft for Idea TheftOn Monday, Roger Avary sued Microsoft for allegedly stealing his idea for a new, yoga-based video game designed for women. Avary's case is pending in the West District (Santa Monica) Courthouse of the Los Angeles County Superior Court. A copy of his complaint is available here. If you're interested, Avary has posted a two-day-old website to monitor his litigation with Microsoft.
Avary's case is of particular interest to me because it falls so closely on the heels of the Grosso v. Miramax case that I recently reported on in October. In that case, Grosso's copyright claim was barred. However, the Ninth Circuit allowed his claim for breach of an "implied contract" to survive pre-emption under the Copyright Act on the ground that there was a "bilateral expectation of compensation" that acted as an additional "element" beyond the scope of copyright law. It is, of course, interesting to note both that Avary does not claim that Microsoft infringed any copyright interest he may have in the video game, including its concept, and that his action was filed in state court, not federal court, which has exclusive jurisdiction over copyright claims.
This is precisely the kind of case that one would expect following the Ninth Circuit's decision. And while one case certainly does not mean the proverbial floodgates have opened in state courts, to the extent anyone read my prior blog article, I told you so.
Courts Work To Help Inexperienced LitigantsAccess to lawyers is expensive, as I've blogged about before. So it's no wonder that people end up representing themselves. In legal parlance, we call it pro se litigation.
It turns out to be the bane of courts because non-lawyers rarely understand the procedure involved with litigation. Admittedly, it's frequently complicated for lawyers.
So it's not surprising that courts are trying to do something about it. Nationally, pro se litigants make up nearly half of all appeals filed (subscription required to access link). Likely there's a large percentage of those who are jailhouse lawyers, but still half is a big number.
The Ninth Circuit has an information packet for pro se appellants. The Circuit has also proposed some rule changes designed to make it easier on pro se appellants by not requiring filing of certain documents. (Why can't I get that same break?)
Chief Judge Mary Schroeder just finished a task force report that will make additional recommendations to ease the burden on the court and pro se appellants. Those recommendations include:
• Districts should coordinate with law schools and consider using law school students to help represent pro se litigants, with students possibly earning credit for their work.
• Districts should make it easy for law firms to accept pro bono cases by either pitching pro se cases as good training for young lawyers, issuing success-based fee awards or reimbursing attorneys' out-of-pocket expenses.
I like the idea of law students helping. I did that during law school, and ended up with a case in front of the Iowa Supreme Court, which was a very valuable experience.
What's really interesting is that while the Ninth Circuit is busy helping pro se litigants, it is also doing the same for inexperienced attorneys.
What does that tell you about the Court's thoughts on the quality of practice in front of it?
PLF Drops the Gauntlet to Challenge Critical Habitat DesignationsHere's an interesting fact: over forty percent of California is designated as critical habitat for endangered species. That's according to the California State Association of Counties. Translated into acreage, that means that 42 million out of 100 million acres are set aside for plants, fish, birds, animals and insects.
As you can imagine, there are a number of people and groups that are quite displeased with those figures. So displeased, in fact, that some have gotten together and announced that they're going to sue the Fish & Wildlife Service and the National Marine Fisheries Service over the designations.
Specifically, for these agencies' failure to consider the economic impact of the critical habitat designations.
The suit will be filed some two months from now by the Pacific Legal Foundation, who is supported in its efforts by the Home Builders Association of Northern California, the Building Industry Legal Defense Foundation, the California Chamber of Commerce and the California State Grange.
Some 48 critical habitat designations will be the subject of the suit, from the charismatic Bighorn sheep to the zayante band winged grasshopper.
This is at least the second time the PLF has challenged the Fish & Wildlife Service. The FWS lost this issue before, and likely will lose again.
The question hinges on the FWS' ability to document the economic impact of the designation of large swaths of land that preclude development. Is it really just i dotting and t crossing or will the suit simply result in the de-designation of land, only to be re-designated by the FWS later?
It depends on whether the FWS conducts a thorough review of the economics of the situation. So far, it hasn't done the best job. Ultimately, though, if PLF wants to stop the designation of land, it will need to find a permanent remedy rather than seeking to stop, undo and restart the designation process.
That will take an act of Congress, not a lawsuit.
How Much for a Bowl of Shark-Fin Soup, Please?According to the United Nations, over 100 million sharks were killed last year. The number sounded staggering, so I broke it down into smaller units. That yearly figure translates to almost 274,000 sharks a day; or just over 11,400 sharks every hour; or approximately 190 sharks a minute. Just think about that for a second -- three sharks just died. A second later, three more. It's not surprising that marine scientists estimate that 90 percent of the world's largest fish -- including sharks -- have disappeared since 1950.
In an effort to reverse this trend, the U.S. Government recently proposed broad international measures to curb the slaughter of sharks in the Atlantic Ocean and to encourage the study and preservation of shark populations throughout the world. In particular, the proposals included a ban on the practice known as "shark finning," which is the act of slicing off a shark's dorsal fin and throwing the carcass overboard. Apparently, sharks fins, especially those of blue sharks (more than 90 percent of sharks harvested for their fins come from this species), are a delicacy in Asian countries and command high prices.
Although the Chinese have used shark fins in shark-fin soup since the Han Dynasty over 2200 years ago, the demand for shark fins has shot up in the past decade with the increase in economic prosperity in Asian countries. In Asia, shark-fin soups sells for over $100. In the U.S., dried shark fins can be sold for as much as $200 per pound. Now, here's the kicker -- it has nothing to do about taste (shark fin provides gelatinous bulk in shark-fin soup but it has no taste – the soup has to be flavoured with chicken or other stock) and has everything to do with prestige, or at least the perception of having it. Here's another kicker -- laboratory testing has shown that the concentration of mercury is high in shark fins, at least several times higher than levels the FDA considers to be safe for humans.
So let me get this straight: (1) we're killing off the apex creature in the world's oceans, an animal that has been at the top of the food chain for over 200 million years and that is crucial for maintaining the balance of all sea life on the planet; (2) we're doing this so soup can be prepared even though the ingredient in question -- sharks fins -- contributes absolutely nothing to its taste; and (3) by consuming the soup, we're needlessly subjecting ourselves to mercury poisoning and possible brain damage and/or kidney failure in the future. Under the circumstances, how much are you willing to pay for a bowl of shark-fin soup?
JAMS Refuses To Uphold Class Action BansIf you use JAMS as a third-party arbitrator and thought that you had a provision in your contract that disallowed class actions, guess again.
According to JAMS, the arbitrators have decided (pre-judged?) that they will not enforce those contracts. In their press release, the arbitrators stated: "JAMS unequivocally takes the position that it is inappropriate for a company to restrict the right of a consumer to be a member of a class action arbitration or to initiate a class action arbitration. The implementation of this policy means that JAMS will not enforce these clauses in class action arbitrations and will require that they be waived in individual cases."
I don't know if they've read all the possible clauses out there, but that's a pretty broad statement. JAMS is largely made up of retired judges along with some attorneys, and I have the utmost amount of respect for their ability to settle cases. But it seems to me that such a hard and fast (let alone universal) position isn't conducive to engendering a thoughtful review of the relative merits of everyone's position.
JAMS does clarify its "ruling" with these policies, essentially saying that if the company refuses waive application of the bar on class actions, it will not take the case.
A similar issue is pending before the California Supreme Court in a case entitled: Discover Bank v. Superior Court of Los Angeles County, Docket No. S113725. The issue, however, has already been addressed by the United States Supreme Court in Green Tree Financial v. Bazzle that seemingly upheld such bans, but also appeared to allow arbitrators to decide how to handle them.
Maybe that's what JAMS has done. In one fell swoop.