University of Louisville Law Faculty Blog

Twenty-Five Years

On April 7 I was one of the University of Louisville faculty honored at a dinner hosted by the University provost for at least 25 years teaching there, in my case 25 years.  While this is a milestone for any faculty member, it is incredibly meaningful for me.  As someone who has suffered from the second most severe mental illness for his entire professional career, I feel truly blessed that through the efforts of my doctors, therapists, family, friends, and myself I can realistically look forward to celebrating 30 years in 2016.

Workplace Privacy and Monitoring: The Quest for Balanced Interests

I had the wonderful opportunity to give The Littler Mendelson Employment and Labor Law Lecture on "Workplace Privacy and Monitoring: The Quest for Balanced Interests" at Cleveland-Marshall College of Law (Cleveland State University) on the evening of Thursday, March 31, 2011.  I am attaching copies of the handouts.  

Springsteen Lauds Reportage Contrasting Budget Cuts and Tax Breaks


Bruce Springsteen Letter to the Editor of Asbury Park Press: Story on poverty, aid cuts gives voice to voiceless


"Thank you for your March 27 front-page story by Michael Symons, "As poverty rises, cuts target aid." The article is one of the few that highlights the contradictions between a policy of large tax cuts, on the one hand, and cuts in services to those in the most dire conditions, on the other.

(Click here to see the article: As poverty rises, NJ cuts target aid.)

Also, you've shone some light on anti-poverty workers and analysts such as Adele LaTourette, Meara Nigro, Cecilia Zalkind and Raymond Castro, among others, all of whom have something important to add to the discussion: real information and actual facts about what is happening below the poverty line.

These are voices that in our current climate are having a hard time being heard, not just in New Jersey, but nationally. Finally, your article shows that the cuts are eating away at the lower edges of the middle class, not just those already classified as in poverty, and are likely to continue to get worse over the next few years. I'm always glad to see my hometown newspaper covering these issues."

Bruce Springsteen


Blogging backlog in China


I hope to catch up blogging abou the details of teaching and lecturing in China. However, if you are interested, we have been maintaining a family blog about our personal experiences, here. Make sure to look at the archives, to catch the early part of our Fulbright experience in China.


Trademark Team Takes National Championship!

The details are posted elsewhere on the law school web site, but I wanted to offer my personal congratulations. Marilyn Osborn and Whitney True did a great job. We've competed in the Lefkowitz moot court competition every year for the better part of 15 years. This is the first time we've won the entire competition. Last year, Marilyn Osborn was on the team that won the South Regional competition, with her teammates Justin Capps and Mari-Elise Gates. Special thanks to Jack Wheat of Stites & Harbison in coaching the team this year (and last).

Toward a Cohesive Interpretation of the Electronic Communications Privacy Act for the Electronic Monitoring of Employees


 I have just posted a draft of my article, "Toward a Cohesive Interpretation of the Electronic Communications Privacy Act for the Electronic Monitoring of Employees," forthcoming in volume 114 of the West Virginia Law Review on SSRN.  Here is the abstract. 

Professor Levinson proposes a cohesive interpretation of the Electronic Communications Privacy Act (ECPA) designed to protect employees' fundamental right to privacy in their electronic communications.  The difficulty of new technology outpacing the law's ability to protect employees' privacy from electronic monitoring by employers is widely acknowledged.  Yet, scholars have generally overlooked or dismissed the potential of the ECPA to provide privacy protection for employees in the electronic workplace, calling instead for reform through the legislative process.  Nevertheless, despite increasing calls from a broad range of entities for stronger privacy protections, passage of new legislation designed to adequately protect employees is, at best, not close at hand, and, at worst, unlikely.  On the other hand, several recent cases suggest that the courts are beginning to interpret the ECPA in ways that accommodate the changes in technology.  Indeed, despite the admittedly limited scope of its coverage, the ECPA can and should be interpreted to provide employees some significant level of protection for their electronic communications.  This article describes the details of how this can be done.

Questions during office hours


I told the students that I would have office hours on Thursdays from 1 to 4, and that they should stop by. I told them they should feel free to come and talk about anything, not just material from the class. The Fulbright program wants the scholars to engage the students in a cultural exchange, not just to lecture. Over a dozen of them took me up on my offer, and sat in my office for over three hours! 


Here are some of the questions and comments from students during my first office hours:


  • Why did you quit being a lawyer, and start teaching? (because of June and July. Actually, a great question, with an easy answer for me: I fell in love with teaching while I was getting my LL.M.)
  • Do you know the show Boston Legal? (to which I responded, I am Denny Crane)
  • Who is my favorite actor? (Obviously, William Shatner)
  • What do I think about the U.S.'s relationship with Taiwan? (Very complicated (I punted))
  • Tell me about your daughters. (They were very interested in hearing about them, and were all eager to meet them.)
  • Do you know the history of China? (as I admitted to them, some, but not much. I explained that Americans don't see much about China on the television, the way they see shows about the U.S. However, I cautioned them not to believe everything they see on U.S. TV shows, such as Boston Legal (I shudder to think that anyone would believe that law is actually practiced in the U.S. the way it is depicted on Boston Legal.)
  • What do you think about people selling DVDs on the street? (It's bad, but it happens in the U.S., too. I told them I thought that when Chinese artists, musicians and directors started demanding to get paid, then there would be more enforcement of copyright in China. One student summarized it best: when the internal demand for stronger enforcement increases, so will the enforcement of IP laws. As I pointed out to the students, for the first century of US copyright law, we did not grant protection to foreign authors. Dickens never got paid a dime for the publication of his books in the U.S. Once the U.S. started becoming an exporter of copyrighted works, then we began broadening the scope of protection for foreign works).
  • What do you think about Open Source software? (I said it's a neat idea that depends entirely on their being a strong copyright law - the GPL only works because it is backed up by copyright law.)
  • Do you know Lawrence Lessig? Have you read Lawrence Lessig's book Code? (Yes, but not personally. And Yes, I read "Code", which is an excellent book)
  • We would like to show you around Wuhan. Would you like to see the Provincial Museum? (Yes! and can you also take us shopping, so that we don't get ripped off by the street vendors (or as we Fulbrighters put it, paying "the foreigner" tax).

First Day of Classes

I just wanted to quickly post a picture of my class on Tuesday. I have 34 students. Only 2 are from Wuhan, although most are from other towns in Hubei province (Wuhan is the capital city of Hubei province). Other provinces represented are Hebei, Hunan, Henan, Shandong, Jiong Xi, Guangdong, Fujian, Shanxi, Guizhou (I think that's it).

I teach all of my class on the same day, so I started out with a presentation about me and about Louisville and Kentucky. During the next hour, I gave a lecture about the structure of the US legal system, comparing it in part to a civil law system, like the Chinese legal system. I emphasized the role of courts in our system, and particularly the role of the common law. Finally I ended with a quick introduction of the sources of law governing intellectual property. I had a few questions, but I think that the students were both nervous about the first day of class, and worried about their English. We're using an electronic casebook, written by a colleague at Lewis and Clark Law School. This permitted me to be able to acquire copies for all of the students, and easily distribute it to the class. We'll see how it goes: I've never taught using a digital casebook before, so it will be interesting to see how it works.

I have also scheduled office hours for the students. My first one was today, and my office was packed. Many stayed for over three hours. I told them in class that they could stop by and talk about anything, and they sure did. It was a lot of fun.

The Emperor of Beers






We went shopping on Saturday at a store that carries "foreign" foods (you know, Frosted Flakes and Skippy). While cruising through the isles, I was suprised to see what I thought was the King of Beers, Budweiser. However, upon closer inspection, it turns out it was a can of Blue Diamond 啤酒 (píjiǔ)(beer), with very similar trade dress to the American classic. That immediately got me in trademark mode, trying to determine if it was in fact infringing. Anheuser-Busch has been fighting a generally losing battle against Budweiser Budvar, including in China, but this beer appears to be Chinese, and does not use the word "budweiser" on the can. However, the color scheme is similar, and the name Blue Diamond empasizes the letters "B" and "D", perhaps to remind a consumer of the term "Bud"? What do you think?

At the Helmsley Building, the Little People Pay the Taxes


Leona Helmsley was known, in part, for her views on tax policy. "Tax is for the little people," she said.

If Congress's recent moves are any indication, she's right. Income inequality is the highest it's been since just prior to the Great Depression. Consider the impacts of the elimination of the estate tax and December's $318 Billion tax giveaway primarily to the wealthiest Americans in growing the deficit. 

Martin Sullivan recently examined the tax returns of the residents of the Helmsley Building in New York, calculated their effective tax rates and compared them to the tax rates of NYC janitors and security guards. The janitors and security guards have higher effective income tax rates than the mllionaires living in the Helmsley Building.

Should we consider the impact of tax policy on deficits as we examine the proposed budget cuts?