April 2012 Archives

Laurie Levenson, David W. Burcham Professor of Ethical Advocacy, was quoted in an LA Weekly article titled, "Then & Now: Images From the Same Spot as the LA Riots 20 Years Later."

Read the full article here.

Laurie Levenson, Professor of Law, William M. Rains Fellow and David W. Burcham Chair in Ethical Advocacy, wrote the following article titled, "Supreme Court's Rulings on Ineffective Assistance at Plea Bargaining Stage Call for New Efforts by Not Only Defense Counsel but Also Prosecutors and Judges," that was published in Bloomberg's Criminal Law Reporter on Wed. April 25, 2012.

"It is a big year for U.S. Supreme Court cases. Health care, affirmative action, GPS devices, stripsearches--the court selected many of the hot-button issues to decide this term. Among the most important cases are Missouri v. Frye, 2012 BL 67235 (U.S. 3/21/2012), and Lafler v. Cooper, BL 67236 (U.S. 3/21/2012). In these opinions, the court recognized that plea bargaining lies at the heart of the way that the current criminal justice system operates. Thus, the court's decision to set standards for defense counsel's assistance during plea bargaining has the potential to dramatically affect how plea bargaining is handled in this country."

Read the full article.

By Visiting Associate Clinical Professor Jessica Levinson

If you are reading this post, then you, like me, may get most of your political information online. You may also have a number of favorite political bloggers. You may appreciate their voice, perspective, point of view, or just find them entertaining. Most of my favorite bloggers have a particular perspective, and it is rarely hidden. I neither expect nor crave blogs devoid of opinion.

You, like me, may know a little background on your preferred bloggers. It helps me to evaluate how much weight or credibility I will give to a certain argument to know, as we say, where the author is coming from. What I likely don't know, however, is whether that blogger is paid by a political campaign. Ann Ravel, Chairwoman of the Fair Political Practices Commission, the state's political watchdog agency, would like to change that.

If Ravel's proposal becomes law then California would become the first state to provide such information to the public.

The freedom of the expression is one of the most important, if not the most important, right enumerated in the United States Constitution. With very few exceptions, people should be able to say whatever they want, and the public should be able to listen to whomever they want. The same is true, with equal or greater force, for members of the press, whose function is to provide information to the public. A government that censors political speech by some speakers would and should be repugnant to our sensibilities.

However, this proposal does not limit the amount of information the people can disseminate or the public could receive. Rather it would just tell us something about who is speaking, thus providing the public with more information.

Currently campaigns must disclose payments to bloggers, but bloggers need not disclose payments received from campaigns. That may soon change. The details and legality of this plan must be worked out, but it is certainly worthy of serious discussion.

Here is a disclosure of my own. I know Chairwoman Ravel and have great respect for her. Therefore when she makes a proposal I give it weight. It seems the public should be entitled to make a similar judgment about their political bloggers by knowing who is helping to fund their speech.

Jessica A. Levinson is a visiting associate clinical professor at Loyola Law School. She studies governance issues, including campaign finance, ethics, ballot initiatives, redistricting, term limits, and state budgets.

[This post also appeared on kcet.org.]

By Professor Jay Dougherty

A complaint filed by the magician Teller of the team Penn & Teller against a Dutch magician has been receiving much press and attention lately. Read more about the case here. It presents some fascinating issues and if they are not resolved on other grounds it could lead to the first decision regarding a category of works added expressly to the 1976 Copyright Act, namely those of "pantomime." I've written the leading article on the subject, "Now You Own It, Now You Don't: Copyright and Related Rights in Magic Productions and Performances," which was published in a book called "Law and Magic: A Collection of Essays." (The book is available on Amazon.) Professor Jim Grimmelman has posted a nice blog about it, hitting some of the issues.

Here's one link to Teller's copyright registration for his illusion, "Shadows." The claim is a "pantomime drama." The registration might have presumptive validity. As discussed more fully in my article, there's no statutory definition of pantomime, but the Compendium II of Copyright Office practices defines "pantomime" in part as: "the art of imitating or acting out situations, characters, or some other events with gestures and body movement." From what I've read of Teller's piece, and the illustrated "script" for it that was attached to his registration, it sounds like that could apply here. If so, copyright law gives him an exclusive right (in the U.S.) to "publicly perform" it, "publicly display" it, or "prepare derivative works" adapted from it. (It's not clear how one would "display" a pantomime, maybe in a still photo? There's a case finding which proves that still photos could infringe a choreographic work.) Of course, a court won't give copyright to the mere "idea" of the illusion, and since the YouTube video of the defendant's act has been removed I haven't compared the two. Also, the "method" or "system" of the illusion--how it is actually effectuated--might not be protected, although this can be a complex issue. There is also the "useful article" problem, but it would be interesting to see how a work that "portrays the appearance" of cutting a rose by cutting its shadow would be assessed. There would probably be some "thin" protection, but if the defendant's work is too similar in its expression, coupled with the presumption of validity, this suggests that Teller has more than a ghost of a chance!

By Professor Laurie Levenson

What do criminal law professors do in their spare time? Read legal thrillers, of course. This year, Charles "Chuck" Rosenberg, has given us a gem of a book and it will be particularly fun to read for those even vaguely familiar with some of the high-profile cases Los Angeles has hosted. It is a book that expertly provides an autopsy of what makes our criminal justice system tick.

Rosenberg is a survivor of the so-called Trials of the Century. He cut his teeth as a consultant for such prime time television shows as "L.A. Law," "The Practice," "Boston Legal" and "The Paper Chase." He sat through every moment of the O.J. Simpson trials (criminal and civil). He is an expert in law and popular culture, using his position as an adjunct professor to teach students how the arts mirror real life and how real life can start to mirror fiction.

In his first novel, "Death on a High Floor," Rosenberg takes a candid look at the mega-law firms today by using a most unusual literary vehicle -- an unsolved murder case. With tongue firmly planted in cheek, Rosenberg starts his work with the line, "I am a lifer." The "lifer" is not a person on death row (at least, not yet), but rather refers to Robert Tarza, a senior partner at a major law firm who has been accused of killing one of his fellow partners, Simon Rafer. Tarza may be a brilliant civil litigator, but he is an idiot of a client whose mistakes at the beginning of the investigation give the police much too much probable cause to believe he is the killer.

Nothing is ordinary about this case. Tarza picks a "kick-ass associate" named Jenna to be his counsel. There are many reasons she might not be the expected choice to lead one's murder defense. Start with the fact that she has never handled such a case. Add to it the fact that she had slept with the victim and lives with the defendant, and you have a most unusual attorney-client relationship. Jenna, in turn, has the good sense to dredge up the lifer, a seasoned defense lawyer who has played the field forever. He knows murder cases and he knows (often intimately) the judges who handle them. But, his life of experience also makes him jaded, leading him to spar with his client and Jenna over their approach to the case.

The book winds through the discovery of the murder, to the pretrial investigation, to the witness-by-witness description of the preliminary hearing. Jenna is much more than a pretty face. She is a lawyer who has natural instincts for how to work a courtroom. Preparation is key, but being able to read people is probably the most valuable courtroom skill that someone in her position could have.

"Death on a High Floor" is about much more than the twists and turns of solving a great murder thriller. It is about seeing the Los Angeles legal community for what it is. It is populated by different civilizations -- the law firms who rule from their high floors, while criminal prosecutors and defense lawyers toil in the trenches down below.

As richly described by Rosenberg, law firms are worlds to themselves. Minute-by-minute the lawyers are monitored, yet it is still impossible to know exactly what everyone is doing. Moreover, partners will literally "back stab" each other. Associates are banished to separate floors to toil until they can climb the ladder to join the partners' ranks. Money is on everyone's minds, and not just the kind that comes from billable hours.

The book presents us with familiar characters for our Los Angeles criminal justice system. The chief detective on the case, Lionel Spritz, could give the O.J. investigators a run for their money. The preliminary hearing judge is an amalgam of judges we have seen in real life high-profile cases -- they know they must struggle to maintain control over a high-profile case, yet still have enough flexibility to allow justice to prevail when uncontrollable things begin to occur. Rosenberg even gives us the "Blob" (his affectionate term for the media). The Blob is omnipresent, like vultures who lead other animals to the scene of a kill. Little do they know that they, too, are being used by those being preyed upon. Finally, there are the witnesses. Much like they did during the O.J. Simpson murder case, curious witnesses pop out of the woodwork to team up with the defense and prosecution.

By Associate Visiting Clinical Professor Jessica Levinson

This op-ed originally appeared in the April 4, 2012 edition of the Daily Journal.

We the Corporations?

While the Republican presidential nominee and the ultimate victors of contests throughout the nation may be unknown, one thing is clear: the 2012 election will break campaign fundraising records. This is the first presidential election since the Supreme Court's fateful decision in Citizens United v. FEC. Since that decision, there has been a proliferation of campaign spending, most notably by so-called "Super PAC" organizations. These are independent-expenditure only political committees. Republican-backed Super PACs have already raised $81 million to date this election cycle. (Interestingly, only 17 individuals account for contributing nearly half of that amount to Super PACs.) Because of regulations promulgated under the internal revenue service, contributions by certain non-profit organizations to these Super PACs can remain undisclosed, and therefore hidden from public view.

So how did we get to this place of largely anonymous, largely unlimited campaign spending? The Court's decision in Citizens United, while surprisingly incremental in some ways, opened the doors for the record-breaking spending we are now seeing. In Citizens United, the Court essentially came to two conclusions. First, the Court said that speaker-based identity restrictions are impermissible. This means that if a restriction cannot be validly imposed on an individual, then it similarly cannot be imposed on a corporation. Second, the Court found that independent expenditures are not corrupting. So go ahead and spend $100 million in support of your favorite candidate (or against that candidate's opponent). As long as your expenditure is "independent" it cannot corrupt, according to our nation's highest court.