SBM Blog

The Pope's Favorite Movie - To Sue, Or Not To Sue, That Is The Question

 

Pope Francis's favorite movie is, according to this WSJ Law Blog post, the acclaimed 1987 Danish film, Babette's Feast. Such a fine choice; such a sensuous movie. And, also according to the WSJ Law Blog post, a movie that is the current subject of a international copyright dispute:

Under Danish copyright law, rooted in the European legal tradition of “moral rights,” artists retain substantial control over the licensing of their works. Artists can make deals allowing someone else to publish, license, distribute or market their work. But those rights can’t be sold to someone else without the blessing of the author, unless the transfer is “usual or obviously presumed.” It’s the equivalent of a tenant who must get landlord approval to sublet.

What's The Value Of Expungement If News Lives Forever On The Internet?

History is history, and expungement (or expunction for the purists) is expungement. The legal erasure of a conviction is a remedy of sorts against the collateral legal consequences of conviction such as ineligibility for certain occupations.  But, the Internet never forgets and search engines are nearly all-seeing. Hence a new class action suit in Connecticut that seeks defamation damages against local news outlets responsible for news stories concerning events tied to records that are subsequently expunged. The woman who brought the suit had been arrested on a marijuana violation, but the arrest was expunged after she participated in a drug education program.  Former New York Times executive editor Bill Keller, in a NYT op-ed, finds the reasoning behind the lawsuit torturous:

There are passages in the court briefs that make you think the lawyers were possessed by the ghost of Lewis Carroll. They debate the difference between “historical fact” and “legal fact.” They dispute whether something that was true when it happened can become not just private but actually untrue, so untrue you can swear an oath that it never happened and, in the eyes of the law, you’ll be telling the truth. Several pages and copious footnotes are devoted to considering what the meaning of “publish” is. Martin’s lawyers insist that every time a search engine delivers the old story to a new reader, it amounts to republishing, and constitutes a new libel. The defending news companies say that is ridiculous.

Despite his obvious doubts about the legal arguments in the class action suit, Keller is sympathetic to the problem of the tyranny of Internet memory and suggests that the new European initiative to enshrine a “right to be forgotten,” in the law may get some traction here.

HT: ABA Journal 

Affirmative Action In The Cross-Hairs

If you appreciate the irony of being lectured on the evils of race and class discrimination by the English you won't want to miss The Economist's editorial, "Time to scrap affirmative action." It precedes a longer but no less subtle piece on Fisher v. University of Texas at Austin. The much-anticipated/dreaded affirmative action challenge is now the only  case argued in October before the Court that remains undecided. Ann Althouse goes out on a limb:

[A] narrow decision, determined by Kennedy and Alito (and maybe Roberts), striking down only the Texas program. Scalia and Thomas concur, complaining that Grutter should have been overruled. Everyone else dissents.

New Frontiers of the First Amendment: Soldiers Insulting the Commander-in-Chief on Facebook

National Law Journal has an op-ed, "When Soldiers Go Social On Politics," that responds to vitriolic social media comments from members of the military, and says there are limits to what soldiers can say about the president publicly:

The U.S. Supreme Court, in Parker v. Levy (1974), upheld provisions of the Uniform Code of Military Justice that prohibited a Navy doctor from expressing anti-war sentiment to fellow seamen and encouraging African-American seamen to refuse to go to Vietnam. The Levy court explained the justification for limitations on military expression as deriving from the "fundamental necessity for obedience, and the consequent necessity for imposition of discipline, [which] may render permissible within the military that which would be constitutionally impermissible outside it." Because of this, the "different character of the military community and of the military mission" allows for a "different application" of free speech protections under the First Amendment.

This Now In: Yelp Reviews Of Jails And Prisons

And the purpose would be to help you choose the location of your crime more carefully, in case things don't work out?  From the Washington Post, "With few other outlets, inmates review prisons on Yelp."  As of this writing, no Michigan facilities appear to have been reviewed on Yelp.

Michigan Supreme Court Seeks a New General Counsel

The Michigan Supreme Court is seeking qualified applicants for the position of Supreme Court general counsel. The person in this position provides legal counsel to the chief justice, the justices, the state court administrator, and the staffs of the Michigan Supreme Court and the State Court Administrative Office, and oversees issues involving interaction between the executive and legislative branches of federal and state government.

A qualified applicant will have a juris doctor from an accredited law school, more than seven years of legal experience, and active membership in the State Bar of Michigan. The candidate will also possess strong legal research, writing, and oral presentation skills. Knowledge and background in the legislative process and government administration are preferred.

To apply send your cover letter and resume in Microsoft Word format or as PDFs to [email protected]. View the complete job posting.

The new Supreme Court counsel will succeed Matthew Schneider, who has accepted a position as chief legal counsel to Michigan Attorney General Bill Schuette. In March, Schneider was recognized as a “Leader in the Law” by Michigan Lawyers Weekly for, among other achievements, his contributions to court and judicial reform. Before joining the Supreme Court in 2011, her served as an assistant U.S. attorney in Detroit in the Public Corruption Unit, which investigates and prosecutes corrupt public officials, organized crime, drug traffickers, and others. From 2002-2003, Schneider served as senior advisor and assistant general counsel in the White House Budget Office, where he provided legal and policy advice to cabinet members and senior presidential staff. From 2000-2002, he was an associate in the Washington, D.C. law firm of Wiley, Rein & Fielding L.L.P., where he advised clients on business and trade issues. A 2000 graduate of the University of Michigan Law School, Schneider is an adjunct professor at the Michigan State University College of Law, where he teaches advanced criminal procedure.

Justice At The Boston Marathon Finish Line

A Virginia Supreme Court justice who ran his first Boston Marathon this year crossed the finish line just minutes before the first bomb blast, and discounted the significance until the second blast. Justice Bill Mims was Virginia's Attorney General before joining the Virginia Supreme Court in 2010. Mims said that once he was aware that the blasts were deliberate he was reminded of the mass shooting at Virginia Tech, the sixth anniversary of which took place the day after the Boston event.

State Bar Representative Assembly Endorses End To Age Discrimination In Judicial Selection, Skittish On Attorney Inventory Rule

After spirited debate, the Representative Assembly approved a resolution calling for an end to the constitutional prohibition on appointment or election of lawyers over the age of 70 to judicial office in Michigan. After similarly spirited debate, a proposal for a rule requiring Michigan attorneys who represent clients other than in-house clients to identify the name of an active member to serve as an inventory attorney in the event of the attorney's death, disability or disappearance did not receive the Assembly's approval.

The judicial age limit proposal was among the issues presented to the Assembly by former Chief Justice Marilyn Kelly on behalf of the Judicial Selection Task Force that she co-chaired with former Michigan Supreme Court Justice James L. Ryan.  A key element of the Task Force's report, urging the amendment of the Michigan Campaign Finance Act to require disclosure of expenditures for electioneering in judicial campaigns, was adopted by the Representative Assembly in 2010.

Five Clever Steps To An Effective E-Mail Message

These tips are adapted from Inc.'s How To Write a Convincing E-Mail:

• Have a specific conclusion in mind.
• Structure your supporting argument into "digestible chunks."
• Bolster each argument with evidence.
• Repeat your conclusion as a "call to action."
• Stick a benefit in the subject line.

The Inc. piece has six tips, beginning with one that strikes me as too specific to be really useful— "Start with a decision in mind." Most of the emails I send and receive are about questions and answers, seeking clarification, or an invitation to a dialogue. But as for the other tips—

• Specific conclusions give your emails focus.
• Digestible chunks are easier to read on a computer screen than unbroken blocks of text.
• Evidence drives your message home. ("There’s also the fact that numerous studies—including one that tracked eye movement, one that surveyed people, and even one that examined the habits displayed by users of two academic databases—show that we start to read faster and less thoroughly as soon as we go online.")
• Repetition? Duh.
• Offer a benefit in the subject line—brilliant! ("Chocolate in my office—now")

Judge Advises Tsarnaev Of His Rights: Two Takes From Michigan

Two public figures from Michigan figure prominently in a Wall Street Journal story about Dzhokhar Tsarnaev's arraignment from his hospital bed, exploring the issue of whether the arraignment disrupted interrogators' wish to further interrogate Tsarnaev under the public safety exception to Miranda. From "Judge Made Call to Advise Suspect of Rights -- FBI Wanted to Question Dzhokhar Tsarnaev Further Under Public-Safety Exception:"

"There will be more instances like this, and we will need to have a much better understanding about what is appropriate," House Intelligence Committee Chairman Mike Rogers (R., Mich.) said in an interview Thursday. "We have a long-standing tradition that the judiciary does not interfere with investigations. This sets a very dangerous precedent."

...

Andrew Arena, the former head of the Detroit office of the Federal Bureau of Investigation when it handled the case of the plane "underwear bomber'' in 2009, said he thought the Boston case was handled properly.

"When you bring the judge into it, that's what's going to happen. They don't work for the Justice Department, they don't work for Capitol Hill, they are going to do what they are legally obligated to do,'' said Mr. Arena. "I think [investigators] got what they were going to get out of him, anyway.''