“Patent Troll Claims Ownership of Interactive Web – And Might Win” [Joe Mullin/Wired, earlier; more on testimony by Web father Tim Berners-Lee] Update: Ding Dong! Jury rejects claim;
As patients suffer: “The War Over Prescription Painkillers,” start of a Radley Balko series [HuffPo parts one, two so far]
Richard Epstein on federal fiat and Yale disciplinary procedure [Defining Ideas] Under new-style rules at Yale, will a professor even be aware he’s been accused and henceforth is to be “monitored”? [KC Johnson]
Jim Copland testimony on abuses in government contingent-fee litigation [Manhattan Institute, PDF] “Parens patriae” proposal to replace class actions with state attorney general suits, but with private entrepreneurial bar still in saddle [Adam Zimmerman/Prawfs on Myriam Gilles/Gary Friedman, SSRN]
“Hawaii may keep track of all web sites visited” [Declan McCullagh]
NEA (and now Obama) answer to public education woes: lock the exits by hiking school-leaving age [Steve Chapman, earlier]
On nomination filibusters, New York Times editorial policy has pulled a 360, not just a 180 [Whelan, 2003, 2005, earlier]
English copyright ruling “creates ownership in the idea of a photo’s composition” [Doctorow, BB]
New Maryland push for same-sex marriage will include stronger religious exemptions, a course I urged last year [Sun, my view] Detailed inquiry into the law of interstate marriage recognition and DOMA [Will Baude, Volokh]
3M sues prominent Washington lawyer/lobbyist Lanny Davis, says threat of bad publicity improperly used as lawsuit leverage [Above the Law, more, Legal Ethics Forum]
Robin Fretwell Wilson and Jana Singer debate on scope of religious exemptions in law’s recognition of same-sex marriage [FedSoc Engage] New Heritage backgrounder on same topic cites my writing (in the course of disagreeing). Michael Barone on the politics of the issue, and why he supports the evolution of the law [Examiner]
Hospital pays $25M to settle lawsuit charging lack of Katrina preparedness [White Coat]
Democratic majority on CPSC plans to ram through burdensome CPSIA testing and certification rule next month [Commissioner Nancy Nord, more]
For matching willing buyers with sellers through Canadian pharmacy ads, Google agrees to pay fine of $500 million, a forfeiture geared to the revenue the pharmacies (not it) took in from the ads [Atlantic Wire, Chris Fountain]
“Woman Won’t Have to Pay for Her Own Cavity Search” [Lowering the Bar]
I’ve got an op-ed in today’s Wall Street Journal on New York’s vote last Friday to legally recognize same-sex marriage. I also applaud the inclusion of protections for religious institutions (and would have favored strengthening the protections beyond the current level). The WSJ frames the discussion as “Two Views from the Right,” and they’ve got Maggie Gallagher giving the opposite side.
The video above is of the Society’s 10th annual Barbara Olson Memorial Lecture, in which Second Circuit Chief Judge Dennis Jacobs provocatively criticizes legal academia and other precincts of influential legal thinking for misunderstanding the role of the military and its relation to the law.
The Human Rights Campaign has issued a report rating major law firms (among other large employers) on how well they address LGBT issues. It takes off points for law firms that have represented anti-gay clients, such as Foley & Lardner, which has represented opponents of gay marriage in litigation in the District of Columbia.
Many nonlawyers will not see anything unusual in this. The thing is, it’s a passionately held tenet of N.Y. Times-reader legal liberalism — sometimes, at least — that law firms must not be publicly shamed for electing to represent “bad” clients in important legal matters. After all, representing those clients does not necessarily mean they share the clients’ objectives or viewpoints. For example, former Bush administration defense official Cully Stimson was widely excoriated after he suggested that it was to the discredit of leading law firms that they had thrown a tremendous effort into the pro bono defense of Guantanamo detainees.
Elie Mystal at Above the Law and John Steele at Legal Ethics Forum are among those to raise the question whether there is any real consistency to all this. And does it make a difference whether the “bad” client is being represented pro bono, or is paying handsomely, as with Sen. Kristen Gillibrand’s repping of Big Tobacco as a young lawyer?
Attention journalists: a trademark opposition and a trademark lawsuit are two different things [Legal Satyricon]
I explain (slightly rudely) why I think the Citizens United decision will probably help the Dems this cycle [National Journal blogger poll] Plus: no big effect on campaigns? [Ann Althouse] And it’s not as if Chuck Schumer has made up his mind or anything: he’s titled his hearing on Citizens United next week “Corporate America vs. the Voter” [PoL, yet more here and here]
According to LawDork, proponents of California’s Proposition 8 are planning to engage in some seriously broad discovery [PDF, see pages numbered 11-12] in their defense of the law against constitutional challenge:
We plan to develop evidence that many gay and lesbian individuals desire to have biological rather than adopted or foster children, and that many satisfy these desires with the assistance of technology or by other means. We will seek discovery of the names of Californians in registered domestic partnerships with the parents listed on birth records from the Department of Health’s Office of Vital Records (which maintains birth records) and the Secretary of State’s Office (which maintains domestic partnership records). We may also seek discovery from companies and organizations that offer assisted reproductive technology and services to develop evidence on this issue.
Translated, this seems to mean they will make public records officials cough up the information needed to cross-check California birth against domestic-partnership records to “catch” people whose names appear in both data sets and thus appear likely to be gay parents. In case that doesn’t do the trick, they want to force assisted-reproduction clinics to disclose information about their clientele. Wow.
P.S. In answer to several questions, no, Ted Olson and I are not related.
Evidence continues to roll in against once-touted theory that bans on smoking in public places result in dramatic overnight drop in heart attack rates [Sullum, Reason "Hit and Run", earlier here and here]
Maybe everyone’s too used to such things by now to get riled up by that pic of garishly painted “1-800-LAWYERS” van [Ron Miller; earlier]
Magazines often found on scene at law enforcement raids = guilty magazines that should be banned from mails? [McClatchy "Suits and Sentences" blog; earlier on cockfighting periodicals Apr. 24, etc.]
Throw bloggers in prison because their posts cause emotional distress? Have fifteen members of Congress gone completely mad? [David Kravets, Wired "Threat Level", earlier]
Due to work and family commitments today and tomorrow, this may be my final post at Overlawyered. Walter Olson will be returning shortly.
Eight Los Angeles police officers may face suit from an unwilling Jamie Lynn Spears decoy. Why does the LAPD provide any officers at all to protect B-list celebrities?
What slippery slope? New Jersey Civil Rights Division finds discrimination in case of Methodist ministry which refused to rent a pavilion for civil union of two lesbians, but otherwise rented the pavilion for marriage without regard for sectarian concerns. Perhaps this makes sense if sexual orientation is protected under New Jersey civil rights law, but I’m pretty sure New Jersey still gets it wrong on the First Amendment;
“But the majority voted not to disbar since they saw a distinction between an attempt to have sex with the minor and actually doing it.“ Like Eric Turkewitz, I’m astonished;
Talk show hosts whose entertainment relies on “zinging” stupid guests, with the support of an even more stupid audience, should never invite Christopher Hitchens to appear on their shows;
Thoughts on whether it’s deceptive, or just lame, to call a solo law practice “the Law Offices of John Smith” or “John Smith and Associates” from sole practitioner Scott Greenfield.
In the event that this is my final piece here, I’ve enjoyed my stint guest-blogging, and commend Walter on the hard work he’s done through the years to make this a great site, as well as to build an unusually good commenting audience. Happy new year!
Not surprisingly, given that the office is occupied by former “Governor Moonbeam” Jerry Brown, he feels that the amendment barring same sex marriage should be invalidated. Also not surprisingly, given that it’s Governor Moonbeam, he takes a novel approach to the argument, one that libertarians may like: that same sex marriage is an inalienable right which cannot be taken away even by constitutional amendment. (The fighting Ninth Amendment to the United States Constitution does not appear to be cited, as it’s a matter of state law).
Kip Esquire, who is a libertarian and who strongly favors same sex marriage rights, has given Brown’s arguments a thorough review, and seems unimpressed. Key criticism:
If I were Kenneth Starr (in the sense of, “if I were as insolent and snarky as Kenneth Starr is”), then I would simply respond with something like this: “What the Attorney General is apparently suggesting is that the California Constitution — is unconstitutional. That simply cannot be right.”
Lots of coverage of litigation-reform angles of the election over at my other website, Point of Law (here, here, here, and here). For me the heartbreaker of the evening reform-wise was the surprise defeat of the very fine Chief Justice of the Michigan Supreme Court, Clifford Taylor. He will be sorely missed.
Interesting perspective from Bill Marler, the Seattle plaintiff’s attorney who’s become well-known for virtually “owning” the issue of food poisoning in the press: “Obama may actually see tort reform as a way to show he is a moderate”. [Jane Genova, Law and More]
Voters in California and elsewhere ignored the urgings of this site and wrote anti-same-sex-marriage provisions into their constitutions. There are many possible interpretations, but one is that the California Supreme Court will be Exhibit #2,971 toward the proposition that judicial activism does not always improve the well-being of its intended beneficiaries. Garrison Keillor titled one of his Lake Wobegon books We Are Still Married, and Eugene Volokh looks at the question of whether same-sex couples previously wed in California can say that (Nov. 5; more, Dale Carpenter, Jonathan Rauch). In other news, “Yesterday, 57 percent of Arkansas voters decided that the state’s 9,000 children in foster care are better off there than adopted by a gay couple.” [Radley Balko, Reason "Hit and Run"]
As to Topic A, the presidential election, I’ve decided to retire to the countryside and raise heirloom eggplants. Just kidding! Actually, as one who sat the election out after Giuliani quit the race, I’m happy for my friends and colleagues who are happy, awestruck by the historic moment like everyone else, and hoping for the best (i.e., centrist governance) policy-wise.
Beck & Herrmann skewer Waxman report on drug tort pre-emption [Drug & Device Law h/t Ted; much more at PoL] #
Good news, Fed Circuit in Bilski case limits business method patents [AP, Patently-O, Parloff] #
“Silicon Valley Stands United Against Prop. 8″ [TechCrunch] # Not too late to donate against the proposition whether or not you live in California [before you forget] #
Crash-faking ring in Queens targeted Asian drivers [NY Times] #
Community Reinvestment Act: bogeyman in housing mess, or unrelated red herring? Truth somewhere in between [Husock, City Journal] #
“Dopeler Effect” = tendency of stupid ideas to seem smarter when they come at you rapidly [@legalblogger] #
Going to go as Wall Street and terrify everyone: Happy Hallowe’en. #
Get your copy today!My new book tackles the question of why so many bad ideas come from the law schools. "Cutting-edge commentary, hard-hitting, witty, astute." -- Publisher's Weekly. "Excellent... A fine dissection of these strangely powerful institutions" -- Wall Street Journal.
