Sunday, May 09, 2021

Tawny Kitaen, sports, and speech

Actress Tawny Kitaen, who came to fame as Tom Hanks' love interest in Bachelor Party and in the video for Whitesnake's Here I Go Again, died on Friday. Kitaen was married to former MLB pitcher Chuck Finley, with whom she had two daughters. The marriage ended in 2002, following an April domestic-vi0lence incident.

So a quick note on Kitaen's connection to sport and speech. In April 2002, Finley, pitching for Cleveland, was warming up prior to a game against the White Sox in Chicago. Fans gathered near the bullpen to taunt him. The White Sox DJ then played Here I Go as Finley went to the mound. Following the game (in which Finley got rocked), the Sox fired the DJ. Unsurprisingly, I agree with this take: The Sox over-reacted, because "taking musical digs at an opponent is a well-established part of sports tradition." And while targeting someone's personal life is questionable, the personal has long combined with the athletic in the realm of cheering speech. The difference is it coming from the host team as opposed to fans.

Posted by Howard Wasserman on May 9, 2021 at 02:24 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Friday, May 07, 2021

Covid-19 Vaccines, IP Waivers, TRIPS, the WTO & Compulsory Licensing

On Wednesday U.S. Trade Rep Katherine Tai announced support of a waiver of IP protections. This is significant in many ways, not the least of which is the end of a hard American line against any softening of IP policy. Many of our colleagues are helping us understand the implications and meaning of this announcement, and I'm talking about it with a reporter this afternoon. The gist of it is that a waiver needs to be negotiated, can mean different things, and is very likely to be limited to the countries who cannot afford to pay. South Africa and India were the countries who proposed such a waiver from the World Trade Organization, and now there seems to be more willingness from the West to move toward such an agreement.

A waiver basically means that a country won't be in violation of TRIPS if it issues a compulsory IP license to manufacture vaccines (and also COVID-19 drugs). TRIPS already provides that during a crisis country can issue a compulsory patent license, but the proposed waiver would be broader as it will include also copyright and trade secrets and for any use, not just domestic. Still, many worry that the bottleneck at the moment is not IP but manufacturing capacities and the willingness of companies to share their know-how. Even with a waiver, it would be very difficult to force companies to share their secrets without their willing cooperation. 

For a good review of the issues, read Jorge Contreras here who as I blogged about in April 2020 has been a leader of the Open Covid Pledge. 

Posted by Orly Lobel on May 7, 2021 at 01:53 PM | Permalink | Comments (0)

Thursday, May 06, 2021

Judge Newsom goes Full Fletcher

The Eleventh Circuit held Thursday that a hearing-impaired individual has standing to bring ADA and Rehabilitation Act claims for damages against a municipality for failing to make videos on its web site accessible to the hearing impaired. (H/T: Longtime reader Asher Steinberg).

The notable part is the 50+-page concurrence from Judge Newsom, who goes Full William Fletcher to argue that there is no distinct Article III standing inquiry distinct from the merits, using examples from Fletcher's foundational article. What gets called standing is about the existence of a cause of action and the violation of a legal right and remedy, going to the merits of the claim and not to the court's jurisdiction. Congress' power to create causes of action is not unlimited. But the limitation comes not from Article III, but Article II and the power of the President to execute the laws. The requirement of a particularized injury is a way to distinguish public from private rights or actions to vindicate the rights of the individual--which Congress can enable--from actions, such as criminal prosecutions, to vindicate the rights of the general public--which reside with the executive and cannot be delegated to private individuals. Newsom acknowledges that his approach does not eliminate difficult line-drawing and hard questions to divide public from private rights. But there is value in focusing on Article II rather than Article and thus "seeking answers in the right place." And, I would add, value to analyzing it as a matter of merits rather than jurisdiction.

I could not have said this better myself. And I have tried in this space, a lot.

Posted by Howard Wasserman on May 6, 2021 at 07:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

End of (snow) days

I called this one.

Because everyone in my family was teaching and/or learning remotely for much of this academic year, we spent six months (mid-August to mid-February) in the Philly suburbs. We experienced the snowiest Philly winter in about a decade, with three major (6"+) snowstorms and 2-3 snow days. While taking a family walk in the snow, I wondered whether the year of remote learning signaled the end of the snow day--schools would shift to remote learning on those days in which weather prevents students and teachers from getting to the building.

New York City announced the elimination of snow days for the 2021-22 academic year, continuing the practice of the past year for many school districts. It made sense this year, when many schools were doing an in-person/remote hybrid; if half the school would have been remote, it made sense to make everyone remote for the day. But presuming schools are back to normal and everyone is in-person next year, this represents a major change, shifting the entire school from in-person to remote for the day. The arguments for this are clear--eliminating snow days gives the district control over the academic calendar and avoids the risk of the school year running (in the northeast) into late June. The arguments against it sound in nostalgia for the snow days of our youth.

In Miami, we do not have snow days, we have hurricane days. Eliminating these off-days is not an option, because a storm severe enough to close schools likely knocked out power and internet for teachers and students. On the other hand, kids cannot go out and play in the hurricane or its aftermath, so no one misses anything fun.

Posted by Howard Wasserman on May 6, 2021 at 09:31 AM in Howard Wasserman | Permalink | Comments (0)

Oral arguments

With the exams about over, I come to my favorite days of the semester today and tomorrow: Oral Arguments in my Fed Courts and Civil Rights classes. Each student argues one case before SCOTUS and serves as Justice on one case as a final project; the cases are recent decisions from lower courts. Ordinarily, the class spends the day in the courtroom watching one another and we bring in lunch and coffee; this semester will be via Zoom, hopefully for the last time.

This is a fun exercise. It gives students another chance to do oral advocacy, which many do not do after 1L legal writing. It allows me to engage the students to see how well they can talk about material, outside the formalities of a paper. The list of this year's cases is after the jump (case numbers are made up, usually representing key dates in my family).

Continue reading "Oral arguments"

Posted by Howard Wasserman on May 6, 2021 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, May 05, 2021

Limiting rules, no-hitters, and perfect games

John Means of the Orioles pitched a historic no-hitter against the Mariners on Wednesday. He faced the minimum 27 batters, did not walk a batter, and not hit a batter. But it was not a perfect game. In the third inning, Means struck out Sam Haggerty swinging at a curve ball that bounced through the catcher's legs and rolled to the backstop, allowing Haggerty to reach first. (It was ruled a wild pitch, although it should have been a passed ball; the pitch was not in the dirt and the catcher should have dropped down to block the ball). Haggerty was caught stealing, then Means retired the final 19 batters.

The uncaught third-strike rule is the cousin to the infield fly rule. As general principle, a person cannot be put out unless the last person to have the ball on the play catches and holds the ball. The catcher must hold onto strike three to record the out (although it counts as a strikeout, he must tag batter or throw him out at first), just as an infielder must catch a fly ball to record the out. The IFR reflects an exception to this general principle, where the defense gains an overwhelming advantage, thus an overwhelming incentive, by intentionally not catching the ball to complete the out. The rules establish a similar exception for third strikes--if a force is in effect on at least one base, such that the defense could get multiple outs if the catcher intentionally does not catch strike three, the batter is out even if the catcher does not catch it.

Retired U.S. District Judge Andrew Guilford, the sharpest critic of the IFR, would dump the third-strike rule along with the IFR. If a pitcher throws a great pitch that fools the batter (check the video in the link above; Means threw a vicious curve), he should be rewarded with an out, regardless of what his catcher does. I do not agree, but it is a consistent position.

Posted by Howard Wasserman on May 5, 2021 at 08:25 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Sunday, May 02, 2021

Rudyard Kipling's "The Old Issue"

In his Youngstown concurrence, Justice Jackson quoted the following verse from Rudyard Kipling: "Leave to live by no man's leave, underneath the Law." (Jackson quoted the same verse in his opening statement at Nuremberg.) The poem is called "The Old Issue," but was called "The King" in some publications. Kipling wrote the poem in 1899 just before the outbreak of the Second Boer War and implied that the Boers supported despotism while Britain supported liberty. I don't think that this was true, and the Boer War was sort of like the Crimean War--pointless. Nevertheless, the poem is interesting because Kipling talked at length about the abuses of executive power, which was, of course, the issue in Youngstown

At the end of the first stanza, Kipling invoked Magna Carta: "It is the King--the King we schooled aforetime!/(Trumpets in the marshes-in the eyot at Runnymede." Then in the second stanza he alluded to the execution of Charles I: "It is the King--inexorable Trumpets--(Trumpets round the scaffold at the dawning by Whitehall.")

Continue reading "Rudyard Kipling's "The Old Issue""

Posted by Gerard Magliocca on May 2, 2021 at 09:15 PM | Permalink | Comments (0)

Friday, April 30, 2021

Westerfield Fellowship - Loyola New Orleans College of Law - 2021

From Loyola University New Orleans:

Loyola University New Orleans is looking to hire one Westerfield Fellow. Start date: August 2021. Classes will be held on campus in New Orleans.

This position is designed for individuals pursuing a career in law teaching and seeking to gain law teaching experience, while being afforded time to devote to scholarship.  Applicants should have strong academic credentials and excellent written and oral communication skills.  The Fellow will be responsible for teaching two sections of legal research & writing to first-year law students in a three-credit-hour course each semester.  The Fellow will have a faculty mentor in addition to the other professors teaching in the program.  One-year contracts may be renewed.  The typical fellowship tenure is two years. Salary is competitive with fellowships of a similar nature.  Westerfield Fellows have successfully obtained tenure-track positions at ABA accredited law schools.

If you are interested in applying, please send your curriculum vitae and cover letter to [email protected]. Inquiries may be sent to the Chair of the Appointments Committee, Professor Bobby Harges at [email protected].  Review of applications will continue until the position is filled. We especially welcome applications from candidates who will add to the diversity of our educational community and who have demonstrated expertise in working with a diverse population.

Link to full ad:

Faculty Employment Opportunities | Finance + Administration | Loyola University New Orleans (loyno.edu)

Posted by Sarah Lawsky on April 30, 2021 at 11:17 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)