University of Louisville Law Faculty Blog

UPDATED: An Affection for Our Bonds: Department of Revenue of Kentucky v. Davis

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Fans of the dormant Commerce Clause and/or Kentucky treasury, will be pleased to know that the transcripts of Monday's oral arguments before the U.S. Supreme Court in Department of Revenue of Kentucky v. Davis (06-666) are now available: http://www.supremecourtus.gov/oral_arguments/argument_transcripts/06-666.pdf.

SCOTUS Blog has a brief analysis of the case, which turns on whether Kentucky can favor its own government-issued revenue bonds by making them exempt from the taxes levied on the bonds of other states. It is perhaps a little less interesting than Kentucky's other case before the court (lethal injection), but with bonds being touted as the magic solution to everything from Louisville's library system to new university buildings, the issue is certainly not trivial. Of course, the real interest is seeing where the two Bush-appointed justices will come down in the Court's evolving view of the Commerce Clause.

 

UPDATE: TaxProf Blog has posted a round-up of commentary on the case here.

 

New Publications

Hello,

It has been a busy year. I have finished working on two new books for Carolina Publishing. The manuscript for an Evidence book and a Products Liability book are both in the hands of the publisher. The books should be out sometime early next year.

Lawyers Defend Constitution, Independent Judiciary

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Link to New York Times

The crisis in Pakistan throws into stark relief the importance of the bench and bar in protecting the rule of law in a representative democracy. When voices (including a U.S. senator) attacked the U.S. federal courts for upholding legal precedent in the Terry Schiavo case--even hinting that the violence against judges was justified--national, state and local bar associations rightly condemned these attacks and rallied around the principle of an independent judiciary. However the lines formed by the American bench and bar did not have to face lines of riot police. In Pakistan, lawyers are in the streets, almost alone, to defend that nation's supreme court from measures designed to subvert the Pakistani constitution and neutralize the judiciary. (Their surest allies are the Pakistani press, another institution whose freedom is vital to a democratic state, but, like lawyers, are regularly villified in quieter times).

Now it would be easy to say, like Gen. Musharrif, that Pakistan is under seige by extremists who have no love of democracy and that this measure, in the long run, will allow democracy to return stronger. However, the lawyers of Pakistan know that adherence to the rule of law is not a luxury to be put away in times of crisis but in fact is the basis of a stable society. The Pakistan lawyers are to be commended and their example kept in mind as we in the U.S. continue to grapple with the issues of preserving our essential rights as we fight a long struggle against terrorism.

For extensive coverage of the Pakistan bar protests, see JURIST's Pakistan aggregator.

Laptops in the Classroom

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The latest issue of the ABA Journal has an article regarding an issue that has been much-debated at Louisville Law (Jill Chanen, Profs Kibosh Students' Laptops, A.B.A.J., Nov. 2007, at 16). The article cites Chicago-Kent and Duke as examples of law schools that once required students to own and use laptop computers, but which have recently dropped the requirement. Reasons for dropping the requirement include distracting other students because of watching pornography or gambling online during class, and students becoming less engaged in class because of slavish dependence on notes. Laptops have almost become a de facto requirement at Louisville, mostly because of the wireless network and because of administration of exams by computer. In reviewing classes, I have observed students emailing, looking at Facebook or MySpace, and shopping online. Some faculty would like to turn off wireless feeds in order to eliminate distraction. Others argue that students have always been distracted by crossword puzzles, Sports Illustrated, and notes to friends. I confess that I don't know the solution to this dilemma. I think that it's true that online access represents a particularly attractive distraction to students, one that is much more compelling than pre-laptop distractions. On the other hand, most students appear to use their laptops responsibly, and I'm sure they are a valuable tool for note taking and examinations. As an instructor, I prefer reading printed exams to handwritten exams, although I haven't noticed much difference in grade distributions. I will probably continue to permit my students to use laptops in class, until I see a deterioration in classroom performance.

An Education Horror Story, Literally...

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At this time of year it is impossible to turn the channel without a reminder of Bram Stoker's most famous character, Dracula. However, Mr. Stoker's taste for eerie tales did not end with with that classic. Two years after his death in 1912, Stoker's wife published a collection of his gothic short stories entitled Dracula's Guest.

One of the stories, "The Judge's House," concerned a mathmatics student studying for exams in a house haunted by the spectre of a cruel and vengeful judge embodied in a bell rope fashioned from the very hangman's noose that the old jurist had so often set in fatal motion. While it would have been more satifying (to me) if it had been a student reading for the bar, it nevertheless is a "ripping good yarn."

Lenz and Goliath

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On Oct. 26, ABC News reported the story of 18-month-old Holden Lenz, whose mother Stephanie had videotaped him dancing as the Prince song "Let's Go Crazy" played on a CD in the background. She posted the 29-second video on YouTube and within four months, twenty-eight people had viewed the video. Universal Music Publishing Group, which owns the rights to the song, filed a take-down notice and Lenz received a warning from YouTube that further copyright infringement could lead to cancellation of her account. She also received a threatening letter from Universal. According to the ABC story, Prince is especially aggressive in searching the Internet for unauthorized use of his music. Lenz appealed the takedown notice, and YouTube has reinstated the video. Because of its notoriety, the video has now been viewed 100,000 times. Lenz has filed a lawsuit against Universal for abusing the Digital Millennium Copyright Act. Regardless of the outcome of that lawsuit, this and other recent stories makes it clear that in the foreseeable future videos on YouTube will be more closely scrutinized for infringement. It will be interesting to see how the nature of the site will change as a result.

Social Networks Influence Litigation

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Prof. Metzmeier brought to my attention an article in the Oct. 15 issue of The National Law Journal ("Litigation Clues Are Found on Facebook," p.1) The impact of social networking is a subject we have discussed for quite some time, but in a different context. We have long been warning students that anything they place on Facebook or MySpace can be accessed by potential employers. When employers find incriminating photographs or descriptions of bad behavior on these sites, they often refuse to hire applicants who they see as unstable or using poor judgment. The article in NLJ describes how postings on these sites have influenced the outcomes of trials. The article says that one father succeeded in securing joint custody because his wife had posted sexually explicit comments on her boyfriend's MySpace page. "In another case, a husband's credibility was questioned because, on his MySpace page, he said he was single and looking." The article recounts enhanced sentences for defendants accused of DUI, because their pages on social sites contained photos of them drinking, or comments about getting drunk after arrest. Many times, people assume there is a cloak of confidentiality surrounding their sites and those of their friends. They don't appreciate the public nature of the sites or understand how the information might be regarded by people who are not within their group of online friends. This article makes it clear that everyone should be aware of the potential consequences of placing personal information on a social network site.

 

View the ABC News story at http://abcnews.go.com/TheLaw/story?id=3777651 

Georgia Supreme Court Releases Genarlow Wilson on Grounds Sentence Was "Cruel and Unusual"

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From the Georgia judiciary website:

"Atlanta, October 26, 2007 -- The Supreme Court of Georgia today ordered that Genarlow Wilson be released from prison. In a split 4-to-3 decision, the state’s highest court has upheld a Monroe County judge’s finding that Wilson’s 10-year-prison sentence constitutes “cruel and unusual punishment” under the Georgia and U.S. Constitutions. Wilson was convicted in 2005 of aggravated child molestation for engaging in consensual oral sex with a 15-year-old girl when he was 17. Under the law at the time, the crime was punishable by a mandatory minimum of 10 years in prison with no chance of parole, followed by registration as a sex offender. The law was amended July 1, 2006 making conduct such as Wilson’s a misdemeanor punishable by no more than a year in prison and no sex offender registration. But the legislature did not make the law retroactive, and the change did not apply to Wilson."

Judge Judy and Copyright

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I like Judge Judy. She has to resolve a case within 10 minutes or so, so she cuts through the formalities, drags out her "preponderance of the evidence" yardstick, and cautions litigants not to pee on her leg and tell her it's raining. Most of the cases involve jilted lovers, former roommates, and family members with loans that have gone bad. Last night, she heard a case where a school teacher hired a man with a sound studio to record some children's songs. The man agreed to do so, was paid the price he originally quoted, but then didn't produce the recordings. The copyright issue was kind of murky. The plaintiff school teacher made it sound like she had written the songs. The defendant claimed that he "obtained the copyrights" and that he wanted to use them himself, which suggested that maybe he had obtained licenses to use songs that the teacher had not written. Judge Judy decided the case based on contract; the teacher had paid $650 to obtain recordings, the defendant took the money but did not produce the recordings, and so the teacher was entitled to the return of her payment. Judge Judy said that the teacher was just seeking the return of her payment, so there was no need for her to determine who was entitled to use the copyrights (sic). Obviously, this case was really not about copyright law. I liked it because it brought to people's attention that the use of music requires some sort of permission. I know that many teachers assume that any educational use is fair use. In reality, I know that many of the things they want to do with copyrighted works, while being class-related and not benefitting them personally, don't qualify as fair use. Maybe next week Judge Judy will tackle an antitrust action.