February 2012 Archives

February 29, 2012

Professor Alexandra Natapoff's recently posted article, "Misdemeanors" (Southern California Law Review, Vol. 85, 2012), was noted as "highly recommended" on Professor Lawrence Solum's Legal Theory Blog.

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February 27, 2012

Levitt2.jpgBy Associate Professor Justin Levitt

The lines of our election districts lie at the core of our democracy. They decide whose voices are represented, and to what degree. New York's districting process rarely serves as a model of civic virtue. But now, there's an unusual chance for change.

In Albany, legislators choose their voters more than the other way around. It is a Twilight Zone process; incumbents purport "To Serve the Public," and cycle after cycle, we discover it's a cookbook that they're using.

Where legislators are in charge of drawing their own lines, there is a natural tendency to choose private and partisan self-interest over the public interest. If you had the capacity to ensure your own job security, no matter how well you performed ... wouldn't you do the same?

Both Democrats and Republicans have used this process to their advantage, and to the detriment of voters of every stripe, in New York no less than elsewhere. The current process is bogged down as incumbents bicker over who can grab more for themselves. Governor Cuomo has boldly tried to break the cycle, by threatening a veto of the legislature's latest, something predecessors have been unwilling to do.

The veto threat is right. But maybe, just maybe, not the veto itself. A veto would likely throw matters definitively to the courts, which is a slow and expensive route -- and involves a responsibility the courts don't want. Just look at the ongoing mess in Texas.

A veto is also a one-time answer. It is essentially a spanking -- it stings, but it's temporary, and will not ultimately stop the bad behavior when Cuomo is no longer governor.

The meaningful veto threat, however, provides abundant leverage. If Cuomo used that leverage to have the courts draw maps now, it would consign us to repeat the same nonsense in 10 years. Instead, he could look to the future.

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February 23, 2012

Petherbridge blog.jpgBy Professors Lee Petherbridge & David Schwartz

Legal scholarship has been under sharp attack, particularly when it comes to the role some believe it should play in support of the legal profession. In recent remarks, Chief Justice John Roberts explained that he does not pay much attention to it, reportedly stating that legal scholarship is not "particularly helpful for practitioners and judges." Moreover, Chief Justice Roberts is not alone in his criticism. Judge Harry Edwards has characterized legal scholarship coming from "elite" law faculties as "abstract scholarship that has little relevance to concrete issues, or addresses concrete issues in a wholly theoretical manner" and offered his impression that judges, administrators, legislators, and practitioners have little use for much of the scholarship.

[Click here to continue reading about the findings of their study at Cornell Law Review's Legal Workshop.]

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February 22, 2012

Caplan2.jpgBy Associate Professor Aaron Caplan

When can the government punish liars? The question is being debated today in the Supreme Court, as it hears oral arguments in United States v. Alvarez. In this case from Southern California, the defendant said during a public meeting that he had received the Congressional Medal of Honor. He hadn't. The government prosecuted under the Stolen Valor Act of 2005, which makes it a federal crime for any person to "falsely represent himself or herself, verbally or in writing, to have been awarded any [military] decoration or medal" -- even if no medals or related documents are counterfeited, and even if no one is financially harmed or suffers other personal injuries as a result of the false statement. It would be constitutionally acceptable for the government to prosecute someone who told this or any other lie as part of a scheme to defraud others. But in this case, the defendant's bogus boasts were not used to cheat anyone, but only to scratch some inner itch within his own personality. As it happens, his lies were quickly and publicly exposed, and he was ostracized by his community. Alvarez's behavior was certainly undesirable, but may he be sent to prison simply because society considers his lies morally objectionable?

I previously wrote about Alvarez for the American Constitution Society blog in 2010 when the Court of Appeals for the Ninth Circuit ruled 2-1 that the law was unconstitutional. Last fall, I asked nine students in my First Amendment class to sit as their own Supreme Court, applying existing free speech precedents to this novel situation. As a teacher, I was hoping that the class would be evenly divided to allow a lively classroom debate. There was plenty of debate, but in the end my justices reached a strong majority position -- by an 8 to 1 margin -- that the law was unconstitutional. They reasoned that the Stolen Valor Act punishes speech that does not fall into any of the narrowly defined categories of less-protected speech where the government is allowed to punish based on content. False statements that are part of a scheme to defraud are one proscribable category. False statements that damage another person's reputation (defamatory speech) are another. But my students overwhelmingly rejected the idea that these and similar categories were merely examples of a broader category of false statements in general. These students saw a great danger in allowing the government to decide what counts as the truth, unless such a judgment is required to redress an identifiable harm to others that the speech caused. Governmental action against speech is not justified merely because the speech is offensive to many (or most) people. They noted the historically-proven risk that such laws could be used against the government's political opponents, and argued that the truthfulness of Alvarez's speech should be judged in the marketplace of ideas -- which it was -- and not in a criminal courtroom.

A few months after our in-class exercise, the Court of Appeals for the Tenth Circuit issued a 3-0 decision in United States v. Strandlof that disagreed with the Ninth Circuit decision in Alvarez. My dissenting student was elated that his position was now supported by four out of the six federal appeals court judges who had considered the case. We will learn later this year whether the U.S. Supreme Court will dare to disagree with the collective judgment of a majority of my Loyola students.

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February 21, 2012

laurenwillisblog.jpgBy Professor Lauren Willis

This appeared on the Huffington Post.

The official question presented in the Supreme Court case Freeman v. Quicken Loans is whether the Real Estate Settlement Procedures Act (RESPA) "prohibits a real estate settlement services provider from charging an unearned fee only if the fee is divided between two or more parties." The real question presented is whether the price people pay for obtaining a mortgage must be transparent, a price tag like any other.

RESPA says: "No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed."

Some courts have held that this only prohibits kickbacks, such as when a broker (or loan officer, if the borrower is dealing directly with the lender) selects a title company for the borrower, the borrower pays the title company a $2,000 fee at closing, and the title company gives the broker or lender a $500 cut of that fee. Other courts have held that it also outlaws (1) bogus fees, such as when a broker or lender charges a $500 "loan discount fee" but then does not give the borrower any discount on his loan's interest rate, and (2) hidden overcharges, such as when a broker or lender tells the borrower that the "title inspection fee" is $2000 but the title company only charges $1,500 and the broker or lender pockets the difference.

When Congress enacted RESPA, the kickback scenario was a major concern. Therefore, in the subsection of the statute preceding the one quoted above, Congress prohibited giving or receiving "any fee, kickback, or thing of value" in exchange for referring business to a real estate settlement service provider. Having already prohibited kickbacks, Congress clearly intended the subsection prohibiting charges for services that were not actually performed to prohibit something other than kickbacks.

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February 19, 2012

JeffAtikwb.jpgBy Professor Jeffery Atik

On January 31, in yet another Transatlantic beer conflict, Europe's General Court upheld the determination of the European Trademark Office (OHIM) to deny the trademark registration of "Victoria de Mexico", a long-established beer brand from Mexico. Case T-205/10. Grupo Modelo, the owner of Victoria de Mexico, launched the Victoria de Mexico brand in the United States in 2010 and hoped to replicate this success in Europe. It shall not be. The European trademark application for "Victoria de Mexico" was rejected, due to the successful opposition of a rival Spanish beer, known as "Victoria". The Spanish Victoria has been marketed since 1928, and has held trademark registrations in Spain and Europe since 1994 and 2002 respectively.

Article 8(1)(b) of the European Trademark Regulation states that a trademark shall not be registered in the event of an opposition by a prior trademark proprietor where "because of its identity with or similarity to the earlier trademark and the identity or similarity of the goods or services covered by the trademarks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trademark is protected . . ."

The General Court upheld the Trademark Office's finding that the proposed "Victoria de Mexico" mark would cause a likelihood of confusion, including a likelihood of association, with the existing "Victoria" brand.

victoria.jpg

The General Court noted that the two marks -- "Victoria de Mexico" and "Victoria" -- would apply to the same product: beer. Given the identical product space, the likelihood of confusion is considerably heightened. In examining the two marks for similarities, the General Court, following European precedent, divided its analysis into three parts: visual, phonetic and conceptual. Further, the Court explicitly considered the perception of the marks by two idealized European beer consumers: one who understands Spanish (or another Romance language or even -- perhaps -- English) and one who does not. The challenge of protecting traditional trademarks, rooted in particular national languages, which now function across the multilingual European market is deftly explored.

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February 17, 2012

Caplan2.jpgBy Associate Professor Aaron Caplan

We've all been there -- puzzling over the difference between impleader and interpleader, or crossclaims and counterclaims. Unfortunately, the Federal Rules of Civil Procedure contain very few definitions for their many terms of art. When my civil procedure students look for guidance from ordinary English dictionaries, or even Black's Law Dictionary, they are likely to find either no definitions or definitions drawn from other areas of law that may use the terms differently. To help them, I created a short glossary containing definitions geared towards the litigation system created by the Rules. Since every litigator needs to be a perpetual student of civil procedure, I am making the glossary available online.

This glossary does not attempt to define terms commonly understood ("trial"), complex terms that require knowledge of a full body of law ("jurisdiction"), or terms that are adequately defined by the Rules themselves ("initial disclosure" under Rule 26(a)(1)). But if you're ever lost in the woods and need a quick reference to tease apart an affidavit from a declaration, or to figure out if you are filing a pleading to which a responsive pleading is required, it may be just what you need.

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February 16, 2012

Stephanos Bibas from the University of Pennsylvania Law School spoke on "Notice and Comment Sentencing" in Loyola's Faculty Workshop Series. He teaches Law and Criminology at Penn Law and is the director of the school's Supreme Court Clinic.

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February 16, 2012

Jessica Levinson Summary Judgments Blog.jpg By Associate Visiting Clinical Professor Jessica A. Levinson

This op-ed originally appeared in the Los Angeles The Daily Journal.

This month marks the two-year anniversary of the U.S. Supreme Court's much maligned decision in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (Jan. 21, 2010). In that case, a bare majority of the Court found that for purposes of spending money in the political marketplace, corporations must be treated as identical to people. The Court also ruled that expenditures made independent of candidate campaigns - no matter how large those expenditures are - cannot be corrupted.

The result of the Citizens United decision is that corporations can spend unlimited sums in elections. We have already seen the consequences in the Supreme Court's handiwork with the advent of Super PAC spending in Iowa and New Hampshire. This is surely only the beginning.

Since the Supreme Court's January 2010 decision, many have been scrambling to find new ways to limit the influence of money in politics. One largely unexplored way to limit the negative consequences of money in electoral campaigns is to institute temporal restrictions on campaign contributions. I recently published a law review article, entitled "Timing Is Everything: A New Model for Countering Corruption Without Silencing Speech in Elections," in which I advocate for the imposition of limits on when money may be given and spent during campaigns.

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February 7, 2012

NeJaime2.jpgAssociate Professor Douglas NeJaime has followed the Proposition 8 legal battle closely. His early assessment of the Ninth Circuit's decision is below:

In a 2-1 decision, the Ninth Circuit Court of Appeals ruled that Proposition 8, the California constitutional amendment that eliminated the right to marry for same-sex couples, violates the federal Constitution. Writing for the court, Judge Reinhardt decided the case in the most narrow fashion available, basing his holding on the unique situation in California. The state maintains an entirely separate system for same-sex couples (domestic partnership) and provides all the same state-law rights and benefits of marriage through that system. In addition, unlike in other states, same-sex couples enjoyed the right to marry in California and had that right withdrawn by Proposition 8. Based on these unique facts, the court concluded that Proposition 8 fails to meet even the lowest level of scrutiny under the federal Equal Protection Clause. By ruling in a narrow fashion and basing its holding on the reasoning of Romer v. Evans (the U.S. Supreme Court decision striking down Colorado's Amendment 2, which withdrew and prohibited antidiscrimination protections for lesbians and gay men), the Ninth Circuit decided the case in a way that would allow the Supreme Court to affirm without having to significantly expand on its existing jurisprudence and without having to rule on marriage for same-sex couples on a national scale. In effect, the Ninth Circuit's decision allows the Supreme Court to continue the incremental, case-by-case trajectory of marriage for same-sex couples in the United States.

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