• Archive for August, 2010

    Women and Jury Service

    by  • August 30, 2010 • Faculty Commentary • 0 Comments

    By Nancy Marder [via Chicago Daily Law Bulletin, Volume 156, Issue 168 (Aug. 27, 2010)]


    Aug. 26, 2010, marks the 90th anniversary of the certification of the 19th Amendment to the Constitution, which gave women in the United States the right to vote. The 19th Amendment delivered on its promise of suffrage, but did not deliver on one of the other badges of citizenship — jury service.

    It has taken about 90 years for us to reach the point where women are permitted to serve as jurors in federal and state courts, where official and unofficial practices no longer keep women from actually serving as jurors, and where society’s expectations are that both men and women will serve as jurors.

    As a sign that the aspirations of the suffragettes are finally being met, consider the trial of former governor Rod R. Blagojevich and his brother, Robert. The jury consisted of six men and six women. The equal number of men and women was neither commented upon nor criticized; rather, it was simply accepted.
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    Is Facebook a Friend or Bully?

    by  • August 29, 2010 • Faculty Commentary • 0 Comments

    By Edward Lee [via Huffington Post, August 27, 2010]


    “Social” media giant Facebook just became less social. It filed a lawsuit this week against a small startup site called Teachbook, based in Northbrook, Illinois. Teachbook bills itself as “a professional, online community for teachers” where they “can create, share, and search a database of lesson plans and instructional videos created by other teachers, as well as find online courses, instructional modules, and other education resources.” Teachbook hasn’t even officially launched yet. But that didn’t stop Facebook from filing its lawsuit against the new site. So why is Facebook in such a tizzy?

    Well, Facebook claims that the term “Teachbook” infringes and dilutes Facebook’s trademark. Facebook doesn’t want others online to be able to use “book” in their names. You heard that right, Facebook claims ownership over the word “book” — at least as used in the context of trade names for businesses with online communities or networking websites.

    If you’re confused by Facebook’s argument, it’s understandable — the argument is a bit confusing. One of the key requirements of a trademark infringement claim is proof of a likelihood of confusion between the two marks in the eyes of consumers. It’s hard to imagine people would ever confuse Teachbook for Facebook, the second most trafficked site in the U.S. The two sites look quite different, and the names themselves indicate affiliation with each other just as much as “Kmart” and “Walmart” do. Of course, no one confuses Kmart for Walmart, or assumes their affiliation, just because they both have “mart” in their names. (more…)

    Professor Brody posts a new article on tax exempt charities

    by  • August 27, 2010 • Faculty Scholarship • 0 Comments

    Professor Evelyn Brody has posted her new paper All Charities are Property-Tax Exempt, But Some are More Exempt than Others on ssrn.  The article is forthcoming in the New England Law Review.  Here is the abstract:

     Attention from the media notwithstanding, the nonprofit sector continues to achieve remarkable success in state supreme courts and statehouses in defending property-tax exemptions. But budget pressures remain. While the intermediate use of “payments in lieu of taxes” has not yet become a systematic compromise solution, PILOTs are attracting growing interest from local taxing jurisdictions. This Article highlights three issues – who decides the parameters of exemption, legislatures or courts; what are the specific factors and vulnerable subsectors; and how exemption is granted or withheld in practice – and concludes with several PILOT case studies. The Appendix sets forth a fifty-one-jurisdiction review of state constitutions, statutes, and high-court decisions, and finds that the regimes generally are more similar than not.

    Download the paper here.

    Copyright and Remixing Kanye Tweets and New Yorker Cartoons

    by  • August 23, 2010 • Faculty Commentary • 0 Comments

    By Edward Lee [via Huffington Post, August 4]


    Something momentous is happening today on the Internet. Remix culture just won a major victory. A comedy singing group named Paul and Storm took a bunch of New Yorker cartoons and remixed their captions with tweets from Kanye West. The remixed cartoons were hilarious — the Kanye captions even better than the original! The Washington Post, Huffington Post and other blogs soon got into the action reporting and displaying the New Yorker cartoons remixed with Kanye Tweets. Someone even created a website, kanyenewyorkertweets.com, displaying all of the remixed cartoons.

    When I first got word of this remix activity, my first reaction was: How long will it take for the legal department of the New Yorker to shut this down? The New Yorker website is quite explicit that its cartoons, even when licensed, “cannot be adapted or altered in any way.” My guess is that the remixers here didn’t even have a formal copyright license to use the New Yorker cartoons, much less remix them.

    But, as I waited for the shoe to drop from the New Yorker, something surprising happened. The New Yorker expressed its approval on Twitter to the remixed cartoons, stating “We agree!” to Kanye’s tweet of “they put my tweets with @NewYorker cartoons hilarious!!” The New Yorker even posted one of the remixed Kanye/New Yorker cartoons on its Tumblr page. At least for now, the New Yorker appears to approve — and indeed enjoy — the remix of their cartoons.

    So what does this mean for copyright in our remix culture? Well, it confirms my theory (in “Warming Up to User-Generated Content“) that informal practices are just as important in understanding copyright as formal licenses and formal law. The conventional account of copyright — that “permission first” must always be granted before anyone uses a copyrighted work — is deeply flawed. Sometimes, and perhaps often, people’s unauthorized uses of copyrighted works are later accepted or condoned by the copyright holders. Here, Kanye appears to have given his blessing to the reuse of his tweets, so too the New Yorker with the reuse of their cartoons.

    So why is this important? It is important because it shows the promise of remix culture, as Internet guru Larry Lessig has written so eloquently about. When people can engage copyrighted works and “remix” them in new and quite interesting – -and, at times, hilarious — ways, we all benefit. The ability to remix is the ability to engage, to critique, to (re)create the world, and the material around us. To quote Kanye, “heavy is the head otherwise.”

    Read the original article here.

    Professor Knowles posts paper on habeas corpus

    by  • August 13, 2010 • Faculty Scholarship • 0 Comments

    Professor Robert Knowles has posted a new paper co-authored with Marc Falkoff entitled Bagram, Boumediene, and Limited Government.  The paper will be published by the DePaul Law Review.  Here is the abstract:

    The United States’ prison at Bagram Airbase in Afghanistan is the latest front in the battle over the extraterritorial reach of the Constitution. Habeas litigation on behalf of Bagram detainees has begun establishing how the writ of habeas corpus extends beyond U.S. territory to active war zones, and it has begun to refine the limits of presidential power in the war on terror. This Article explains why, as the courts wrestle with these issues, their foremost task should be to determine whether the Constitution authorizes the U.S. government to suspend the protections of the writ, rather than to discover whether detainees abroad possess a “right” to judicial review of the legality of their detentions. More broadly, we suggest that the U.S. Supreme Court’s new multifactor balancing test for determining the extraterritorial reach of the writ (announced in June 2008 in Boumediene v. Bush1) must be understood as embodying a limited government approach, rather than a rights-based approach, to defining the global reach of the Constitution.

    Download the paper here.

    Schwartz’s paper is getting lots of attention.

    by  • August 2, 2010 • Faculty in the News, Faculty Scholarship • 0 Comments

    Professor Schwartz's recent article on the citation of law review articles by federal judges is getting a lot of attention.  It was described by the National Law Journal.  It was mentioned by the Media Law Prof Blog and the Tax Prof Blog.  Larry Solum gave it the coveted "Highly Recommended" label on the Legal Theory Blog, and now the article has started a discussion on Concurring Opinions.  

    See what all the talk is about.  Download the paper here.