PrawfsBlawg

Book Club on "Corporate Governance in the Common-Law World"

Prawfs is excited to announce that we'll be hosting a book club for Christopher Bruner's "Corporate Governance in the Common-Law World: The Political Foundations of Shareholder Power."   The club will begin next Tuesday, May 13.  Joining Christopher and Matt Bodie for the club will be:

• John Cioffi, UC Riverside
• Andrew Gold, DePaul
• Joan Heminway, Tennessee
• Brett McDonnell, Minnesota
• Daniel Sokol, Florida

Hope you'll join us on Tuesday.

Signing Off (and Giveaway for IP Prawfs!)

Thank you to PrawfsBlawg for the (extended) guest blogging stint. As I sign off, I'd like to announce a little giveaway for the IP folks out there.

To celebrate the grand-reopening of my Museum of Intellectual Property – now with all exhibits up on the web – I am offering to any bona fide teacher of Intellectual Property or Trademark Law a swatch of fabric from an actual Qualitex press pad cover, resplendent in its trademarked green-gold color. As the IP folks will know, Qualitex successfully defended its color as a registered trademark in the landmark IP case, Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995) (holding that color can be registered as a trademark, overruling the Ninth Circuit).

What is that you say? You have the green-gold color in a slideshow? Unacceptable!!! The only way you can truly experience the Qualitex hue is live, and in person. As Qualitex notes on its website:

The Unique Green Gold Color is a Registered Trademark of the Qualitex Company. (The color on your screen may NOT be an accurate display of the Qualitex Green Gold!)

So, if you'd like yours, please send an e-mail with your physical mailing address to [email protected] by September 19. I'll need everyone's request by then so that I can know how finely to divide up the material that I have on hand. And don't worry, the Museum of Intellectual Property will retain a full, intact Qualitex press pad on display.

 

The Weird Politics of Post-Heller Gun Regulation

What I found most fascinating about the 2008 elections was the shift in political allegiances as issues changed and interests realigned.  The bailout was one example: criticism and support of the $700 billion loan plan cut across traditional political and economic allegiances.  The McCain-Palin populism was another.  And in the post-Heller era of gun regulation, I think we'll see another splintering of an ideological framework.

18 U.S.C. Sec. 3142(c)(1)(B)(vii) requires that those indicted on certain crimes must "refrain from possessing a firearm, destructive device, or other dangerous weapon" when out on bail.  In U.S. v. Arzberger, a federal magistrate judge found this provision to be unconstitional.  The case involved someone indicted on child pornography crimes. Here are some excerpts from the opinion (editing taken from Eugene Volokh at the VC):

A year ago, I might well have taken for granted the authority of Congress to require that a person charged with a crime be prohibited from possessing a firearm as a condition of pretrial release.... [But, given D.C. v. Heller, t]o the extent ... that the Second Amendment creates an individual right to possess a firearm unrelated to any military purpose, it also establishes a protectible liberty interest [for Due Process Clause purposes]. . . .

Again, the next step in the analysis is to apply the Mathews v. Eldridge balancing test. The private interest at stake is paramount: the right to possess a firearm is constitutionally protected. In Heller, the Court made clear that there is no hierarchy of constitutional rights: "[t]he very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon."  . . .

Accordingly, the Adam Walsh Amendments [the name of the statute involved here -EV] violate due process by requiring that, as a condition of release on bail, an accused person be required to surrender his Second Amendment right to possess a firearm without giving that person an opportunity to contest whether such a condition is reasonably necessary in his case to secure the safety of the community. Because the Amendments do not permit an individualized determination, they are unconstitutional on their face. The Government's application to impose as a condition of bail that Mr. Arzberger not possess a firearm is therefore denied....

Am I reading too much into the opinion, or is there an aspect here of "You asked for it, you got it!"  In other words, Heller is seen as a conservative opinion, given that it protects the right to bear arms.  But "tough on crime" measures are also generally seen as conservative, too.  Here, we have a "tough on crime" statute in direct conflict with a newly invigorated right to bear arms.  Perhaps some liberal judges will have fun with how this plays out.  Again, I am probably reading too much into the opinion, but isn't there some indication of a raised eyebrow to this line: "A year ago, I might well have taken for granted the authority of Congress to require that a person charged with a crime be prohibited from possessing a firearm as a condition of pretrial release...."

If you are interested in further discussion of Heller's interesting politics, you should read "From Ballots to Bullets: District of Columbia v. Heller and the New Civil Rights," by my colleague Anders Walker.  Here is the abstract:

This article posits that the Supreme Court's recent Second Amendment ruling District of Columbia v. Heller is a victory for civil rights, but not in the sense that most activists from the 1960s would recognize. Rather than a product of mid-century legal liberalism, Heller marks the culmination of almost forty years of coalition-based popular constitutionalism aimed at transforming the individual right to bear arms and the common law right to "employ deadly force in self-defense" into new civil rights. The implications of this are potentially great. By declaring the right to use deadly force in self-defense an "essential" right, the Court has just positioned itself to use the same due process analysis that it did in Roe v. Wade to invalidate municipal gun bans, without having to overrule past opinions like Cruickshank or even bothering to incorporate the Second Amendment to the states.